Complainant

Respondent

Parties

Declan  Kavanagh

Tesco Ireland Retail

Representatives

Alison McComiskey, 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-00060945-001

11/01/2024

The Complainant attended with his wife. He had started working for the Respondent in 2009.

The Respondent provided evidence from the Investigation Office, the Disciplinary Office and the Store Manager.

The Complainant, took an affirmation. He explained he started with the Respondent in 2009. He could not afford legal advice. The process had taken its toll on his health. He was a carer for his wife.  The Complainant offered to pay back the money and he stated that it was an honest mistake. 

The Complainant submitted he had no idea whether he had placed the money in his pocket. There were papers as well which he believes he placed in the bin however, he accepted he did not place the money where he should have.

The CCTV footage was played.

The Complainant identified himself, noted the red light was flashing, they had tills operating, three cash tills, five card tills. The Complainant stated at the time that he was asking other staff for assistances as he was on duty in this area. He stated that there was a bin in one of the areas. There was no other staff on these tills throughout the footage. Other people passed through. The Complainant noted that he had receipts in his hands as well.

The Complainant stated that he asked for more staff to attend due to the busyness of the area.

The Complainant never thought to say throughout the process that he had asked the staff to get the manager. He noted he had worked for a long time with the company. It was not in his nature to rob or steal. It was an honest mistake. His wife was sick at the time. She has issues with her knee and back. Her hip pop out and she is waiting on an appointment for her stomach. She had collapsed whilst he was in work previously and he had had to leave. He had informed his manager and the team leaders were aware of his home situation.

The Complainant’s daughter was also sick at the time. She was eight. She had a cold and has allergies to a lot of things. The day in question, the Complainant had not seen a manager. He was not aware that the line manager was on.

Under cross-examination, the Complainant has said he had started at Christmas 2009 and then was kept on in 2010 on contract. At that stage, he has worked out the back doing deliveries, packing shelves etc. More recently, he had been placed on tills. The Complainant tore his shoulder and was moved to the tills. He was aware of the cash register procedure and that the self-scan had no place for cash. The team leader deals with the cash in the scan area so the Complainant would not have keys. He has different keys to put the money back in. There was a lost and found area at the customer desk which is close by.

In 2019, the Complainant had done training, claiming he had just signed the sheet.

The Complainant has seen the pictures of the CCTV footage and never denied that he had removed the money. He was asked why he had kept it in his hand. He stated he was talking to a customer moving around, he had other receipts in his hand and did not think about it. The next day, he remembered taking the money out but thought he put it in the cup, the drawer which can be seen below the screen on the CCTV footage. There is a drawer behind the Complainant as he is talking to the scan as you go colleague.

The notes of the meeting are accurate in relation to the suspension. 

The Complainant hoped he did not throw it in the bin. He would pay the money back if he had. He was not 100% sure of what he had done with the money. On the 8th of November, he had planned to give the money to the manager to put it in the machine. He had been so busy, he had forgotten. The Complainant believed the process was to put it in the cup in instances like this. It was put to him that the timing is five minutes which is a considerable period of time where the money had been in his presence. He believed that it all depended on how busy he was, that he was just holding it until he could put it into the cup. At 17:45, he has his hands in his trousers pocket and removed his glasses, placing his glasses in his jacket pocket. The €20.00 is no longer visible at that stage. The Complainant did not remember having his hand in his pocket. At closing time, the Complainant saw the senior manager but had completely forgot about the incident. He asked if the bins had been checked but he did not know if anyone had done this. There was a lot on his mind at the time with his wife and daughter.

The Complainant was asked whether he had told the other staff why he needed a manager. The Complainant had not bothered and did not get into it with them. Nor had he told them that it was urgent. It was put to him whether he had asked a colleague to leave the note in the scan area until someone was found. The Complainant noted this was against the policy to leave anything in that area. It was put to him that he could have gone to the customer service area and use the mike. The Complainant stated he could not keep an eye on the till if he did that and could not use the mike. In relation to pods for cash, the Complainant could not remember if they were working at the time. He did not consider using them. If you are on the till, the pods can be used, they are related to money from the till only, but not for scanning. If it was the scanners, it was the team leader or manager who did them.

The Complainant did not see his manager until 8:00 pm at closing.

At the disciplinary meeting, he was given the option on Teams of seeing the CCTV footage but the Complainant wanted to have the meeting over. The Complainant did not dispute the pictures. The Complainant could not say what happened to the €20.00. The Complainant was familiar with the honesty policy. He accepted that trust was needed between the employer and the employee. He has had lots of jobs over the years, worked in the bank for 11 years, then for this employer and he has always been honest.

