Complainant

Respondent

Parties

Szymon  Gasiorowski

Super Valu Operating Partners Ireland  t/a Super Valu

Complainant

Respondent

Representatives

James McEvoy, Work Matters Ireland

Niamh Daly IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00059941-001

12/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00059941-002

12/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00059941-003

12/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00059941-004

12/11/2023

The issues in contention concern the alleged Unfair Dismissal of a Sales Assistant by a Supermarket. Additional complaints under the Working Time Act,1997, The Terms and Conditions of Employment Act,1973 and the Payment of Wages Aat,1991 were also lodged.

The employment began on the 1st October 2012 and ended by dismissal on the 27th May 2023.

The rate of pay was €800 Gross for a 40-hour week.

1:1       CA: 00059941-001 – Unfair Dismissal

The Complainant was represented by Mr McEvoy of Work Matters Ireland. The Complainant gave an Oral Testimony. A written submission was also relied upon.  In the internal Respondent Procedures, the Complainant had been represented by a Mandate Trade Union Official, Mr K Reilly.

Mr McEvoy relied heavily on SI 146 of 2000, Statutory Code of Practice on Grievance and DisciplinaryProcedures and the superior Court case of Frizelle v New Ross Credit Union [1997] IEHC 37. He sought by extensive cross examination of the Respondent witnesses to establish that Natural Justice and Fair Procedures had not been followed in the internal procedures of the Respondent.

In particular he queried the use of CCTV by the Respondents – describing it as a “Trawling Exercise” to build evidence rather than to establish the veracity of facts already stated. The initial Investigation invitation by the Store Manager, Mr W, was very non-specific as regards what was to be investigated. It appeared that the initial locus of the Respondent complaints came from a fairly standard review of Cockings by, relatively junior Manager, Ms MCG. CCTV was then used to “trawl” for evidence.

The Disciplinary Hearing by Ms MCM, Regional Manager, was based very closely on the investigation Report from Manager Mr W. There was no apparent evidence of Impartiality on Ms MCM’s part.

Likewise, the Appeal Hearing by Ms DL, HR Director, was again a basic, almost copy, endorsement of the previous Investigation and Disciplinary Outcomes.

In his final summary Mr McEvoy characterised the Internal Processes as a “Witch Hunt” from the start. The CCTV issue was a breach of general Data Protection rules, the Internal Staff Procedures were unclear or non-existent – the “Take a Penny/leave a Penny” policy was non-existent and the rules over waste bread were completely ambiguous. It was a common, day to day, staff practice to use clearly waste bread for their own snacks.

Furthermore, it had never been established as a matter of “incontrovertible” fact that the Complainant had been asleep in the Canteen. He had maintained that he was unwell and resting. The issue of the taking of breaks at the start of a shift (as practiced by the Complainant) as opposed to during or mid-way through was also unclear.

Mr McEvoy also stated that the Dismissal, or ultimate Sanction, was a completely disproportionate sanction for what were, even if proven, minor offences. The Complainant had over 12 years unblemished service. Many less severe sanctions could have been considered.

1:2         CA - CA: 00059941-001 Minimum Notice & Terms of Employment Act, 1973

The Complainant, based on a purported favourable Unfair Dismissal outcome, made a claim for 6 weeks Statutory Minimum notice.

2:1       CA: 00059941-001 – Unfair Dismissal

The Respondent was represented by Ms Daly of IBEC and presented four witnesses, Mr W- Store Manager, Ms DL- Group HR Partner, Ms MCM, Regional Manager and Ms MCG, HR Department. A written Submission with numerous appendices was also relied upon.

In essence, Ms Daly presented the Respondent case as one where full and proper procedures were followed at all times. The Respondent is a major employer in the State and has extensive written Operating and HR procedures. These were followed to the letter.

It was important to note that a very experienced Trade Union Official, Mr K Reilly of Mandate had been involved at all stages including the Appeal. All evidence had been exchanged and Mr Reilly had never raised any serious procedural points.

The Respondent submitted in written evidence copies of Operating procedure regarding Clocking and Staff Purchases and pointed to where the Complainant had clearly breached these. The issue of impartiality among and between Managers was addressed. The Regional Manager and the Group HR Director were not involved in any direct way with the individual Store Operation or with Manager, Mr W.

The final Appeal outcome from Ms DL, HR Director, was comprehensive and had set out in detail the Respondent responses to the Complainant’s Appeal.

Mr McEvoy rigorously cross examined the Respondent witnesses and in particular Ms MCG who had initiated the process with her clocking reviews. Ms MCG was confident in her replies that she had only carried out a normal Managerial exercise and the use of CCTV to verify was perfectly acceptable. There was no negative Agenda “Witch Hunt” in Mr McEvoy’s terms, at play as regards the Complainant.

The Adjudication view is that, by an accumulation of issues, the case for Gross Misconduct was established to a sufficient degree. The Breach of Trust was manifest, and Dismissal was the only option that an employer in their Retail Sector could impose.

2:2         CA - CA: 00059941-001 Minimum Notice & Terms of Employment Act, 1973

The Complainant, based on a purported favourable Unfair Dismissal outcome made a claim for 6 weeks Statutory Minimum notice. This was rejected by the Respondent as Minimum Notice is not required in cases of Gross Misconduct dismissals such as was the case here.

3:1       CA: -00059941-001 Unfair Dismissal

3:1:1    The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

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

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines.

