Complainant

Respondent

Parties

Muhammad Kashif

Aldi Stores Limited (Ireland)

Representatives

 Constantine Mc Mahon BL instructed by  Michael O'Donnell Solicitors

Kiwana Ennis BL instructed by  Vincent & Beatty Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00056582-001

05/05/2023

On May 5, 2023, The Complainants Solicitor submitted a complaint of unfair dismissal to the WRC. On 16 May 2023, the WRC sought clarifications on omissions on this complaint.

On 19 May 2023, the Complainants representative submitted that he had been unfairly dismissed on 21 February 2023. The WRC expressed some concern on the complainants recorded start and cessation dates of employment.

These matters were clarified, and the Respondent was placed on notice of the complaint on 9 June 2023.

The Parties were invited to hearing set for 31 May 2024.

On May 22, 2024, the Complainant side filed their outline submission. This was followed by a final submission with attached documents.

On 28 May 2024, I approached the Respondent Solicitors seeking a copy of the Respondent submission. This was furnished to the Complainant side prehearing, and I received a copy of this submission at hearing.

At the conclusion of the hearing, I sought a table of loss and mitigation and a pay slip from the complainant’s new work within 7 days. These were received and shared with the Respondent for comment.

On 11 June 2024, I wrote to the Complainant Solicitors and sought sight of the Court Order which involved the Complainant in November 2022. I mentioned that neither party had incorporated it into their booklets, and I had reached a stage in my deliberations where I wanted to see this.

I asked that the complainant give his permission for my consideration of the Court Order.

In the absence of any response, I wrote again on June 21, 2024, and stated that the

 “Request required a response “

I gave an extension of time to June 28, 2024

  I am prepared to extend that window of time from today until next Friday June 28, 2024, after which in the absence of the requested, I will conclude that the request is declined.

I did not receive an acknowledgment or a response from the Complainants Solicitors. I have concluded that the request has been denied and have drawn inferences from the lack of response of any kind as the correspondence was forwarded to the same email from which the table of loss and mitigation was received post hearing.

The waiting time has contributed to my delay in completing my decision in this case.

The Respondent operates a large grouping of 160 Supermarkets in Ireland and has denied the claim. The Complainant had been employed on two successive fixed term contracts of 4 months duration from November 2020. He signed a contract of indefinite duration on 21 June 2021and worked across a number of fronts facing roles as Store Assistant / Cashier.

The claim for unfair dismissal has been denied.

Ms Ennis BL for the Respondent outlined that the Respondent had actioned a full and fair disciplinary procedure before his summary dismissal in February 2023. This dismissal arose from a finding of gross misconduct on foot of the complainant’s conviction for the criminal offence of sexual assault against a co-worker in a separate employment, whilst employed by the Respondent. The Service Manager reported it 6 weeks after the conviction was handed down which ignited the Company’s concerns.

The Respondent maintained that the decision to dismiss the complainant was:

“Reasonable and proportionate in having regard to the facts and circumstances of the complainants conduct in a workplace and the Respondents duty of care to all its employees “.

The Respondent submitted that they relied on clause 9 of the contract of employment, which provided for summary termination of employment in cases of:

“However, if you commit a serious breach of the terms of your contract with the company, the company is entitled to dismiss you summarily without notice. The following list gives some examples of behaviour that could lead to disciplinary action, with sanctions up to and including summary dismissal, but this list is not exhaustive.

9(k) conviction of any criminal offence (other than a minor motoring offence)”

The Respondent also operated a Rules of Conduct as incorporated into the staff handbook as a listing of examples of misconduct.

“If serious enough, may amount to gross misconduct warranting dismissal without notice “

Ms Ennis outlined a chronology in the case by way of a written submission.

She submitted that the complainant had pleaded guilty to a charge of sexual assault of a female colleague at a separate employment on 20 December 2022.

The Complainant received a 2-month prison sentence suspended for a period of two years. This was reported in the local print media and contained precise detail on the occurrence which led to the penalty.

Ms Ennis outlined that this print media report only came to the attention of Higher Management in February 2023.

The Complainant was suspended on full pay by Ms B, Area Manager pending investigation and to ensure the safety of staff while the allegations were investigated. This suspension was extended on 21 February 2023.

The Respondent activated the Disciplinary process, and the complainant was invited to provide his side of the story. He was provided with the print media article of 21 December 2022

The complainant was appraised of the gravity of the situation and the potential for his dismissal.

The Respondent hosted the disciplinary hearing on 21 December 2023, where the complainant attended alone.

The Complainant confirmed the conviction for sexual assault of a former colleague at a separate employment, which he had shared with his Line Manager, Ms A on 21 December 2023. This was endorsed by Ms A at interview on 23 February 2023.

The Respondent concluded the disciplinary hearing and found that the complainant had indeed informed his Line Manager of the conviction but found that the complainant was guilty of gross misconduct for having been found guilty of a criminal offence. Alternatives short of dismissal were considered, however, Ms A concluded that the appropriate sanction was dismissal without notice.

The Respondent offered an appeal, which was actioned by the complainant on 5 and 16 March 2023.

The Appeal took place on 28 March 2023 and was unsuccessful.