The Complainant accepted that he had been offered an appeal. As he was very annoyed at the outcome, he did not bother appealing it. Someone recommended the WRC and he then issued his complaint.

On the second day of hearing the Complainant stated that he was seeking compensation. He remained out of employment. He had applied to three or four positions, some in the middle of last year, others in December 2024. The positions were all in relation to customer service. The Complainant would like to go back to work, however, he was limited in his hours as he was a carer. The Complainant was 61 years old and had previously worked for 19 years in a club and in a financial institution for eight years. He had had interviews with a number of retail operators. 

Under cross examination the Complainant confirmed the first time he made efforts to seek employment was in January 2024 after it was confirmed his employment was terminated. He stated he applied for a good few jobs and had at least three interviews.

Under questioning from me he confirmed that a few months after his employment had ended he became very depressed and went on medication; this lasted for two to three months.

The Complainant made a closing submission. He noted that he could not go back in time and that it was correct to say that they could not trust each other. The Complainant had worked with the staff in the Respondent Company for a number of years. It was an honour. The staff were very nice to work with. The Complainant accepted he had misplaced €20. He had offered to pay it back on that first day and ever since. It was a complete lack of judgment on his behalf. He should have put it somewhere and got someone. He had made attempts to get the manager. The Complainant had been there for 13 years and there had never been a breakdown of trust. He had never done anything stupid in that time. 

In relation to the investigation, the Complainant highlighted that the investigator had not viewed the CCTV footage. It does not show the Complainant putting the money in his pocket. He checked his pockets when he went home the next day and could not find it. The Complainant’s good name is ruined by this process. He had had to explain to his daughter why he was barred from a place that they had attended for a number of years, where he had worked. The Respondent Company had told him he could not attend during the investigation in the letter of the 31st of October 2023 suspending him.

The matter had put a huge strain on the Complainant’s marriage. He was not able to celebrate his stepdaughter’s wedding due to financial strains. He felt out of place as he could not give a financial gift. The Complainant had been made to feel like a criminal in his local town. He knew people in town were wondering why he was not there. The Complainant had been placed on blood pressure medication and sleeping tablets which he remained on. He was stressed due to missing payments on his house and the bank were seeking repossession on it. There were no difficulties in that regard prior to this. The Complainant’s income was the main one in the household. 

The Complainant stated the relationship of trust had been broken by the Respondent. He had offered to fix the situation and the Respondent had used his word against him.

The Complainant highlighted that the amount in question was so minor that to lead to dismissal seemed disproportionate. It had been eight years since he had been injured in work. The Complainant felt he had been treated badly since then. This was merely an excuse to dismiss him. The Complainant did not believe that dishonesty had been proven by the Respondents. There was no conclusive proof that he had put the money into his pocket. The first time that he saw the CCTV footage was on the first day of the hearing. On viewing the video, it did not show the Complainant doing anything wrong, just doing his job and keeping the tills going. 

The Respondent’s representative submitted that the matter had been a fair dismissal and a fair process followed. The burden rested on the Respondent she accepted. She believed it was clear that the Complainant had placed the €20.00 in his pocket and had failed to follow the proper procedures in relation to same. The investigation and disciplinary process were followed and fair. The dismissal was in line with the gravity of the situation and amounted to gross misconduct.

The colleague relations partner took an affirmation and gave the following evidence in her direct evidence. Her role was in colleague relations. This included investigations and grievances. In this instance, she had been the Investigating Officer. She had previously held such a role. She relied on the Hub Reports and the CCTV stills. These were created by the Hub Investigation Team remotely. All had been sent to the Complainant with the letter of invite. There was a preliminary meeting. The Complainant admitted he took the money out but was unsure what occurred thereafter. The money appeared to be in his hand for a while and scrunched up before placing in his pocket. The Complainant could not give any reason why the events had occurred. In relation to the company disciplinary process, it was a breach of trust and amounted to theft. The facts were not disputed. The Complainant had said he was sorry. There was no insight into why it had occurred. The Complainant stated that he had been thinking about his wife and daughter. He had not told any manager of the issue.

Under cross-examination, it was noted there was a lapse between the till and going back to the area. The colleague relations partner felt there was a gap where the Complainant could have done something with the money. There appeared to be 5 minutes between each event. The Colleague Relations Partner was aware that money gets stuck and normally it would be put into a press for the manager. The staff in this area are expected to work on. When asked whether the events could have happened as put forward by the Complaint, the Colleague Relations Partner said she could not answer that.