3:1:2 The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for Employer and effectively engage in a de facto re-running of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

Accordingly in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “Band of Reasonableness”.

3:1:3     Review of the Evidence both written and Oral.

Extensive written evidence was presented by the Parties and supported by considerable witness evidence at the Oral hearing. Full and detailed cross examination of the evidence and witnesses took place by the respective legal representatives.

Having listen to all the oral evidence and carefully read all the documentation and extensive employment procedures I came to the view that a full and fair process had been followed up to and including the final Appeals stage. I could find no glaring faults under the Natural Justice or SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures headings.

Mr McEvoy, for the Complainant argued strongly that Natural Justice, in a most detailed forensic examination, had not been properly observed. He supported his case with vigorous cross examination of all the Respondent witnesses and careful reading of all documents submitted.

Legal precedent, in Employment Law cases, has always tended to the view that the balance of proof has to be the Civil Law “balance of probability” as opposed to Criminal Law proceedings.

The documentation, minutes of meetings, was proper and followed published procedures. The Respondent representatives were experienced and familiar to these types of cases. The Complainant was represented, in the Respondent Internal proceedings, by a very experienced Trade Union Official.

The Complainant had chosen later to engage Mr. McEvoy of Work Matters Ireland.

The suggestion by Mr McEvoy of an almost malign “witch hunt” against the Complainant was not supported by strong evidence particularly in the Oral Witness Testimonies.

The Appeal hearing by Ms DL was comprehensive and from the Minutes, the Outcome Letter and the Oral Testimony, under close cross examination by Mr McEvoy, appeared to have been professional and competent.

In deference to Mr McEvoy, it is worth noting that Mr D Ryan writing in Redmond on Dismissal Law, 3rd Ed, Bloomsbury at Section 13.20, P 281 discusses this area in detail.

“Procedural defects will not make a dismissal automatically unfair. (ref to Byrne v Allied Transport Ltd UD 11/1979). The legitimacy of the processes adopted by an employer may be subordinated to the particular merits of a particular case. An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omissions, it acted reasonably in the circumstances in deciding to dismiss an employee”.

The Adjudication view, following careful review, is that the required “reasonable” standards in Employment Law were achieved.

3:1:4     The Dismissal Decision and the “Band of Reasonableness”.

In considering the Band of Reasonableness question regarding a dismissal decision, legal precedent, has a vital first consideration, the basic requirement that it is well established, that there were no major procedural flaws, Natural Justice short comings etc prior to making of this decision.  Hennessy v Read & Write Shop Ltd UD 192/1978 would be the headline case here.

From the discussion above at Para 3:1:3 the Adjudication view was that there were, taking SI 146 Code of Practice on Grievance and Disciplinary Procedures, as a guide, no major Procedural shortcomings such as to invalidate the decision.

Regarding the decision to dismiss as opposed to a range of alternative lesser penalties The Adjudicator listened to the arguments, in response to questions and cross examination, of the Respondents.  The issues of contention regarding the use of the Coin Jar & the alleged misuse of allegedly Waste Bread Rolls might appear to an outside observer to be relatively minor offences taken singly.

The issue of clocking/not clocking for breaks, Clocking practices, Times of Breaks, Allegedly Falling Asleep on a break were much more serious matters. The Complainant practice of taking his breaks before actually starting the physical work of the shift was, to an outside observer, not a normal practice. The Disciplinary Hearing Officer, Ms. McM, on the “balance of probability” was satisfied that the Complainant had been asleep in the Canteen while clocked In.

However, and in Adjudication summary, when all issues were considered collectively, the Gross Misconduct outcome might not be seen as completely unwarranted.

It was interesting to note that Mr Reilly of Mandate, (although not present at the Hearing, not having been called by either side,) gave in his Written Submission to the Appeal (Letter of the 25th May 2023) Hearing a strong suggestion that while penalties might be considered the ultimate Dismissal would be Disproportionate.

“there is a suite of alternative sanctions available to the Company, below the sanction imposed on Mr Gasiorowski, and given his full clean record up to the incident included in this investigation, it is my belief that the Company have not given due consideration to those options”

Ms DL, the Final Appeals Manager, in her Oral testimony, gave evidence that she had carefully considered the entire question. On questioning from the Adjudication Officer as to why for example a transfer to another Branch of the Chain coupled with a sharp penalty might have sufficed, she as of the strong view, in reply, that transferring a difficult issue/employee from one Branch to another was not a good long term Management approach.

Bearing in mind the oft repeated cautions that Adjudicators do not substitute themselves for Managerial decision makers the view has to be that the Senior Managers, especially Ms DL, would be au fait with current Retail Industry standards. Previous WRC cases in this sector are instructive of the Retail /Supermarket Industry and the emphasis Respondents place on “Trust”.

In summary therefore, Dismissal was “Within the Band of Reasonableness” for the Retail Supermarket sector.

3:1:5         Summary Conclusions.

The dismissal may well have been, understandably, most upsetting to the Complainant but the Adjudication view had to be that it fell in the “Band of Reasonableness” for an employer in a similar situation or industry.

Accordingly, I did not find the Dismissal unfair and the claim falls.

3:2       CA - CA: 00059941-001 Minimum Notice & Terms of Employment Act, 1973

As the Dismissal has not been found Unfair this claim has to fail.

Unfair Dismissal, Proportionality, Band of Reasonableness.