Counsel submitted that the case centred on proportionality. As a Store Assistant in a public facing roles and working alongside female employees, some in their first jobs, the Respondent was disappointed in the Complainant and was concerned at the potential for recurrence.

This would place the Respondent in vulnerable position if the complainant repeated his behaviour. The Respondent contended that future Litigation was foreseeable.

Dismissal was warranted as a response as there was a sufficient connection between the events which led to the suspended sentence and the complainant’s employment at the Respondent business.

Counsel submitted that the Adjudicator was bound to avoid stepping into the shoes of the Employer on the facts but to decide on whether the decision to dismiss fell “within the band of reasonableness “for a reasonable employer?

In calling on Bunyan v UDT [1982] ILRM 404 on the test of a Reasonable Employers response to the facts, the Respondent sought that application on the instant facts.

The Respondent cautioned against being drawn into undue leniency in the face of substantial grounds for dismissal in Kelly v CIE /1985, unreported.

In Allied Irish Banks v Purcell [2012] ELR 189, drawing on Lord Denning, UK Master of the Rolls in 1981

“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. but, if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view “

The EAT declared that it was not for the Tribunal to ask whether it would dismiss in the circumstances or substitute its view for the employers view but

“To ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the Court would have taken. “

Approved in O’ Brien v Dunnes Stores ltd UDD 1714 Labour Court

Bank of Ireland v James Reilly [2015] ELR 229

Counsel argued that proportionality of the sanction is to be assessed based on the facts and the particular employment as the Employer is entitled to protect its own specific interests through justifiable rules/ policies known and understood by employees.

Byrne v Marks and Spencer (Irl) ltd UD 826/2013, a zero-tolerance policy on theft would have been well known to the complainant. The dismissal was deemed harsh, but not unfair.

A Complainant v A Respondent ADJ 7474 ,2018, dismissal fair, proper notice of a zero-tolerance policy.

Crowe v An Post [2016] ELR 93, where the EAT held that a dismissal in response to a conviction in relation to extracurricular activity (MDA) was found fair as “a sufficient connection between the crime committed and the employers work, which rendered the employee unsuitable or that would be “capable of damaging the employers reputation “

A Former Employee v A Financial Services Provider ADJ 29687, 2022

Where a long servicing employee had pleaded guilty to fraudulently withdrawing €40,000 from a credit union account of an elderly family friend. The dismissal was found to be fair as given the nature of the business, trust and confidence in employees at every level was paramount.

In calling on the fundamental requirements of fair procedures

Kilsaran Concrete v Vitalie Vet UDD 1611 at the Labour Court, 2016.

1 Employee placed on notice of all allegations at the outset of the process

2 Strict adherences to a Published Disciplinary hearing.

3 In the event of an allegation being upheld, “any disciplinary sanction imposed is proportionate to the complaint that has been substantiated “

Evidence of Ms A Area Manager in a Cross Cover Arrangement:

Ms A has been in the role of Area Manager from 2019 with responsibility for staffing and health and safety. She held delegated authority to dismiss.

Her role in this case covers a period of time where she was initially cross covering for an absent colleague.

Ms A confirmed that the Complainant was guaranteed a 25-hr week with option for extra hours.

On February 10, 2023, her colleague Mr B, Area Manager in the Complainants own area handed her a newspaper article which detailed the complainants court case and conviction. He told her through the medium of phone and email “to look into it “and if necessary, start a Disciplinary process.

Arising from my inquiry, Ms A confirmed that the newspaper article originated from a Deputy Manager, Mr P   who had passed it to the Store Manager, Ms Z.

Ms A confirmed that the newspaper article was different to the one exhibited by the Respondent in the WRC booklet, and she had not worked on that one.

Ms A said that she suspended the complainant on two stated allegations and commenced an investigation.

She approached Ms Z, Store Manager and on February 28, 2023, established that she knew about the complainant conviction.

She recalled that the facts were not an easy consideration, and she was clear that dismissal was a last option.

However, she weighed up that the complainant was in a public facing role, where the staff had to be able to rely on each other.

Sexual Assault in the workplace crystallised matters as there were no viable options for transfer as females were omnipresent in all places.

Ms A said that she found that she had no other option for sanction outside dismissal.

During cross examination, Ms A confirmed that Mr Bs absence was due to his going on annual leave. She was clear that Ms Z had not disclosed the complainant’s conviction.

Ms A acknowledged that neither Mr B, Ms Z or Mr P were present for the hearing.

She appeared nervous as she sought to tie down the date on which she believed that newspaper article was brought to Mr Bs attention. She waivered between 9, 10 and 11 February 2023, but settled on 9 February.

She confirmed that she had read the news paper article and was struck with the gravity of the offence. She stated that “my role was to investigate if he had been convicted of a sexual assault? “

She confirmed that the complainant had no history of allegations against him.

When faced with being asked to comment on the 6 weeks spent in active employment post-conviction and prior to suspension? Ms A confirmed that nobody knew about it before the complainant’s colleague brought it to the attention of Mr B.

She refuted the need for investigation as the complainant had confirmed that he had been convicted and given a suspended sentence.

She added that “women were everywhere “in the business and there was no opportunity to transfer the complainant.

Ms A acknowledged in clarifications that she had no awareness of what the complainant was required to do to comply with the terms of the suspended sentence.

