Complainant

Respondent

Parties

Katazyna  Wadlewska

Lidl Ireland Gmbh  

Representatives

Ed Shannan BL instructed by Green and Associates

Employee Relations Manager

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-00059876

08/11/2023

The Complainant was a Deputy Store Manager, earning an annual salary of €50,000, working 39 hours per week with the Respondent from 23 November 2007 until her date of dismissal on 20 October 2023. She gave her evidence on affirmation. The Complainant was given an opportunity to review the Respondent’s submission which had been sent by the Respondent to all parties on 14 November 2024. Upon return to the hearing, she stated she was happy to proceed with the hearing.

The Respondent presented two witnesses, Mr. Stephen Morrissey and Mr. Stephen Hegarty who both gave evidence on affirmation.

Legal submissions were received and relied upon by the parties.

It was the Complainant’s evidence that she enjoyed her work until August 2023, when a new Store Manager, Mr Steven Morrissey, was appointed. It was the Complainant’s evidence that her managerial duties were significantly reduced, she was reassigned to cashier duties, had her fob removed and access to the office was restricted.

In August 2023, theComplainant faced a disciplinary investigation into an allegation that she removed a six-pack of Kong Light from the store on 14 and 20 August 2023 without payment or authorisation, and to have consumed the drinks in the warehouse area. It was her submission throughout the investigation that she accepted she took the drinks from the shelf, drank one and left them in the warehouse.  She referred to this as a common practice where the drinks would be taken during the break time and pay for the product afterwards.

The matter was investigated by Mr Morrissey which she felt was bias due to a conflict of interest where his wife worked with and reported to the Complainant. She further submitted that she previously had a confrontation with Mr Morrissey about the preferential treatment Mrs Morrissey’s received in store. It was her evidence that Mr Morrissey reacted angerly.

Despite the Complainant’s objections, the allegation proceeded to a disciplinary hearing before Mr Steven Hegarty.

At both stages, the Complainant accepted that she had not followed the staff purchase procedure but denied any intent to steal. It was her evidence that the drinks were her own, purchased either later the same day or on a subsequent day, and that they were openly stored in the warehouse. She indicated that she could not provide receipts due to the passage of time but maintained that she had paid for the items in full.

Regardless of her honesty and submission that this was a regular practice in the store, she was dismissed from her employment for gross misconduct on 20 October 2023.

She accepted in cross examination that she was did not raise any grievance against Mr Morrissey.  The Complainant was asked when she paid for the goods, she replied “the next day or 2 days after”. It was put to her that she said she didn’t pay during the investigation meeting, to which she stated she said she didn’t pay for the drink “on the day”. She also accepted that she did not appeal the decision to dismiss stating that, “I had my new job. I just wanted to move on”, later adding that Mr Hegarty advised her not to appeal as it would not make “any difference”.

Financial Loss

It was the Complainant’s evidence that she is at a loss of €13,000 per annum in her current employment. She commenced her new employment on 3 November 2023.

Mr. Steven Morrissey

Mr. Morrissey, Store Manager, gave evidence that following an internal inventory audit, it was identified that product was being removed from the shelf and not paid for. This was supported by CCTV footage.

He outlined the steps taken in the investigation, beginning with the invitation issued on 22 September 2023, followed by the disciplinary meeting held on 26 September 2023. On 28 September 2023, the Complainant resigned from her position but was asked to reconsider, which she did. On the same date, he interviewed a former Store Manager regarding the practice of taking product, and the allegation was denied. On 5 October 2023, he issued his investigation report, which concluded that the matter should be referred to a formal disciplinary hearing.

In cross-examination, Mr. Morrissey denied that there was any informal arrangement in place regarding taking drinks. He also denied that the Complainant’s duties were reduced, stating that her evidence was “out of context.” He explained that IT issues in February 2023 had impacted everyone’s fob access; that the names on lockers were removed to allow for the installation of new lockers; and those duties varied on a quarterly rotation so that all staff gained experience. The witness further denied that there was any conflict of interest arising from his wife’s employment and the Complainant.

He also denied accusing the Complainant in the office of taking the product. His evidence was that he merely asked her for proof of purchase.