Under questioning from myself, the Colleague Relations Partner explained she had not taken part in the preliminary meeting but had received the notes from it. The ideal process that should have been followed was that the Complainant would call his supervisor or manager, there was always someone there. They could be paged. Other staff would be present or close by. The money should be held as you deal with other customers and dealt with when free.

The CCTV footage was played.

The Colleague Relations Partner had never seen it prior to the investigating meeting. Receipts would be thrown in the bin. She had never previously dealt with this worker. She accepted that there was a possibility the money could have been dropped.

The Colleague Relations Partner has a Certificate in HR Employment Communications. 

The policy changed for meetings in 2020 during Covid, it has not changed back in relation to having phone calls for some of these meetings. If an email had been provided, a meeting could have occurred by Teams. Prior to Covid, they would have occurred face-to-face in the store or at a hotel. At the meeting, the Complainant offered to repay the money.

The worker had signed a 2013 Store Operating Manual Disciplinary Process.

There is a colleague help system.

The Store Manager for the Respondent then gave evidence under oath. His role is Store Manager. He has been in that role for 11 years and had been with the company for 25 years. He is not the store manager for the store the Complainant worked in. The Store Manager’s role in the process was the Disciplinary Officer. He reviewed the notes and the process previously. He was proceeding under the disciplinary procedure and the honesty policy. The expectation from the Respondent is that workers are handling cash and it is a very important role with big responsibility and there is a duty of care regarding that cash. The video footage showed the Complainant taking the €20.00 out, holding onto it and putting it in his pocket and removing his hand. The Store Manager believed there was no mitigating factors as to why he had not dealt with the money at the time. The Store Manager did not accept that it was overly busy, rather it was normal level of busy.

The Store Manager pointed out whilst the footage was being played that there is one camera over every till. There was always colleagues working in the shop and scan area and if they are not busy, they can come over to help out in this area.

Under direct questioning, the Store Manager noted that if it was particularly busy then two colleagues would work in this area depending on how busy it was. Then he stated that there was no mitigating factors as to why it was not dealt with within a reasonable timeframe. He regarded it as a breach of the honest policy, the trust had broken down. He considered the matter as a serious misconduct and therefore dismissal was fair rather than a final warning. When the Store Manager asked the Complainant if he had seen the footage, it became clear he had not and the matter was rescheduled and the Store Manager sent it to him by email. At the second meeting, he asked again if the Complainant had seen the footage, he stated no. The Store Manager believed it was important the Complainant see it and the matter was postponed again. The Complainant was happy to continue thereafter. The Store Manager denied having his mind made up going into the disciplinary meeting. His role was to consider the mitigating factors, what had been breached and what had occurred.

The Store Manager was then cross-examined.  He could not say whether there were receipts in the Complainant’s hand.  The first time that he had met the Complainant in person was today.

The Store Manager accepted there had been five minutes lapse in between the money being in the till and his hand being placed in his pocket. He accepted that the Complainant continued to work in those minutes. He accepted there was no procedure for how many people should be on the tills. It was put to him that company procedure required that four persons should be on which had been agreed with the union. The Store Manager denied he was aware of this.

It was determined that the Complainant’s actions were gross misconduct. The Store Manager believed this was fair as he was suspended on that ground. The Store Manager accepted that there were no disciplinary issues on the Complainant’s file.

Under questioning by myself, the Store Manager noted he had no specific HR training. He had undergone standard store manager training. He was unclear as to whether the area or the bins had been checked. The Store Manager believed that for the level of busy at the tills, that it was appropriate to have one member of staff there.

In relation to mitigation when asked by me, the Store Manager noted that he had considered the family situation, the length of time the Complainant was working with the company, that he did not tell anyone, that it was not a huge amount of money. The Complainant had remove  the money without telling anyone. Whilst the Complainant had said he had asked for a manager, there was no note of same. At the tills, you could access up to €1,500.00 that had not occurred. It was not an overtly busy time. During this time, he had spoken to two other staff members. The Store Manager had never interviewed these staff member. He noted that this process occured by phone since Covid. The store manager had a looked at a final warning, a written warning, a demotion although it was hard to demote in this position. The Complainant had been suspended due to the level of misconduct.

The only way that the process could occur by Teams is if the person had access to a computer.

On the second day of hearing the Respondent confirmed that compensation was the most appropriate form of redress.

