SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
TESCO IRELAND LTD
(REPRESENTED BY IBEC)
- AND -
(REPRESENTED BY MANDATE TRADE UNION)
Chairman: Ms O'Donnell
Employer Member: Mr Marie
Worker Member: Mr Hall
1. Appeal Of Adjudication Officer Decision No. ADJ-00012348.
2. The Complainant appealed the Adjudication Officer's Decision ADJ-00012348 to the Labour Court in accordance with Section 8A of the Unfair Dismissals Acts 1977 to 2015. A Labour Court hearing took place on the 18th of April 2019. The following is the Determination of the Court:
This is an appeal by Rose Kinsella (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00012348 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that she was unfairly dismissed by her former employer Tesco Ireland Limited (hereafter the Respondent). The Adjudication Officer held that the decision to dismiss the Complainant was fair.
The Complainant commenced employment with the Respondent in 2004 as a Customer Assistant. At the time of dismissal, she was working on the Customer Service Desk and also had a role in taking cash to and from various tills in the store. On three occasions during the months of June and July 2017 a transactional discrepancy arose. The Respondent instigated an investigation which then moved into the disciplinary process culminating in the Complainant being dismissed. The fact of dismissal is not in dispute.
It is the Complainant’s case that she had an exemplary record with the Respondent prior to these three incidents. The Complainant confirmed to the Court that she was aware that the Respondent had CCTV cameras around the store and that they regularly carried out stock checks. The Complainant could offer no reason as to why the transactional discrepancies occurred on the dates in question. The discrepancies were brought to her attention on the 7thJuly 2017 and she was placed on suspension. Following discussion with her Union representative the Complainant made an appointment with her GP which she attended the following Monday. Her Doctor diagnosed here with depression and prescribed medication for her. It was her Doctor’s opinion that she had in fact being depressed for some time.
The Complainant was invited to attend an investigatory meeting on the 14thJuly 2017. At the meeting the allegations were put to the Complainant and she was shown the relevant CCTV footage and till receipts. In the course of the meeting, the Complainant informed Mr Pat Halpin the investigator of the fact that her Doctor had just days earlier diagnosed her as suffering from depression and that she was due to attend counselling the following week. The Complainant also informed Mr Halpin of some issues she had been dealing with at home. Following a short break, the meeting continued with Mr Halpin informing the Complainant he was keen to “keep in process and conclude the meeting”. Mr Halpin went on to say that the Complainant had never previously looked for assistance in relation to suffering from depression but that he noted what she was saying in relation to same. The Complainant was then invited to an investigation outcomes meeting where she was advised of the outcome of the investigation and that a decision had been made to move the issue into the disciplinary process.
The Complainant was then invited to a disciplinary hearing where her representative again brought to the attention of decision maker Mr McMahon the fact that the Complainant had recently been diagnosed as suffering from depression and that as the issues under consideration where completely out of character this should be taken into consideration. By letter of 15thSeptember 2017 the Complainant was informed that the decision had been taken to dismiss her and of her right to appeal. The Complainant lodged an appeal which was heard by Mr Leonard who upheld the decision to dismiss. It is the Complainant’s case that she was a long-standing employee with an unblemished record and that the incidents at issue were completely out of character for her. On that basis the Respondent should have had regard to her Doctor’s diagnosis and that while she was not disputing that the incidents occurred dismissal was a disproportionate response.
It is the Respondent’s case that the Complainants employment was terminated on the grounds of serious misconduct following a fair and impartial investigatory, disciplinary and appeals process. Mr Halpin, Mr McMahon and Mr Leonard gave evidence on behalf of the Respondent.
Mr Halpin was the investigation Officer it was his evidence to the Court that by letter of the 10thJuly he invited the Complainant to attend an investigatory meeting and attached to that letter were the Respondent’s relevant policies. At the investigation meeting Mr Halpin submitted that he went through the allegations with the Complainant and showed her the relevant CCTV footage and till receipts. Mr Halpin sought an explanation from the Complainant in relation to the transactional discrepancies, but she was unable to provide one. The Complainant’s representative then raised the fact that the Complainant following her suspension had attended her Doctor and that her Doctor had diagnosed her with Depression. It was Mr Halpin’s evidence that this was the first time he became aware that the Complainant suffered from depression. In response to questioning during cross examinations Mr Halpin confirmed that he was not aware of any other issues arising in relation to the Complainant during her employment. It was his evidence that the Complainant had accepted that she had carried out the transactions and on that basis in his view it warranted moving the issues into the disciplinary process.
