Complainant

Respondent

Parties

Gary  Hogan

Tesco Ireland Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Ken Reilly, Mandate Trade Union

Dajana Sinik , 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-00059509-001

20/10/2023

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

CA-00059509-002

20/10/2023

The hearing was attended by Gary Hogan, the Complainant, who did not go into evidence, and accompanied by his Representative Mandate.

The Respondent was represented by IBEC and Tesco Management, Deborah Barry, Geraldine Keenan, Brendan Boyle, Joe Thompson and Markus Fourie attended.

All witnesses made an affirmation.

The complainant was employed as a Driver from February 2015 to dismissal in July 2023 and alleges an unfair dismissal following a paid suspension on the 26th of April 2023. He appealed this decision internally, in August 2023 and this was rejected by the Respondent

It is the Complainant’s case that he had been denied fair procedures and natural justice leading to his dismissal for which he has referred the within complaints under the Unfair Dismissals Act, 1977 and under the Payment of Wages Act, 1991.

The Complainant was employed as a driver with the Respondent since February 2015. In April 2023 he was invited to preliminary investigation meetings where he was informed a witness had made a statement against him. It subsequently emerged that this unknown witness had withdrawn their statement.

The Respondent continued their investigations of the Complainant, and he was suspended on the 26th of April 2023. The Complainant was told that he would receive notice of this in writing and this was part of the meeting minutes of the preliminary investigation. It is the Complainants case that he never received such notice.

On May 22nd, 24th and 27th witnesses were interviewed by the Respondent.

At the meeting on the 22nd the Complainant raised the issue of the unknown person and that they had a right to know who it was. They were informed that this witness statement would not be considered in the investigation, nor the decisions arising. Mandate requested the suspension be lifted on the basis that the witness originating the issue was not known to them, nor available to be challenged on their statement. It was the Respondent position that this “was not company policy”.

Mandate wrote to the Respondent on 29th May 2023, citing S.I. No. 146/2000:

 “These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses”.

On May 30th, 2023, witness statements were provided to the Complainant for his response, and it is his case that he was not allowed to properly respond to these. The outcome of the investigation was issued to the Complainant on the 15th of June 2023 to the effect that matter progress to the Respondent’s disciplinary stage.

On the 29th of June and 7th of July 2023, the disciplinary meeting was held. The Complainant again asserts, despite requests, that the manager appointed to hear the matter did not allow him to cross examine witnesses.

On July 25th the Complainant was summarily dismissed for gross misconduct without payment for his notice period. This was subsequently appealed. On the 17th of August the appeal heard and was unsuccessful, being notified to the Complainant on the 28th of September 2023.

in summary, the Complainant case is:

·       That the investigation stemmed from an anonymous source and being unable to question this person made the following investigation unfair.

·       He did not receive a suspension letter setting out the reasons for the same.

·       The Respondent nullified the Complainants ability to be properly defended

·       The Respondent did not consider other appropriate sanctions

·       The Respondent did not allow for the Complainant to cross examine witnesses

·       He has suffered financially and socially and earned €564.20 per week and his claim is he at a loss for 33 weeks to where he secured alternative employment.

·       This figure is placed at €18618.60 with a further amount of €2256.80 totalling €20875.40. In addition to this claim the Complainant asked to be reinstated.

The Complainant cited the following cases:

·       O’Leary v An Post [2016] IEHC 237Gearon v Dunnes Stores Limited UD 367[1998]

·       Gallagher v Revenue Commissioners [1991] 1 I.R.  30

·       EE v Child and Family Agency [2016] IEHC 777

·       Dolores Malone v Galway Clinic UK1486/2014

·       Frizelle v. New Ross Credit Union Ltd. | [1997] IEHC 137

·       DHL Express (Ireland) Ltd v Michael Coughlan UDD 1738 [2017] 28 E.L.R. 309

The respondent’s position is that the complainant was dismissed for gross misconduct, and they are fully compliant with the Code of Practice.

It is the respondent case the Complainant began employment on the 19th of February 2015 as a driver and was dismissed by reason of gross misconduct on 20th September 2023.

On the 3rd of March 2023 it was discovered he had left the premises with his van unloaded having failed to complete the requisite checks. This led to an investigation and several such breaches were discovered, in terms of unauthorised use of the company vehicle, unauthorised stops at his home address, late return from breaks, incorrect completion of safe and legal logbook checks.

On the 4th of April a preliminary investigation meeting was held with management with the Complainant and AMcD (shop steward) as support person. The following was discussed:

·       Policy breaches

·       Time and record discrepancies

·       Pattern of conduct

The Complainant was presented with details of these infringement covering the period from 20th, of February to 25th February.