Mr. Steven Hegarty

Mr. Hegarty gave evidence that he met with the Complainant on 16 October 2023 as part of the disciplinary process, at which point she admitted her actions. He outlined the steps he took: reviewing the CCTV footage, meeting with the Complainant, offering her the right to be accompanied, and putting a number of questions to her. He stated that the Complainant expressed remorse for her actions.

On 20 October 2023, Mr. Hegarty made the decision to dismiss the Complainant and met with her to communicate this outcome. His evidence was that the dismissal was based on a “fundamental breakdown of trust” in respect of an employee holding a senior position in the store. He described the matter as a “black and white decision,” although he accepted that he would always consider alternatives.

When asked whether he had carried out an independent investigation into the alleged informal policy, he stated that the investigation report contained a statement from the former Store Manager.

Financial Loss

It was submitted that the Respondent wrote to the Complainant on 24 April 2024 and 13 August 2024 seeking documentation on her financial loss. No response was received to either letter.

Dismissal was not at issue between the parties. Therefore, the focus in on whether the dismissal was justified and fair.  The Unfair Dismissal Act 1977 places a clear burden of proof on the employer to establish that the dismissal of an employee from their employment must be justified.

“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.”

Section 6 (4) provides: -

(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,”

Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides, inter alia, that:

“… in determining if a dismissal is an unfair dismissal, regard may be had … to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

McMahon J. in Khan v Health Service Executive 2009 E.L.R. 178, summarised the meaning and value of fair procedures as being:

“… at the very foundation of all legal systems and all decision makers must observe them whether we like it or not. Fair procedures are necessary for the common good … What does [sic] fair procedures mean? At the very minimum it means that the person at whom a charge is levelled has proper notice of the charge; that he has proper opportunity to take legal advice and to prepare for hearing; that no one is to be a judge in their own cause; (nemo judex in causa sua) that both parties are given a full opportunity to be heard (audi alteram partem) and that the judge is free from bias. Moreover, it is clichéd law that not only must these principles be adhered to, but they must be seen to be adhered to. Justice must be seen to be done. Perception is significant.”

An employee has the right to a fair and impartial determination of the issues under investigation, as provided for in S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (“Code of Practice”), the Respondent’s own procedures, and relevant case law.

In this case, the fact of dismissal was not in dispute; the Respondent maintained that the dismissal was fair.

It was noted that the Respondent’s own Disciplinary Procedures were not produced by either party, despite being requested of the Respondent. Consequently, I am limited to relying on the Code of Practice in considering the question of fairness. It was further noted that the procedure followed by the Respondent was not challenged in respect of the informal purchase policy or the allegation of pre-existing issues between Mr. Morrissey and the Complainant prior to the investigation. It is also noted that the Complainant did not raise a grievance against Mr. Morrissey either before or during the investigation process. I do not accept that she had no means to raise such a complaint, particularly where the Respondent is a large organisation with HR resources and a significant managerial structure, including regional managers, to whom such issues could have been escalated.

Having regard to the Respondent’s evidence, I find that the investigation was conducted in accordance with the Code of Practice and that the Complainant was afforded fair procedures throughout. On two occasions the Complainant was afforded the opportunity to have a representative present, respond to the allegation to which she was provided evidence in advance of the hearing. She never raised the issue of bias even to a Mr Hegarty. There is no evidence or challenge that the procedure followed by the Respondent was procedurally flawed.

In relation to the sanction, it is significant that the Complainant chose not to appeal the dismissal. The sanction was not challenged by the Complainant in cross-examination. Instead, she stated that she did not appeal because she had already secured a new job. While an employee’s decision not to appeal does not render a decision fair of itself. If there was an issue that the appeal was a mere rubber-stamping exercise, as the Complainant suggested, she did not give the Respondent a fair opportunity to respond by actively deciding not to engage in the process. Instead, she chose to refer her complaint to the Workplace Relations Commission. The Complainant had the benefit of legal advice at the time, which is a significant factor.

For these reasons, I find that the Complainant was not unfairly dismissed.

I find the Complainant was not unfairly dismissed by the Respondent.

Unfair Dismissal