A closing statement was made on behalf of the Respondent. It’s representative set out that the facts were clear, there was an implied term between employers and employees to avoid breaking the trust between them which is critical. The Complainant had contributed to his dismissal, the internal process was dealt with correctly. Dismissal only arose due to his gross misconduct. The onus was on the employee. The Respondent had facilitated a fair process. The Complainant had provided conflicting statements around his awareness about having the money on his person. On the 31st of October he stated he recalled putting it in the cup. On the 8th of November he stated he had intended giving it to his manager but totally forgot he had it. He appeared to be aware that he had the money on him. 

The representative also referred to the lack of following the protocols. The Complainant’s position lacked credibility. Trust was critical to upholding the values of the organisation. The company had trusted him, he was not a new employee, he had over 10 years of employment, training and being part of the culture. 

There were a number of conflicting statements that he was too busy, there was no-one close by, there was someone close by, there was no manager, he did not think to tell the person in the scan area, he did not ring his manager, did not call the store after etc.

The representative stated there had been plenty of opportunity to view the CCTV.  The onus was on the Respondent to make it available. However, the Complainant did not review the footage. The Complainant had stated that his laptop was too old, the first time that he was too busy to see it. The Respondent’s position was that he had broken the policies in many ways that evening. There was a difference in his statements about having a lack of memory and then having greater memory about things. The Respondent had no choice but to terminate his employment. There must be mutual trust between employers and employees. There is an honesty policy which he had signed. 

The Respondent’s representative then referred to case law in relation to the test for reasonableness.  They referred to Nortek. In Bank of Ireland v O’Reilly Noonan J of the High Court had found that the court cannot substitute itself for the employer. The Respondent noted the Complainant could not do other roles as his shoulder was injured. 

It was submitted that the Respondent always followed fair procedures. There had been an entire breach of trust. The Complainant had contributed entirely to this. The representative requested that I find in favour of the Respondent Company.

The Respondent’s representative stated that the staff members used in the investigation and disciplinary procedure did not know that the Complainant had an injury prior to these events. The employer had lost an employee after 13 years which is a significant loss. He was a valued member of their team. They had placed trust in him. These were serious consequences which the Respondent never entered lightly. 

In it’s submission the Respondent relied on the following:

Woodies DIY v Ikoro UDD1739

Looney & Co Ltd v Looney UD 843/1984

Allied Irish Banks plc v Purcell [2012] 23 ELR 189

Bunyan v United Dominions Trust [1982] ILRM 404

Knox Hotel & Resort Ltd UD 27/2004

Power v Binchy (1929) 64 ILTR 35

O’Riordan v Great Southern Hotels (UD 1469/2003)

WRC Code of Practice on Grievance & Disciplinary Procedures (SI 146/2000)

Mooney v An Post [1998] 4 IR 288

Murray v Meath County Council UD 43/1978

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties. I have carefully considered the oral evidence adduced at hearing. I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters.

Section 6(1) of the Unfair Dismissals Act, 1977 states as follows:

“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) of the Act, states as follows:

“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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Section 6 Subsection (6) places the onus on the employer to establish that the dismissal was fair (the so-called reversed onus of proof) as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

Section 6 Subsection (7) provides where relevant, as follows:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer …considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act.”

Section 7 of the Unfair Dismissals Acts 1977-2015 provides where relevant as follows:

“(1) Where an employee is dismissed and the dismissal is an unfair dismissal…..[Redress Provisions then follow]…

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Actor with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

Paragraphs (a), (d) and (e) relate to the employer; paragraphs (b), (c) and (f) relate to the employee.

There are many formulations guiding decision makers in their assessment of when a dismissal for misconduct will be deemed fair. One such formulation appears in Bunyan v United Dominions Trust [1982] ILRM 404, where the Employment Appeals Tribunal put it thusly:

“…the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.” at p. 413

A substantially similar approach which has become known as ‘the band of reasonableness test’ puts the test as follows:

“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

British Leyland UK ltd v Swift [1981] IRLR 91, at page 93. Applied in Bank of Ireland v Reilly [2015] IEHC 241.

The Respondent cited the test as set out in Looney & Co. Ltd v Looney, UD 843/1984, is as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the Claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

Flood J in Frizelle v New Ross Credit Union Ltd (1997) IEHC 137 is also relevant here:

‘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’.