On the 6th of April an investigation took place with management, and it was confirmed contrary to the assertion of the Complainant on the 4th of April that no permission was given to take the van home. The Complainant wished to challenge this witness and was not allowed do so.

On the 20th of April, the meeting was reconvened with the same parties where the Complainant was notified of allegations of serious and gross misconduct that could result in a disciplinary hearing and a sanction up to and including dismissal. Discussed at the meeting were misuse of a vehicle and discrepancies in schedules and work times.

On the 26th of April MD investigated meeting on the Complainant breaching the company procedures again on the 25th of April; despite being under investigation.

On the 11th of May a formal investigation was conducted to look at the following

·       Failure to comply with the Safety and Health and Welfare at Work Act 2005.

·       Failing to complete required documentation and/or falsification of documents

·       Misuse of clocking system

·       Unauthorized use of company property

·       Breach of bond of trust

·       Brach of honesty policy

This led to an investigation meeting where the Complainant was represented by his trade union. At this meeting, the Respondent addressed the loss of 280 minutes of company time (€375.28) in the short period looked at; and that the defence of lack of sanitary facilities was not raised with the Respondent and their own audit raised no issues of concern. The anonymous witness was raised and confirmed as disregarded by the investigator. The union challenged the suspension calling for reinstatement and the Complainant disputed minutes from previous meetings that he “held his hands up” on failing to complete required checks.

On the 23rd of May an investigation meeting was held with MD and Ms C. On the same day two separate investigation took place with LK and RD.

On the 29th of May DC attended a further investigation meeting to discuss the preliminary meeting of the 26th of April.

On the 30th May a further investigation was held with Ms C.

·       The Complainant confirmed receipt of the suspension letter via registered post.

·       The Complainant Representative requested an opportunity to “confront” and cross examine witnesses and was told that whilst not possible there would be an opportunity to respond to all evidence.

The Complainant asserted that the anonymous witness influenced his suspension, and this was denied by the Respondent. The Respondent set out that the suspension was on foot of subsequent failings of the Complainant.

The response from the Complainant to the evidence was:

·       That the manager had no experience of the driver role

·       That he disputed the minutes of the previous meeting

·       D would not confirm that he was allowed to take the van home as it put D at risk            

·       That he had not been trained on the use of handheld devices

·       That DC had no knowledge of events nor understanding of the case

On the 12th of June a further (3rd) Investigation meeting took place to discuss:

·       Complainant dispute of the minutes from the suspension meeting

·       Complaint acknowledged SG attempted to train him

·       Respondent noted a discrepancy in earlier evidence that the complainant claimed to have deliberately untrained, and it was now technical reasons.

·       Investigator confirmed that MF, LK, RD, SG and DC were all without recollection of the anonymous statement.

·       Complainant admitted to having failed to complete checks previously

On the 15th of June the outcome of the investigation meeting was attended by Ms C. KR (Mandate) and Complainant

Disciplinary Hearings

On the 29th of June a disciplinary hearing was chaired by BB, attended by RG, GC (MANDATE). The matters concerned were allegations in terms of unauthorised stops, mainly at Complainant home address and incompletion of logbook checks. On the 7th of July a further hearing took place. On 25th of July a meeting was convened, and the Complainant was dismissed for gross misconduct.

Appeal

On the 3rd of August an appeal was filed on the basis that the Complainant was incorrectly suspended, minutes of meetings being incorrect, face to face meetings declined, an anonymous witness was part of the process, requests for cross examination were denied and other forms of dismissal were not considered. On 17th of August a hearing was convene on the issues considered and appeal denied notifying the complainant on the 28th of August 2023.

Respondent Position

The Respondent sets out that the Complainant did receive the suspension letter and acknowledges the request from the Complainant for cross examination of witness. The Respondent case is that it was not possible to do so, but that a response would be afforded.

The Respondent set out its position that the anonymous statement was not a factor in the meeting preceding the suspension and set out that this statement was excluded from all decision making.

It is outlined by the Respondent in answer to the Complainant being unable to confront witnesses, that he was given the opportunity to respond to witness statements at the 2nd and 3rd investigation meeting. It is the case of the Respondent that the Company policy does not permit the opportunity to confront and cross examine witnesses as it may be intimidating and cites O’Leary v An Post [2016] IEHC 237 in support of that view and that it has a duty to balance the rights of the complainant with the rights of a witness.

The Respondent points to the fact that the Complaint in their right of reply did not address the substance of the allegations and if they had afforded cross examination at the disciplinary stage, it would not have altered the facts of the case or its ultimate outcome.