The Respondent had not completed his performance appraisals.

Staff at the Supermarket had not raised any concerns about the complainant.

Ms confirmed that she had not placed any weighting that a Higher Court had already decided an outcome and handed down a sanction.

When asked as to “what exactly had Mr B asked her to do? She replied, he asked me to investigate.

Evidence of Mr H, Store Operations Director

Mr H oversees a Team of Area Managers across Muster and Leinster and conducted the appeal.

He confirmed that he considered the submitted grounds of appeal by the complainant and then considered all the facts.

He acknowledged that this case involved a “serious criminal conviction “which the complainant confirmed occurred.

During cross examination, Mr H attested to having adopted fair procedures during the appeal.

He confirmed that a comprehensive investigation has been concluded. He checked the notes and clarified the evidence presented to Ms A.

Ultimately, he decided that the company was unable to absorb the level of risk as a result of placing the complainant back into direct contact with Personnel.

He acknowledged that two allegations raised at the outset had been reduced to one.

Mr H confirmed that the Company had run a comprehensive investigation and were not pleased at the lack of steps taken by the Store Manager in the aftermath of the Complainant disclosure of the conviction on December 21, 2022. He confirmed that no disciplinary sanction had been handed to Ms Z. He had considered alternatives to dismissal but could not reconcile these with the acknowledged Criminal Conviction.

Mr H checked the notes and clarified the evidence relied on. He disputed a lack of Investigation report and argued that the “facts were gathered “. He confirmed that he had considered fairness.

He confirmed that he was unaware of what the Court expected of the complainant following his conviction.

He did not place any weighting on the complainant’s continuous work pattern following the disclosure and prior to his suspension.

He rejected Counsels contention that the Investigation conducted lacked transparency.

At close of hearing, Counsel concluded that the facts of the case are agreed, and the case turned on proportionality. While the Company was not happy with the non-disclosure of Ms Z and the delay which followed, these were not determinative.

Instead, the Company is satisfied that a sufficient connection was established on an objective standpoint. The Complainant had erred in his judgement.

There was a delay prior to the Company acting in February, through placing the complainant on suspension, pending investigation.

An investigation followed, where there was no dispute on conduct and a fair process followed, where the complainant was afforded an opportunity to have representation yet declined.

While the outcome was admittedly harsh, it still fell within the “band of reasonableness “in respect of the test for connection between a criminal offence and the continuum of employment.

The Company had to be certain that there was a safe system of work. Ms A had acknowledged the challenge of the difficult decision. This was the correct decision for the company, due to the type of work undertaken by the complainant and his proximity to a high ratio of female staff. The Company’s reputation had been damaged by the negative print reportage.

There was no option available outside of dismissal and the company could not stand back and watch and wait for a recurrence of sexual assault.

The Respondent expressed some incredulity on the short measures engaged by the complainant in seeking to mitigate loss and placed him on notice of further proofs.

On June 6, 2024, the Complainants Representative furnished 8 pay slips to reflect the new work. They stated an inability to populate proof of mitigation and reflected back to the complainant’s own evidence at hearing.

On 27 June 2024, the Respondents Representatives were highly critical that the annualised demonstration of loss and a tabled mitigation had not been forwarded as requested.

Counsel pointed to a lack of candour on the complainant’s behalf and while the Respondent contended that the complainant was not unfairly dismissed, any analysis of financial loss under the heading of compensation should reflect that:

1 the Complainant had contributed to his dismissal.

2 there was a lack of transparency in declaration of financial loss.

3 the complainant had failed to mitigate his loss.

The Complainant worked as a Store Assistant with the Respondent Supermarket from 20 October 2020 to his dismissal for gross misconduct in February 2023.

He was paid monthly at €2,500 gross in respect of a 40-hour week (25 hours were guaranteed)

The antecedent event in this case surrounds a conviction received by the Complainant in the District Court in December 2022.

The Complainant wrote on his complaint form that he had been dismissed for a matter which had occurred outside of his workplace, and he deemed that his dismissal was unfair and disproportionate. He denied placing the respondent’s reputation into disrepute.

Prior to hearing, he had signalled that his preferred remedy in the event of his claim being upheld was either re-engagement or compensation. This was clarified as compensation at hearing.

The Complainant found new work in April 2023.

Mr McMahon in his prepared submissions outlined that on 22 December 2022, the Complainant had notified his Manager Ms Z, (not present at hearing) that he had been convicted of a sexual assault outside of his employment. He had informed Ms Z of this development and was permitted to carry on in his job.

In February 2023, the Complainant was advised of an impending disciplinary process and was suspended on full pay.

The letter of 13 February 2023, confirmed the suspension and allegations as:

1 You have been convicted of a criminal offence.

2 You failed to disclose this conviction to your line manager.

The Complainant attended disciplinary hearings across the dates of 23 and 28 February 2023. He went to these meetings alone.

Mr Mc Mahon submitted that insufficient regard had been applied.

“There was no inquiry into the details of the offending or the gravity of same “  

An outcome letter issued on March 1, 2023. The Respondent accepted that the Complainant had disclosed the conviction to Ms Z, his line Manager. However, the Respondent found:

“On foot of all the evidence, including your admission, I have found that you were convicted of a criminal offence on 20 December 2022”.