In Mullane v Honeywell Aerospace Ireland Limited, UD 111/2008 the Employment Appeals Tribunal stated:

“The Tribunal is not required to determine whether the claimant did or did not carry out the alleged act ... The Tribunal’s function is to establish whether the respondent has proven that the dismissal was not unfair, having regard to the terms of the Unfair Dismissals Acts 1997 [sic] to 2001. For this to be established the Tribunal must be satisfied that the alleged act … was fully and fairly investigated by the respondent, that the investigation and disciplinary process respects the rights of the claimant, that the conclusion that the offending act had been perpetrated by the claimant was reasonable on the balance of probabilities and that the dismissal was a proportionate response within the band of sanctions which could be imposed by a reasonable employer.”

In An Employee v. A Beverage Company ADJ-00027338 the Complainant was dismissed for gross misconduct after taking two cartons of juice from the Respondent’s beverage production line. The following tests were applied to the facts of that case:

“Test to be applied

(i) Was the finding of fact that the Respondent reached following the disciplinary procedure (that on the balance of probabilities, the Complainant stole product) reasonable?

(ii) Insofar as there may have been flaws in the disciplinary procedure, did these fatally undermine the findings of fact that was reached?

(iii) Was the finding of fact reasonably capable of amounting to gross misconduct?

(iv) Was the sanction of dismissal appropriate in all the circumstances?”

I have found this formulation to be a useful tool in my approach to the present case and I will apply these tests as a means of presenting my findings in an orderly fashion, but it will be evident that there is a commonality/overlap as between the findings made in relation to numbers (iii) and (iv) due to the circumstances of the case. There is also a degree of overlap between those issues and the procedural issues (at number (iii) above) which will be discussed last. 

(i) Whether the Primary Finding of Fact was reasonable.

The Complainant admitted that he did not place the money where he should have. This admission, it should be noted was made voluntarily and was not extracted from the Complainant under threat or by subterfuge.

I find that the primary finding of fact was reasonable.

(ii) Insofar as there may have been flaws in the disciplinary procedure, did these fatally undermine the findings of fact that was reached?

During the investigation the bins where the money may have gone was never searched. Further the two other employees present at the relevant period of time, & whom the Complainant was engaging with around the relevant time were never interviewed. I find these to be fatal flaws which undermine the findings of fact reached.

(iii) Whether the offence as found was capable of amounting to gross misconduct.

I apply the statement  made in the judgement of  Finnegan J in the Supreme Court decision in Berber v Dunnes Stores Ltd [2009] ELR 61, that there is an implied term in every contract of employment whereby a mutual obligation falls on both parties not to: “without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them” and I also apply the following passage from the same judgement:

“The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.”

In the present case the Respondent contended that this mutual obligation of trust and confidence includes the duty of fidelity and honesty, and I accept that this is so. However, I do not find there was any dishonesty on the part of the Complainant. He misplaced the money but never tried to hide this fact, accepting from the very beginning that this was the case.

(iv) Whether the Sanction of Dismissal was Appropriate in all the Circumstances

Given the Complainant’s long unblemished history with the Respondent, his lack of malicious intent, etc I find that the sanction was disproportionate and a lesser penalty should have been imposed.

Accordingly, I find that the complainant was unfairly dismissed.

Section 7 addresses redress for unfair dismissal.

“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 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,

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.

(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

(2B) Where—

(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and

(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,

the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

In accordance with the provisions of section 7(1) of the Act, I am obliged to determine which of the three forms of redress open to me is most appropriate having regard to the circumstances of this case. The parties were agreed compensation is the most appropriate form of redress. In the circumstances, and in light of the fundamental breakdown of the relationship between the parties, I am inclined to agree. In the circumstances of this case re-engagement or reinstatement are not tenable alternatives to compensation.

The Complainant’s evidence was that he remains out of work despite applying for jobs. I am satisfied that the Complainant attempted to mitigate his losses. The parties accepted that the Complainant had earned €268 per week. In that regard I find that the Complainant is entitled to €12,000.00.

I find this complaint to be well founded. I order the Respondent to pay the Complainant €12,000.00 in compensation for loss of remuneration arising from the Complainant’s unfair dismissal which I deem to be just and equitable having regard to all the circumstances.

Unfair dismissal; Process;

Complainant

Respondent

Parties

Declan  Kavanagh

Tesco Ireland Retail

Representatives

Aisling McDevitt 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-00060945-001

11/01/2024

The Complainant attended with his wife. He had started working for the Respondent in 2009.

The Respondent provided evidence from the Investigation Office, the Disciplinary Office and the Store Manager.

The Complainant, took an affirmation. He explained he started with the Respondent in 2009. He could not afford legal advice. The process had taken its toll on his health. He was a carer for his wife.  The Complainant offered to pay back the money and he stated that it was an honest mistake. 