The matter of loss of trust is addressed by the Respondent and that breach was so severe that it had no alternative recourse and in affording the chance to respond to the witness evidence it is compliant with the Code of Practice, and it was a fair process.

The Respondent points to admissions on the part of the Complainant in the investigation meetings and directly addressed an issue of the complainant regarding training; that the Complainant was still expected to comply with policy and procedure.

 Of particular concern is putting customer signatures on the record, coupled with the falsifying of logbook entries, further undermines trust in the Complainant.

The Respondent also wished to address the loss of 280 minutes of company time (€375.28) in the short period reviewed and the lack of sanitary facilities was never raised with the Respondent and their own audit raised no issues of concern.

 In addressing the suspension with pay issue the Respondent relies upon Bank of Ireland v Reilly [2015] IEHC 241 as a precedent for justification.

In addressing the matter of dismissal for behaviour, the Respondent cites Looney & Co Ltd v Looney UD843/1984 as authority for actions of a “reasonable” employer in that a reasonable employer would have come to the same conclusion. Further to this they highlighted the destruction of the Respondent’s trust and confidence in the Complainant, citing Knox Hotel and Resort Ltd UD 27/2004.

It is the Respondent’s assertion that it has followed the WRC Code of Practice on Grievance and Disciplinary Procedures. The Respondent is of the view that the Complainant contributed wholly to their own dismissal and cites Murray v Meath County Council UD 43/1978 that no redress is due to the Complainant considering their own actions

Mitigation of Loss

Without prejudice to its position that the dismissal was fair the respondent cites Murray ibid, UDD 1974, Philip Smyth v Mark Leddy, Revenue Commissioners and Colm Keane UDD 2125 that the Complainant must mitigate his loss. It is the Respondent assertion that the Complainant has not demonstrated attempts at mitigation and rejects the claim under the Payment of Wages Act for pay for notice.

In concluding on these complaints, it should be borne in mind that under s6 of the Unfair Dismissals Act 1977, a dismissal is presumed to be unfair, and it is the Respondent that bears the burden of proof in substantiating that the dismissal was fair on the balance of probabilities.

Anonymous Complaint

A key matter to be dealt with is the unknown witness. It is the contention of the Respondent that this is not an issue as it did not form part of their decision making. The Complainant contends that the whole matter of their dismissal should be set aside on this basis and for other reasons to be dealt with below. I am mindful of the Clarke J, decision in Rowland v An Post [2017] IESC 20,

 “errors of procedure can be corrected by appropriate measures being taken before the process comes to an end.”

It is the respondents’ position that they have excluded the matter of the anonymous complaint, and it is reasonable to take that view following Boyle v An Post [2015] IEHC 58 that the process requires fair procedures, not perfect procedures and that the law does not demand the impossible. I am satisfied that the anonymous statement had no bearing on the decision to dismiss.

As to eliminating other matters that came to light, I do not find this a credible argument. The Respondent on discovering other matters had a duty to investigate these where they concerned matters around legal and safety checks and were not able to close their eyes to the facts that emerged. Witnesses become unavailable for many reasons, and it is not appropriate to assert that this closes of all avenues of investigation where a Respondent is on notice of activities contrary to policy and procedure.

Suspension

I am prepared to accept the evidence under affirmation that the Respondent issued the Complainant with the suspension letter, which is recorded in the meeting minutes, though later disputed.

As to the need for suspension, there is good case law on the use of suspension, with and without pay, for cases of allegations of Gross Misconduct. The Complainant was paid for this period of time, and though a matter of discomfort for him personally I do not see this as an adequate ground for a finding of unfair dismissal on its own.

Suspension, though a difficult position for the Complainant, is often required in serious matters. As per Barr J, in Quirke v Bord Luthchleas no hEireann [1998] IR 83 there is a distinction between suspension as a penalty and suspension as a holding position pending the outcome which does not impugn the subject of the suspension. It would appear necessary, given the Complainants continued transgression following the initial investigation that a suspension was completely appropriate. Of note, is that the suspension did not continue for an inordinate amount of time which could have led to it being lifted as per Martin v Irish Nationwide Building Society [2001] 1 IR 228

Cross Examination

On the matter of not being allowed to cross examine. The Respondent relies upon O’Leary v An Post [2016] IEHC 237 where the issue was different; in that the Plaintiff did not seek to cross examine witnesses during those hearings. Further, An Post relied upon their policy and procedures which specifically excluded cross examination. On reading the Respondent Disciplinary Procedures for Ireland, dated October 2018, there is a great depth of information on the process and its outcomes. At point 10 it sets out what happens at a disciplinary hearing and states that an employee and representative can ask questions and respond, it does refer to cross examination at any stage.