Mr Mc Mahon carried out the disciplinary hearing and was the decision maker. It was his evidence to the Court that he took the Complainant through the issues and asked if she could offer any explanation for same. Mr Mc Mahon submitted that he took the Complainant through the CCTV footage and the receipt tills but that the Complainant could not offer an explanation for what had occurred. Mr McMahon submitted to the Court that it was his decision and his decision alone to dismiss. It was his evidence to the Court that he did not consider any alternative to dismissal as in his eyes the bond of trust had been broken. He confirmed that the Complainant’s representative did raise the issue of the Complainant’s recent diagnose but he did not consider it relevant. In the course of cross examination, he confirmed that he did not consider sending the Complainant for a medical with the Respondent’s doctor as she was on suspension and not out sick. In response to a question from the Court as to how he had come to the conclusion to dismiss and when he had made that decision. It was Mr Mc Mahon’s evidence that he could not remember when in the intervening month he had made the decision but possibly it was when he returned from two weeks annual leave. In relation to how he had come to the decision it was his evidence that he was of the view “if it was my store I would not have her back”he therefore felt that dismissal was the only option.
Mr Leonard was the appeal officer. Mr Leonard confirmed to the Court that he received an appeal of the decision to dismiss by letter dated 19thSeptember 2017 and that there were a number of grounds for the appeal set out in that letter. An appeal hearing was held on Friday 6thOctober 2017 it was Mr Leonard’s evidence that he decided to uphold the decision to dismiss on the grounds of the consistency of the transactions and his belief that the bond of trust was broken. While he stated that he did consider all the different grounds of appeal lodged including the issues in relation to the Complainant’s health he could not explain why his considerations in relation to each of the issues were not set out in the letter advising the Complainant that her appeal had failed.
In conclusion it is the Respondent’s case that it is not disputed that the incidents occurred, the Respondent adhered to their own policies and the principles of natural justice and fair procedure at all times.
Section 1 of the Act defines dismissal in the following manner
“dismissal”, in relation to an employee, means –
- (a)The termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,
“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.”
Issue for the Court
Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.
It is not in dispute between the parties that on three occasions over a six- week period transactional discrepancies occurred. The Respondent accepts that there did not appear to be any benefit to the Complainant and that there was no collusion with the customers. While the Complainant’s representative did raise some issues in relation to the Respondent’s procedures the Court is not satisfied that in and of themselves these were fatal to the process. However, the Court notes that it is not disputed that the Complainant had a long and unblemished career with the Respondent until these issues occurred. In those circumstances the Court is of the view that the medical issues raised by the Respondent at all stages of the process should have been investigated. The Court notes the evidence of each of the Respondent’s witnesses that they accepted at face value what the Complainant’s Doctor had said but did not consider it relevant to the process or worthy of following up.
InJames Mc Evoy v Avery Dennison Ltd E.L.R.the then E.A.T. held that “the Respondent should have taken into consideration the fact that there was mitigating circumstances for his behaviour because of the nature of his health problem and that this should have been taken into account by the respondent while investigating the incident.”
In this case it was acknowledged that the behaviour complained of was out of character for the Complainant, in those circumstances it is the view of the Court that the medical issues raised should have been investigated by the Respondent to establish whether or not they were a likely factor in the occurrence of the incidents. The medical issues should also have been considered by the decision maker and the person hearing the appeal when considering whether or not dismissal was an appropriate sanction. In failing to do so the Court cannot see how this dismissal could be deemed to be fair.
Section 7 of the Act states
- 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or
(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.
The Court having considered the remedies available has decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate redress in this case.
Having assessed all the information before it the Court considers that the Complainant has suffered financial loss as a result of the wrong she has suffered. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €15,000. The Court so determines.
The Court determines that the Complaint is well founded. The Court orders the Respondent to pay the Complainant compensation in the sum of €15,000. The decision of the Adjudication Officer is set aside. The Court so determines.
Signed on behalf of the Labour Court
14 May 2019Deputy Chairman
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.