The Complainant submitted he had no idea whether he had placed the money in his pocket. There were papers as well which he believes he placed in the bin however, he accepted he did not place the money where he should have.

The CCTV footage was played.

The Complainant identified himself, noted the red light was flashing, they had tills operating, three cash tills, five card tills. The Complainant stated at the time that he was asking other staff for assistances as he was on duty in this area. He stated that there was a bin in one of the areas. There was no other staff on these tills throughout the footage. Other people passed through. The Complainant noted that he had receipts in his hands as well.

The Complainant stated that he asked for more staff to attend due to the busyness of the area.

The Complainant never thought to say throughout the process that he had asked the staff to get the manager. He noted he had worked for a long time with the company. It was not in his nature to rob or steal. It was an honest mistake. His wife was sick at the time. She has issues with her knee and back. Her hip pop out and she is waiting on an appointment for her stomach. She had collapsed whilst he was in work previously and he had had to leave. He had informed his manager and the team leaders were aware of his home situation.

The Complainant’s daughter was also sick at the time. She was eight. She had a cold and has allergies to a lot of things. The day in question, the Complainant had not seen a manager. He was not aware that the line manager was on.

Under cross-examination, the Complainant has said he had started at Christmas 2009 and then was kept on in 2010 on contract. At that stage, he has worked out the back doing deliveries, packing shelves etc. More recently, he had been placed on tills. The Complainant tore his shoulder and was moved to the tills. He was aware of the cash register procedure and that the self-scan had no place for cash. The team leader deals with the cash in the scan area so the Complainant would not have keys. He has different keys to put the money back in. There was a lost and found area at the customer desk which is close by.

In 2019, the Complainant had done training, claiming he had just signed the sheet.

The Complainant has seen the pictures of the CCTV footage and never denied that he had removed the money. He was asked why he had kept it in his hand. He stated he was talking to a customer moving around, he had other receipts in his hand and did not think about it. The next day, he remembered taking the money out but thought he put it in the cup, the drawer which can be seen below the screen on the CCTV footage. There is a drawer behind the Complainant as he is talking to the scan as you go colleague.

The notes of the meeting are accurate in relation to the suspension. 

The Complainant hoped he did not throw it in the bin. He would pay the money back if he had. He was not 100% sure of what he had done with the money. On the 8th of November, he had planned to give the money to the manager to put it in the machine. He had been so busy, he had forgotten. The Complainant believed the process was to put it in the cup in instances like this. It was put to him that the timing is five minutes which is a considerable period of time where the money had been in his presence. He believed that it all depended on how busy he was, that he was just holding it until he could put it into the cup. At 17:45, he has his hands in his trousers pocket and removed his glasses, placing his glasses in his jacket pocket. The €20.00 is no longer visible at that stage. The Complainant did not remember having his hand in his pocket. At closing time, the Complainant saw the senior manager but had completely forgot about the incident. He asked if the bins had been checked but he did not know if anyone had done this. There was a lot on his mind at the time with his wife and daughter.

The Complainant was asked whether he had told the other staff why he needed a manager. The Complainant had not bothered and did not get into it with them. Nor had he told them that it was urgent. It was put to him whether he had asked a colleague to leave the note in the scan area until someone was found. The Complainant noted this was against the policy to leave anything in that area. It was put to him that he could have gone to the customer service area and use the mike. The Complainant stated he could not keep an eye on the till if he did that and could not use the mike. In relation to pods for cash, the Complainant could not remember if they were working at the time. He did not consider using them. If you are on the till, the pods can be used, they are related to money from the till only, but not for scanning. If it was the scanners, it was the team leader or manager who did them.

The Complainant did not see his manager until 8:00 pm at closing.

At the disciplinary meeting, he was given the option on Teams of seeing the CCTV footage but the Complainant wanted to have the meeting over. The Complainant did not dispute the pictures. The Complainant could not say what happened to the €20.00. The Complainant was familiar with the honesty policy. He accepted that trust was needed between the employer and the employee. He has had lots of jobs over the years, worked in the bank for 11 years, then for this employer and he has always been honest.

The Complainant accepted that he had been offered an appeal. As he was very annoyed at the outcome, he did not bother appealing it. Someone recommended the WRC and he then issued his complaint.