The Complainant was dismissed, effective 2 March 2023 for gross misconduct.

The Complainant appealed this decision to Mr B on 28 March 2023, but was unsuccessful.

Mr Mc Mahon BL has submitted that the Respondent decision to dismiss the complainant was disproportionate and unreasonable and has caused reputational damage to the complainant in addition to financial loss, due to his difficulty sourcing full time employment in the aftermath of the dismissal.

At hearing, Mr Mc Mahon acknowledged that the facts of the case were not in dispute. The Complainant had been notified of the conviction and suspended sentence in December 2022. One day later, he informed his employer.

The Court case was reported in the local print media and was covered in social media.

The Respondent did not take any action in the immediate aftermath of this reportage in the complainants “front facing role “.

Two months later, he was faced with a letter of suspension, a disciplinary process, which concluded in his dismissal without an apparent alternative course of action considered. He argued that this was a disproportionate action.

Mr Mc Mahon acknowledged that the issue is somewhat complicated in law as the event occurred outside “the company gates “

Evidence of the Complainant:

The Complainant outlined that he had been a good and loyal worker with the Respondent, working an average of 32-35 hrs a week. He had a clean Disciplinary record and earned c €25,000 per annum.

He confirmed that the proceedings which occurred took place at the District Court and not the Criminal Courts. He had been convicted of sexual assault, having pleaded guilty. He was handed a two-month prison sentence, which was suspended. He understood that he was not to get into trouble.

The District Court directed against contacting the other party in the matter or her husband.

He had told his Manager, Ms Z of the conviction on December 21, 2022, his next day at work. He was conscious that he had never been in Court before and wanted to make his Line Manager aware of these developments. He said he went into work an hour early.

 The Complainant outlined that Ms Z adopted a supportive role and confirmed that he would be supported, informing him that if the people involved in the Court case arrived at the shop, then he was to call a colleague to take over from him. No expressions of concern had been shared with him by this couple or the remaining staff.

The Complainant submitted that he gave an undertaking to “be good “.

The Complainant submitted that he had told “every single detail to Ms Z”. Ms Z was not present at hearing.

The Complainant said that he worked on without incident until he was suspended on 13 February 2023. He confirmed that the print media article on the court report of the District Court proceedings was put to him in the context of the Disciplinary hearing of February 21, 2023.

On that day, he was invited to meet with the Area Manager who was heading the Disciplinary process.

The Complainant outlined that he confirmed the details of his conviction and confirmed that he had already disclosed this detail to Ms Z.

He was dismissed and appealed this decision, requesting that the Respondent would reconsider this outcome.

He described a certain similarity between the process which led to his dismissal with that of his appeal. He described believing that the Appeals process was “rough and rude “and “their law was higher than the country law “.

He submitted that no thought was given to his family status after 2.5 years of employment when the decision to dismiss was upheld.

The complainant said that he tried to move forward in finding new work and he took the opportunity to commence as a Part time Pizza Chef at the end of April 2023 on 18-25 hrs.

During cross examination,

The Complainant accepted the presence of the provision on criminal conviction as part of his terms and conditions.

He confirmed that he was aware of the impending Court case from the previous year, May 20, 2022, but received the conviction on 20 December 2022.

He took on extra work to pay bills and worked in the fast-food outlet 2 or 3 times monthly.

He confirmed the accuracy of the print media article and confirmed that he had pleaded guilty and apologised. He acknowledged that the Judge had given him a second chance and he had not been entered on the Sex Offenders Register. He understood that the Prison sentence was actionable if he got into trouble.

The Complainant confirmed that he was not aware that Ms Z had made a record of his disclosures on conviction for sexual assault, December 21, 2022.

He recalled his suspension at 5.45 am on 13 February 2023. This was actioned by Mr M, deputy manager.

In his recall of the Disciplinary meeting of February 21, 2023, he confirmed to Ms A that he had mistaken the intentions of his accuser in his second job. He took responsibility, confirmed it was his mistake and he had entered a guilty plea.

He stated that he had kept the respondent local management aware of the forthcoming court case.

The Complainant disputed that his dismissal was justified and argued that the real reason for his dismissal was as a result of the Respondent being over staffed. He said that he had seen others dismissed in this way, but did not add names, dates or records.

He accepted that the Respondent were correct in dropping the first allegation as he had disclosed the matter internally.

He disagreed with the vulnerability of the respondent mixed sex workforce, when this was put to him. He responded that he contended that the court had given him a relief to keep living and the issue had been dealt with by that process. He argued that his family status as the sole earner informed his view that “a crazy person would repeat the behaviour “.

He denied that the Respondents reputation had been damaged by this Court report and the complainant’s conviction. He also argued that damage could not be anticipated as nobody at the respondent business had mentioned the court case for over two months following its conclusion. He confirmed that he wore a name badge during his work with the respondent, but nobody had raised concerns after the Court case.

The Complainant accepted that his live status as an Aldi employee had not featured during the Court case.

On the topic of mitigation, the complainant was vague on how he left the secondary employment. He said that he had neither resigned, nor had he been terminated. It no longer suited him.

He gave very limited evidence on mitigation and confirmed that he was unaware of his obligations in this regard.

