ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00055471
Parties:
| Complainant | Respondent |
Parties | Katarzyna Skula | Tesco Ireland Ltd |
| Complainant | Respondent |
Representatives | Self-Represented /Assisted by friend Mr T Hoffmann | Ms Dajana Sinik of IBEC |
Complaint:
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-00067611-001 | 22/11/2024 |
Date of Adjudication Hearing: 23/07/2025
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury was explained to all parties.
The issue of anonymisation in the published finding of the WRC was considered by the Parties but not deemed necessary.
Background:
The issue in contention concerned the alleged Unfair Dismissal of a Shop Assistant by a large Supermarket Chain. The employment had begun on the 20th September 2010 and ended on the 21st November 2024. The rate of pay was stated by the Complainant to have been €617:10 for a 30-hour week.
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1: Summary of Complainant’s Case:
The Complainant was self-represented but assisted by Mr T Hoffmann. An extensive Oral testimony was presented. The Complainant had worked without incident since 2010. In late 2024 she had made a number of “human errors” on the self-scanner during the night shift. They were very minor. She had received no proper training on the self-scanners and was very regretful if any issues had arisen. She was not dishonest in any way. The penalty of dismissal imposed was completely disproportionate to the incidents involved. Mr Hoffmann on the Complainant’s behalf stated that the Complainant deserved a second chance. Covid 19 had hit her hard and she had experienced Depression as a follow up. She had always been an excellent, reliable and trustworthy worker. The entire story was unfair for a long-standing worker on the night shift. The Employer should in fairness and Natural Justice show some humanity to a good worker rather than treating her like a “Robber”. She was seeking re engagement. |
2: Summary of Respondent’s Case:
The Respondent was represented by Ms Sinik of IBEC supported by a number of Managers. A very detailed written submission was submitted. The essence of the Respondent case was that Internal fraud prevention had identified the Complainant as a staff member who was dishonestly passing items through the self-scanner while on the night shift. A very careful investigation had taken place with extensive CCTV images presented. A comprehensive professional Investigative & Disciplinary process had followed. It was absolutely in keeping with SI 146 of 2000, Statutory Code of Practice on Grievance and Disciplinary Procedures. It had to be noted that the Complainant did not avail of any offers of Representation. Evidence was given by the Manager who chaired the Disciplinary Meeting that the Complainant had offered no coherent explanations for her actions other than “human error”. The Respondent was a major Retail Organisation and staff honesty was absolutely paramount. On questioning from the Adjudicator as to other possible outcomes it was stated that in this case Dismissal had to be the outcome. It had been taken only after extensive consideration and reflection. The Manager who heard the Appeal Hearing gave comprehensive Oral evidence as to why the Appeal was refused. He was a long standing (30+ years) Retail Manager. He reviewed all the evidence and, in his view, based on long experience, there was a pattern of deliberate repetition in the accused behaviour. The “Human Error” argument was not convincing. On this basis he endorsed the Dismissal decision. Ms Sinik referenced extensive case law precedents headlined by Looney v Looney UD 843/1984, Berber v Dunnes Stores Ltd, [2009] ELR 61 & Moore v Knox Hotel and Resort UD 27/2004.
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3: Findings and Conclusions:
3:1 The Legal Position. The case is clearly withing the remit of the Unfair Dismissals Act,1977 supported by SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures. There is an extensive range of precedent Dismissal cases. This case was one of dismissal for Serious Misconduct. The long-standing Legal precedent is Frizell v New Ross Credit Union. [1997] IEHC 137 In Frizelle v New Ross Credit Union Ltd, Justice Flood 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.” 3:2 The Role of the Adjudicator There is extensive legal Authority regarding the principle that the former Tribunal or the Adjudicator is not to substitute themselves for Employer and effectively engage in a de facto rerunning 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 upon at length. 3:3 Legal summary 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”. None the less, all cases rest on their own merits and particular factual matrix. We must review this next. 3:4 Consideration of evidence both Oral and Written presented. There can be no doubt having reviewed all the extensive evidence presented that a comprehensive and procedurally correct process was followed. SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures was well observed. The Managers giving Oral Testimony were experienced professionals who gave very competent evidence. The Manager who heard the Appeal Hearing was very persuasive to the proceedings. He was very experienced and appeared to have made his decision to reject the Appeal on very strong grounds. Dishonesty in a retail environment was simply not acceptable. His comments regarding the appearance of “repetitive behaviour” were telling and the impact of this on the fundamental “Bond of Trust” between an employee, especially in a Retail environment, and an employer. Essentially the basis of trust was broken. The Complainant choose not to have any Representation at any of the Internal Hearings. In the view of the Adjudication Officer this was probably an unfortunate decision. Regardless, she was very unclear in her explanations. Relying on “Human Error”, Fallout from a severe Covid attack and Domestic stress were not very telling arguments. 3:4:1 Reasonableness of Employer/Respondent Dismissal Decision. The question for the Adjudication Officer is to consider the Reasonableness of the Dismissal decision. The former Employment Appeals Tribunal usefully summarised its approach to dismissals for “conduct” and the question of “Reasonableness” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978. The Tribunal applied the test of “reasonableness” to 1. the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and, 2. whether the procedures adopted were fair and reasonable and 3. the reasonableness of the conclusion arrived at by the Respondent. In this case the Investigation and Disciplinary procedures were thorough and appeared to the outside observer fair. To quote Mr Justice Flood, in the view of the Adjudicator, Natural Justice was observed. Mr Justice Flood also asked the question if 4. “a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.” had been taken.
Dismissal after 13 years was not an easy decision. The Oral testimony of the initial Disciplinary Hearing Manager and particularly the Appeal Manager was crucial. An easy decision had not been taken. It has to fall in the Bounds of Reasonableness for a major Retail employer. 3:5 Summary The case for Unfair Dismissal has not been made out. The complaint fails.
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4: Decision:
Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.
CA: 00067611-001
The case for an Unfair Dismissal has not been made out.
The complaint fails.
Dated: 22nd of September 2025
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Unfair Dismissal |