On the second day of hearing the Complainant stated that he was seeking compensation. He remained out of employment. He had applied to three or four positions, some in the middle of last year, others in December 2024. The positions were all in relation to customer service. The Complainant would like to go back to work, however, he was limited in his hours as he was a carer. The Complainant was 61 years old and had previously worked for 19 years in a club and in a financial institution for eight years. He had had interviews with a number of retail operators. 

Under cross examination the Complainant confirmed the first time he made efforts to seek employment was in January 2024 after it was confirmed his employment was terminated. He stated he applied for a good few jobs and had at least three interviews.

Under questioning from me he confirmed that a few months after his employment had ended he became very depressed and went on medication; this lasted for two to three months.

The Complainant made a closing submission. He noted that he could not go back in time and that it was correct to say that they could not trust each other. The Complainant had worked with the staff in the Respondent Company for a number of years. It was an honour. The staff were very nice to work with. The Complainant accepted he had misplaced €20. He had offered to pay it back on that first day and ever since. It was a complete lack of judgment on his behalf. He should have put it somewhere and got someone. He had made attempts to get the manager. The Complainant had been there for 13 years and there had never been a breakdown of trust. He had never done anything stupid in that time. 

In relation to the investigation, the Complainant highlighted that the investigator had not viewed the CCTV footage. It does not show the Complainant putting the money in his pocket. He checked his pockets when he went home the next day and could not find it. The Complainant’s good name is ruined by this process. He had had to explain to his daughter why he was barred from a place that they had attended for a number of years, where he had worked. The Respondent Company had told him he could not attend during the investigation in the letter of the 31st of October 2023 suspending him.

The matter had put a huge strain on the Complainant’s marriage. He was not able to celebrate his stepdaughter’s wedding due to financial strains. He felt out of place as he could not give a financial gift. The Complainant had been made to feel like a criminal in his local town. He knew people in town were wondering why he was not there. The Complainant had been placed on blood pressure medication and sleeping tablets which he remained on. He was stressed due to missing payments on his house and the bank were seeking repossession on it. There were no difficulties in that regard prior to this. The Complainant’s income was the main one in the household. 

The Complainant stated the relationship of trust had been broken by the Respondent. He had offered to fix the situation and the Respondent had used his word against him.

The Complainant highlighted that the amount in question was so minor that to lead to dismissal seemed disproportionate. It had been eight years since he had been injured in work. The Complainant felt he had been treated badly since then. This was merely an excuse to dismiss him. The Complainant did not believe that dishonesty had been proven by the Respondents. There was no conclusive proof that he had put the money into his pocket. The first time that he saw the CCTV footage was on the first day of the hearing. On viewing the video, it did not show the Complainant doing anything wrong, just doing his job and keeping the tills going. 

The Respondent’s representative submitted that the matter had been a fair dismissal and a fair process followed. The burden rested on the Respondent she accepted. She believed it was clear that the Complainant had placed the €20.00 in his pocket and had failed to follow the proper procedures in relation to same. The investigation and disciplinary process were followed and fair. The dismissal was in line with the gravity of the situation and amounted to gross misconduct.

The colleague relations partner took an affirmation and gave the following evidence in her direct evidence. Her role was in colleague relations. This included investigations and grievances. In this instance, she had been the Investigating Officer. She had previously held such a role. She relied on the Hub Reports and the CCTV stills. These were created by the Hub Investigation Team remotely. All had been sent to the Complainant with the letter of invite. There was a preliminary meeting. The Complainant admitted he took the money out but was unsure what occurred thereafter. The money appeared to be in his hand for a while and scrunched up before placing in his pocket. The Complainant could not give any reason why the events had occurred. In relation to the company disciplinary process, it was a breach of trust and amounted to theft. The facts were not disputed. The Complainant had said he was sorry. There was no insight into why it had occurred. The Complainant stated that he had been thinking about his wife and daughter. He had not told any manager of the issue.

Under cross-examination, it was noted there was a lapse between the till and going back to the area. The colleague relations partner felt there was a gap where the Complainant could have done something with the money. There appeared to be 5 minutes between each event. The Colleague Relations Partner was aware that money gets stuck and normally it would be put into a press for the manager. The staff in this area are expected to work on. When asked whether the events could have happened as put forward by the Complaint, the Colleague Relations Partner said she could not answer that.

Under questioning from myself, the Colleague Relations Partner explained she had not taken part in the preliminary meeting but had received the notes from it. The ideal process that should have been followed was that the Complainant would call his supervisor or manager, there was always someone there. They could be paged. Other staff would be present or close by. The money should be held as you deal with other customers and dealt with when free.

The CCTV footage was played.