He has since formulated a clear career progression in a separate Industry and confirmed that he was in the planning stages on furtherance.

He accepted that he had chosen to work part time and undertook to submit further details of mitigation post hearing.

The Complainant accepted that he was aware that his dismissal was under consideration during the disciplinary process.

In response to my clarifications on his decision to appear alone during his disciplinary hearing and appeal, he responded that he had “nobody else “

In seeking to gauge the Organisational awareness of the complainants’ disclosures of the impending court case, the complainant freely admitted that he had been signing on at the adjacent Garda Station for 2/3 months pre his case being heard at the District Court.

When asked to explain just why he believed his dismissal to be unfair, he responded saying that he believed that he had unfairly been put through “another trial “and the verdict was disproportionate. He concluded his dismissal arose from a downturn in store activity and an over staffing element.

Counsel for the Complainant acknowledged that within the concept of fairness, the employer has the right to dismiss an employee.

“Where this is necessary to protect its business interests”.

 without

 “Remorselessly pursuing their own interests “.

He argued that the employees’ interests must also be considered. The reason for dismissal must be identified and that decision justified by the Respondent.

Hennessy v Read and Write Shop ltd UD 192/1978 refers. Nature and extent of Inquiry followed by conclusions.

Counsel went on to gauge summary dismissal as “the nuclear weapon of the employer’s arsenal of disciplinary sanctions “.

In calling on Abdullah v Tesco Ireland PLC UD 1034/2014, EAT.

A reasonable employer is required to show that he/she had a genuine belief, based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and that the sanction of dismissal was not disproportionate.

Frizelle v New Ross Credit Union ltd,

5 Point test, reliant on point 5

The actual decision as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint and the gravity and effect of dismissal on the employee.

Crowe v   and Post [2016] ELR 93 was relied on asgiving detailed consideration to how Adjudication should approach a claim for unfair dismissal, where the dismissal arose from criminal conduct outside of work.

“a dismissal for misconduct outside the workplace can only be justified where there is sufficient connection between the crime committed and the employees work, in such a way that would render the employee unsuitable or capable of damaging the employer’s reputation “

Stressing, necessity for establishment of a connection between misconduct and the company’s operational requirements, a nexus between the employees conduct and the employer’s business.

In his analysis of the facts in Brady v and Post UD 463/1991, the absence of a nexus “proved fatal “The EAT found that the presence of a conviction for sexual assault during the complainant’s tenure as a cleaner did not make him unacceptable to others or that the employer’s reputation had been adversely affected “as he was not in a position of special trust “

Brock v An Post, necessity for disclosure. A Post was entitled to rely on the record of the District Court on its face value notwithstanding claims as to its authenticity.

Rochford v Royale Alarms ltd UD 218/1988  

Criminal offence acquitted on appeal as opposed to being required to answer an employer led question.

“Have you ever been in trouble with the police?

 At the conclusion of the hearing, Counsel concluded that the Complainant had been unfairly dismissed as there was no full inquiry of the offence which led to his dismissal.

He contended that the offence was not connected to his employment, nor did it bring disrepute or reputational damage to the Respondent.

The Complainant had informed his employer of his conviction and he understood that he was being supported by the respondent.

The decision to dismiss was disproportionate and unreasonable which caused the complainant a combination of financial loss and reputational damage as he had difficulty in finding “new work “

I have been requested to inquire into the facts surrounding the claim for Unfair Dismissal.

In reaching my decision, I have paid special attention to the oral evidence at hearing. I have also considered the helpful written submissions made by both Parties prehearing.

I was disappointed that the complainants’ representatives did not respond to my request for sight of the Court Order which led to the conviction and suspended sentence in this case. I made the request in good faith and having read through some of the legal decisions relied on by both parties in their submissions.

i.e. Brock v An Post, Crowe v  an  Post [2016] ELR 9, where the arresting Garda gave evidence to the EAT. Allied Irish Banks v Purcell [2012] ELR 189, Bunyan v UDT [1982] ILRM 404 on reasonableness. Clarke v CIE UD 104/1978

I will return to this later.

The Law on Unfair Dismissals rests in Section 6 (1) of the Act.

Unfair dismissal.

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal

The Respondent has relied on the permitted defence allowed in Section 6(4)(b) on Conduct as a justifiable and reasonable action cause for dismissal.

Section 6 (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

…….

(b) the conduct of the employee,

It is open to me as an Adjudicator to have regard for Section 6 (7) on reasonableness.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

I will state at the outset that I found this a very difficult case to decide as both parties presented in evidence as very attached to their genuine believes in their respective cases.

Much must be attributed to the dedication of each of the Representatives and their operation of the case pre and during the hearing. I am also grateful for the precision in detail in the Respondents last submission on loss and mitigation.

The Law is not completely settled on the matter and each case still needs to be judged on the unique facts of each case.

I can, however, comfortably start by discounting the Complainants assertions that he was dismissed as a casualty of reduction in business. He did not provide  evidence on this.

For me, it remains an assertion.

I cannot accept that the Respondent would have gone to the levels of engagement they did if a simple lay off or redundancy was at play. The Law is instructive on both of those scenarios of acquired rights. The reliance on this reason did not feature on the complaint form to the WRC from May 2023.