The Respondent is of the view that they must balance the rights of witnesses, and that the Code of Practice refers that a person “may” confront others. In O’Leary, Keane J. also cites Mooney v. An Post[1998] 4 I.R. 288, in which Barrington J. explained:

“The terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case.”

Having considered all the circumstances in this case and the need to balance interests of parties, I am of the mind that the Respondent did not nullify the Complainants ability to mount a complete defence  at the disciplinary hearing

Other Appropriate Sanctions

The behaviours and actions of the Complainant are not commendatory. He has breached policies; he has failed to be completely honest with the Respondent and the fact that he continued to engage in these behaviours whilst under investigation for similar matters would be worrying for any reasonable employer.

However, as per Bank of Ireland v Reilly [2015] IEHC 241, the test is the response of a “reasonable employer” It does not appear to be the decision of a reasonable employer, to disregard other sanctions short of dismissal. On evidence given, a more reasoned approach would have been to consider a Final Written Warning. For this reason, I have concluded that the Respondent, in not considering other sanctions, escalated to dismissal too soon rendering the dismissal unfair.

Reinstatement

In addition to a claim for losses the Complainant asked to be reinstated, and I am required to consider this remedy.

S 7(1)(a) provides that reinstatement shall be in the position which the employee held immediately before dismissal on the terms on which they were employed before and deemed to have commenced on the day of the dismissal. Reinstatement is entirely within the discretion of the Adjudicator, having regard to all the circumstances. In An Bord Banistíochta Gaelscoil Moshíológ v Labour Court [2024] IESC 38 the Supreme Court addressed the matter of reinstatement.

“The remedy of reinstatement under s. 7(1)(a) can normally be said to be only applicable in a case where the WRC or Labour Court considers that the employee’s dismissal has been totally unfair and unjust, such as to require the employer to take the person back in the same job, without any break in service or loss of pay, and notwithstanding the inevitable breakdown in the relationship between them. It is a very strong remedy, and is only applicable in clear cut cases, where it is the appropriate response to perhaps high-handed and unjustifiable conduct on the part of an employer, and where any other remedy is not sufficient vindication of the employee”

In all the circumstances of this case, where there is an absolute breakdown in trust between the parties and where the Complainant is already successfully employed in another role; I do not find reinstatement a suitable remedy.

Complainant Losses

It is clear from the evidence presented that the Complainant has a good deal responsibility for their dismissal and breaches of the policies were serious disciplinary offences. It is also worrying the Complainant persisted in behaviours for which he was already subject to investigation.

The Complainant did not go into evidence and did not expand on his losses other than through his representative that he has suffered financially and socially. He was earning €564.20 per week and his claim is he at a loss for 33 weeks to when he secured alternative employment where he is, by the account of his representative, very successful. However, he offered no detail on the dates of taking up this new employment nor his new salary. The figure claimed is placed at €18,618.60 with a further amount of €2,256.80 representing his pay for notice, totalling €20875.40.

Compensation

The Respondent has submitted that figures quoted as a loss by the Complainant are excessive. However, given that I have concluded that the dismissal is unfair by way of failing to consider other sanctions and that reinstatement is not appropriate I must move to compensation for losses.

Section 7(1)(c) of the Acts: -

(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 under section 17 of 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,

Section 7(2)(c) provides that in examining the financial loss, an Adjudicator must have regard to the measures adopted by the employee to mitigate his loss. The legislation does not allow an Adjudicator to award compensation in an amount that goes beyond the financial loss attributable to the dismissal.

In assessing redress, I take account of the significant role played by the Complainant in thecircumstances leading to the dismissal and the evidence presented. I have no oral evidence from him nor greater details than the submission. Therefore, as an award of compensation for unfair dismissal is to make reparation for financial loss actually incurred in consequence of a dismissal taking into account the Complainant has not provided specific details on his attempts to mitigate the loss and I am mindful of the decision of the Labour Court in Cityjet and Ramon Sanchez Gil (UDD215) where the Court removed compensation where there was no demonstration of mitigation of loss.

Taking into account all the circumstances of this case I am awarding the Complainant compensation under the Acts in the amount of €2,256.80 i.e. four weeks’ pay and a further €1,000.00 as is just and equitable in all the circumstances arriving a total award of €3,256.80

CA-00059509-001 Section 8 of the Unfair Dismissals Act, 1977: 

For the reasons given above I find the complainant is well founded dismissed and I award compensation of €1000, as is just and equitable in all the circumstances.

CA-00059509-002 Section 6 of the Payment of Wages Act 1991: 

For the reasons given above I find this complaint is well founded and award redress of four week’s pay: €2, 256.80  

Dismissal, right to cross examine, contributory, failure to mitigate loss