I am satisfied that the decision to dismiss the complainant dated March 1. 2023 and activated one day later, was based on the sole ground of the Complainant having been convicted of a criminal offence on 20 December 2022.

The earlier allegation of non-disclosure to the line Manager was not upheld following Ms Zs disclosure on February 23, 2023.

The Parties are correct on their helpful analysis of the various cases that they applied in this case. 

Each case has its unique players and facts. The Hearing received evidence from Ms A, Area Manager and Mr H, Operations Director alongside the Complainant.

 This case also hosted Ms Z the line Manager and Mr B, the Area Manager and Mr P who is attributed as submitting a Newspaper report to Ms Z of the Complainants Court case in February 2023.

None of these players were available at hearing. I accept that it was open to me to compel their attendance as relevant.

 However, the Parties accepted that Ms Z was notified of the conviction in real time in December 2022 by the Complainant himself. This was borne out on the recorded minutes, while not probative in Ms Zs absence, were not disputed.

It is notable that Mr B departed on annual leave in early February 2023 and delegated the management of the newspaper report to Ms A, only for him to feature again as a Note taker on 21, 23 and 28 February 2023.

Mr P , a deputy manager at the store , I would have liked to have met Mr P to explore just why the newspaper report was tabled at the employment when all parties accepted that no enquiries had followed from customers and the contingency plan formulated  between Ms Z and the complainant ( for him to vacate  his station ) had not been actioned  in the intervening period post the Court case?.

This demonstrates a lack of cohesion in Management at the store .

A careful reading of the Company Disciplinary procedure on the delegated authority to dismiss reveals.

“Where an employee has committed repeated breaches and procedural stages have been followed or has committed any action which is regarded as so serious as to justify dismissal without all prior stages in this procedure being invoked, then he will normally be dismissed from employment. Dismissal would be affected by your Area Manager (Store Assistants) “

This demonstrates a heavy emphasis on dismissal in the case of gross misconduct. However, the Complainant was dismissed by a Locum Area Manager and not the casted Area Manager in this case, who appears to have been a note taker.

Representation:

This part of the case has caused me some concern. The Complainant was invited to attend a Disciplinary hearing in the company of a colleague or friend, in accordance with the company Procedure.

The Complainant chose neither and attended all meetings alone. I find that this demonstrated a definite mistake on his behalf. From the initial invitation to the Disciplinary hearing on 16 February 2023, the Respondent clearly informed him that his future with the company was in jeopardy.

I asked the Complainant why when he had travelled through the Ordinary Courts with Representatives and then decided to walk alone through the Respondent activation of their Disciplinary process?

He replied that he had no choice as he had no one. I have difficulty with that pronouncement, given his longevity of residence in Ireland and his family presence.

I find that the Complainant acted to his own detriment in this regard. He would have benefitted from a separate pair of eyes and ears in the rooms where his past misdemeanour was actively discussed and his future at the business clearly under threat. These are complex areas.

His own actions denied him an Advocate and he should reflect on that omission.

If I can draw on an analogy in Shakespeare and the role of Portia in support of Antonio at a difficult moment in time when she uttered the memorable lines on “the Quality of Mercy… “

 as an example of advocacy.

I found a minimum thread of advocacy in the complainants’ own submissions to save his job.

 The task of representing self in such circumstances, in my opinion at least, is too much for one pair of shoulders.

Mc Kelvey v Iarnród Éireann [2019] IESC 79, refers where the then Clarke CJplaced having a legal representative into the exceptional, Burns and Castlerea territory.

I make no comment on a chosen representative apart from stating that the complainant had Counsel and Solicitor to guide him in his District Court case, while he took a solitary route in his workplace issue that arose 7-8  weeks later.

I will leave it at that.

Organisational Awareness of the Criminal Conviction:

There is no dispute surrounding the Organisations awareness around the complainant’s conviction from the time of its occurrence in December 2022.

The Respondent has urged me not to linger on this as it did not take away from their main concern that the complainant had breached trust and opened his employer for reputational damage.

However, for me, I was struck by an element of inconsistency in how the Respondent addressed both Ms Z and the complainant.

It appears that the Complainant was attending the nearby Garda Station for some time from May 2022 to when his Court case occurred. He stated that he habitually attended there in his breaks from work in the full knowledge of the shop.

His disclosure of conviction and suspended sentence to Ms Z did not prompt a recorded minute or an action plan outside of the planned contingency described in evidence.

I found that very unusual. It is hardly an everyday occurrence that an employee discloses something of the magnitude of a suspended sentence arising from an occurrence of sexual assault  in a separate workplace.

I have identified a shortfall in the Employers extremely comprehensive manuals in this regard. Put simply, there was no identifiable flow chart for this. Note, Clarke V CIE   on this, when in a very early case pre the Section 6(7) amendment, the Employer modified their policy:

Employees Convicted of Criminal Offences

Primary action, an employee to be given notice of termination and followed by an allowable appeal:

“. where the Departmental head or Area Manager is satisfied, having regard to the circumstances of the case in question, that the man is not a less desirable employee of the Company, he may in his discretion and after consultation with the Personnel Manager decide not to terminate, the employee’s services …. “

The Complainant’s argument in that case mirrored the argument in the instant case

1 He had already paid his debt to Society. It was his first offence. (Clarke)

2 He should have been given a second chance .

3 the Company stood in the shoes of the Judiciary by dual sentencing .

4 It was not a substantial ground for dismissal as the conviction arose outside the workplace unless the employee holds a position of trust.

This was countered by the Company by

1 Complainant held a position of trust as a carriage cleaner.

2 Risk of recidivism

The EAT under the then Chair Dermot M Carthy reached for Penology, the study of the punishment of crime and criminal law.

He summarised that the possession of a job may canvas leniency in a first offender court scenario.

“If sent to prison, he would most likely lose his job, and after serving his sentence find it difficult to find a new employer willing to take him on ….

If on the other hand, an employer dismisses such a person immediately after a Court has exercised leniency because of the fact of employment, the intention of the Court might be frustrated “

I did canvas the parties for their views on this premise at hearing

I have no knowledge if this was the complainants first offence or not. I fully accept that neither Party referenced that the Respondent was named in Court. Both Parties accept that the Print Media and Social Media reports changed the trajectory in this case .

I fully accept that the Complainant was not dismissed as a first step, but rather on exhaustion of the Company Disciplinary Policy.

For me, the matter of the criminal conviction with a holding two-year suspension was a gravely serious situation for a high-profile employer.

I accept that the issue occurred in a separate workplace with zero links to the Respondent.

I can accept that they were staggered on sight of the print media reportage some 7-8  weeks after the Complainant disclosed the conviction and had continued at work, albeit with an agreed contingency to vacate his location if controversy arose.

It is agreed that no controversy or inquiry arose from customers or staff during December 2022 to February 2023.

Crowe v And Post [2016] ELR 93 directs me to chase whether there was a sufficient connection between the crime and the employees work? Gregory Crowe, a Postman with A Post in 2011, was convicted under the Misuse of Drugs Acts for sale and supply of drugs which came to the respondent's attention through a newspaper article.

The EAT struggled with the decision on the facts

There is considerable uncertainty as to whether an employee's conviction for a crime committed outside the workplace would entitle the employer to dismiss the employee. In such circumstances the employer would argue that the bond of trust had broken down. The matter is not that straightforward. The basic principle is that usually an employer's jurisdiction over misconduct of the employee ends at the company gate. A dismissal for misconduct outside the workplace can only be justified where there is sufficient connection between the crime committed and the employee's work, in such a way that would render the employee unsuitable or capable of damaging the employer's reputation. The guiding principle in cases involving misconduct outside the workplace is that the employer must be able to show a connection between the misconduct and the company's operational requirements.

As a general rule the employer has no right to institute disciplinary proceedings unless it can be demonstrated that it has some legitimate interest in the conduct of the employee. An interest would normally exist where there is some nexus between the employee's conduct and the employer's business. The employer has to demonstrate that it has a legitimate interest in the crime committed to the extent that the misconduct is disruptive to business, employee relations or affects the reputation of the company. The test is: has the out-of-work conduct of the employee impacted adversely, or is capable of impacting adversely, on the employer's business? If it has then the employer has the right to institute disciplinary proceedings. Whether this gives the employer the right to impose sanctions, up to and including dismissal, will depend on the particular circumstances of each case. No two cases are the same and each case must be decided on its own particular merits. Because of this it is extremely difficult to have consistency of approach.

This is a powerful and challenging analysis by the EAT.

In the instant case, the occurrence of sexual assault occurred in a Fast-Food Restaurant in a separate area. There is no connection between this business and that of the Respondent business outside of the climate of a mixed sex workforce.

This is the very point that challenged the Respondent as they submitted fear of foreseeable negligence if they were found to have continued the complainant’s employment in a largely female dominated workforce, some of whom were in their first job.

This is supported by the Respondent Mission Statement of which they are justifiably proud.

Respondent Mission Statement on Professional Conduct (ex-Rules of Conduct)

“It is imperative that all employees be permitted to work in an environment free from sexual harassment or inappropriate behaviour. We hope that all employees of Aldi will continue to act responsibly and with maturity to maintain our healthy and productive work atmosphere. “

I accept that Ms A carried a concern surrounding recidivism on the complainant’s behalf as a result, but this post-dated the assurances given through the ostensible authority of Ms Z two days after the conviction.

This prompts me to review the procedural framework of the Disciplinary Procedure utilised in this case.

I have difficulty in accepting that the Respondent acted in good faith when they placed the allegation of non-reportage to the line manager as one of two allegations on the confirmation of suspension.

This declaration was known to the Line Manager on the date of suspension, albeit without an apparent record.

The 2019 handbook lists no 19 of rules on conduct as

Examples of types of conduct which could lead to disciplinary action with sanction up to and including dismissal are as follows:

19. conviction of any criminal offence (other than a minor motoring offence) or failing to disclose a conviction to your line manager.

The Policy is distinguished from Clarke.

There is a discretion around the parameters of the Disciplinary procedure.

On 13 February 2023, the Respondent  suspended the complainant and opened an investigation.

On 16 February 2023, the Respondent invited the Complainant to a Disciplinary hearing. the Respondent placed a large burden on the complainant to answer allegations without furnishing him an investigation report. I heard the Respondent confirm that by then the complainant had confirmed that the media report provided was true (not the report in submissions)

Perhaps, it may have been prudent for both parties to have considered the Court report at that juncture.

On 21 February ,2023 the suspension was extended for investigation completion.

23 February ,2023 the Respondent invited the Complainant for Investigation findings on 28 February 2023. On that day, he was provided with Ms Zs minutes confirmation of his declaration of conviction in December 2022.

On March 1, 2023, he was notified of his dismissal for gross misconduct on the reduced allegation and was subsequently unsuccessful on appeal.

I have found that the Respondent did not provide an investigation report to the complainant. I have found that he was disadvantaged by that omission as it may have contained input from a range of contributors in store.

 Scislowski v Limerick Strand Hotel UD16/2016

While it is better practice for an employer to ensure that the disciplinary hearing is conducted by someone other than the person who conducted the investigation the failure to do so does not necessarily render the procedures unfair. The Tribunal is satisfied that the procedures in this case were not unfair. The Tribunal notes that the claimant was afforded a second appeal.

I would have preferred to see an Investigator Distinct from a Disciplinarian but accept that it does not render the dismissal unfair.

If I seek to apply Crowe to the facts of this case, I can readily identify a nexus between the conviction, albeit suspended and the respondents mixed gender workplace, sufficient to warrant an activation of a Disciplinary Inquiry. The Respondent acted in pursuance of their mission statement.

I fully accept that the Complainant pleaded guilty to a sexual assault in a separate workplace “outside of the company gates “ .

However, I have found that the Respondent fell outside the band of reasonableness for a reasonable employer by the piece meal and disjointed  approach adopted to his real time declaration of his conviction in December 2022. It fell far short of best practice for the Respondent to seek to delineate this declaration and not apply any weighting to it.

I learned from Mr H that the Respondent was displeased with Ms Z, but no disciplinary steps were taken.

Taking all, I heard and saw in this case, I have not identified a sufficient connection between the crime committed and the employee's work, in such a way that would render the employee unsuitable or capable of damaging the employer's reputation.

There is no doubt that the Complainant presented a monumental management challenge to the Respondent store by his open declaration of criminal conviction and suspended sentence in late December 2022.

The omission to keep a record of this disclosure was poor by the Respondent.

The Complainant worked on until the circumstances of his paid Suspension on 13 February 2023, a period of almost 8 weeks overtook him. By then, the media reports appear to have ceased and the matter had died down.

The Respondent via a more junior manager re -opened the matter through submission of the newsprint.

No regard was taken to his unblemished record and no regard was taken to the 8 weeks of uneventful service post declaration.

I would go further and say that no regard was passed to the undisputed assurances given to the complainant by Ms Z or the contingency plan agreed in case of customer inquiry.

Instead, I find that the respondent was overwhelmed by the latter-day sighting of a news paper report and just got lost in its anticipation of harm to the business.

By doing this the Respondent failed to see the Employee and consider the impact of dismissal on an already state sanctioned employee. Reilly and Bank of Ireland

In Crowe, Mr Crowe had been convicted of sale and usage of drugs and was found to have lost the trust of his employer. He was also paid for an extended period post his dismissal to March 2014.

I cannot accept that the conviction impacted adversely on the Respondent or indeed that it was capable of impacting adversely the business, the 8 weeks of uneventful continuous service should be considered proof of a storm weathered.

However, the Respondent sought to reconcile their mission statement with the challenge of a publicly reported conviction.

I have found that they did not take steps to reconcile this by moving so swiftly to dismissal on March 2, 2023.

I did not have a statement of zero tolerance in relation to a criminal conviction but rather a discretion.

I have found that that discretion was cautiously exercised at the lowest level to protect the respondent business, however, I accept that this should not be regarded as an absolute  discretion as it airbrushed the complainant as a person and long standing non-controversial employee, when insufficient regard was given to alternatives to dismissal, where protections undisputedly required in the aftermath of a plea of guilty in sexual assault  could have been satisfied by a lesser sanction.

I have found the rush to dismissal was blighted by the  respondent fear of anticipatory harm rather than actual harm caused by the print media, where it seems to me that the respondent was not named.

The Complainant existed in plain sight from December 2022 to February 2023 at the Business complete with name badge and a co existent management team and no queries were raised by staff or customers.

While I conclude this case, still unclear why the complainant did not engage with my request for the Court Report, good, bad or indifferent, I must find that the Respondent cannot rely on the defence in Section 6(4) (b) on conduct.

The facts as I find them are not a conclusive proof of substantial grounds for dismissal and I have found that by omission, the respondent has veered outside the band of reasonableness for a reasonable employer faced with the cumulative facts of what occurred.

 Dismissal was disproportionate .

The Complainant was unfairly dismissed.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

While I have found the dismissal unfair and have analysed the financial loss relied on by the Complainant, I find that he has fallen far short of mitigation expected in accordance with Section 7. He found new work at a reduced rate post dismissal in April 2023.

I have also had regard for his loss of impressive benefits in terms of pension/ death in service.

I have found that the complainant has made a 50% contribution to his demise.

I make an order of compensation of actual and prospective loss at €5,000, the value of two months gross salary in respect of the unfair dismissal.

Claim for Unfair Dismissal, suspended sentence external to the workplace