The Colleague Relations Partner had never seen it prior to the investigating meeting. Receipts would be thrown in the bin. She had never previously dealt with this worker. She accepted that there was a possibility the money could have been dropped.

The Colleague Relations Partner has a Certificate in HR Employment Communications. 

The policy changed for meetings in 2020 during Covid, it has not changed back in relation to having phone calls for some of these meetings. If an email had been provided, a meeting could have occurred by Teams. Prior to Covid, they would have occurred face-to-face in the store or at a hotel. At the meeting, the Complainant offered to repay the money.

The worker had signed a 2013 Store Operating Manual Disciplinary Process.

There is a colleague help system.

The Store Manager for the Respondent then gave evidence under oath. His role is Store Manager. He has been in that role for 11 years and had been with the company for 25 years. He is not the store manager for the store the Complainant worked in. The Store Manager’s role in the process was the Disciplinary Officer. He reviewed the notes and the process previously. He was proceeding under the disciplinary procedure and the honesty policy. The expectation from the Respondent is that workers are handling cash and it is a very important role with big responsibility and there is a duty of care regarding that cash. The video footage showed the Complainant taking the €20.00 out, holding onto it and putting it in his pocket and removing his hand. The Store Manager believed there was no mitigating factors as to why he had not dealt with the money at the time. The Store Manager did not accept that it was overly busy, rather it was normal level of busy.

The Store Manager pointed out whilst the footage was being played that there is one camera over every till. There was always colleagues working in the shop and scan area and if they are not busy, they can come over to help out in this area.

Under direct questioning, the Store Manager noted that if it was particularly busy then two colleagues would work in this area depending on how busy it was. Then he stated that there was no mitigating factors as to why it was not dealt with within a reasonable timeframe. He regarded it as a breach of the honest policy, the trust had broken down. He considered the matter as a serious misconduct and therefore dismissal was fair rather than a final warning. When the Store Manager asked the Complainant if he had seen the footage, it became clear he had not and the matter was rescheduled and the Store Manager sent it to him by email. At the second meeting, he asked again if the Complainant had seen the footage, he stated no. The Store Manager believed it was important the Complainant see it and the matter was postponed again. The Complainant was happy to continue thereafter. The Store Manager denied having his mind made up going into the disciplinary meeting. His role was to consider the mitigating factors, what had been breached and what had occurred.

The Store Manager was then cross-examined.  He could not say whether there were receipts in the Complainant’s hand.  The first time that he had met the Complainant in person was today.

The Store Manager accepted there had been five minutes lapse in between the money being in the till and his hand being placed in his pocket. He accepted that the Complainant continued to work in those minutes. He accepted there was no procedure for how many people should be on the tills. It was put to him that company procedure required that four persons should be on which had been agreed with the union. The Store Manager denied he was aware of this.

It was determined that the Complainant’s actions were gross misconduct. The Store Manager believed this was fair as he was suspended on that ground. The Store Manager accepted that there were no disciplinary issues on the Complainant’s file.

Under questioning by myself, the Store Manager noted he had no specific HR training. He had undergone standard store manager training. He was unclear as to whether the area or the bins had been checked. The Store Manager believed that for the level of busy at the tills, that it was appropriate to have one member of staff there.

In relation to mitigation when asked by me, the Store Manager noted that he had considered the family situation, the length of time the Complainant was working with the company, that he did not tell anyone, that it was not a huge amount of money. The Complainant had remove  the money without telling anyone. Whilst the Complainant had said he had asked for a manager, there was no note of same. At the tills, you could access up to €1,500.00 that had not occurred. It was not an overtly busy time. During this time, he had spoken to two other staff members. The Store Manager had never interviewed these staff member. He noted that this process occured by phone since Covid. The store manager had a looked at a final warning, a written warning, a demotion although it was hard to demote in this position. The Complainant had been suspended due to the level of misconduct.

The only way that the process could occur by Teams is if the person had access to a computer.

On the second day of hearing the Respondent confirmed that compensation was the most appropriate form of redress.

A closing statement was made on behalf of the Respondent. It’s representative set out that the facts were clear, there was an implied term between employers and employees to avoid breaking the trust between them which is critical. The Complainant had contributed to his dismissal, the internal process was dealt with correctly. Dismissal only arose due to his gross misconduct. The onus was on the employee. The Respondent had facilitated a fair process. The Complainant had provided conflicting statements around his awareness about having the money on his person. On the 31st of October he stated he recalled putting it in the cup. On the 8th of November he stated he had intended giving it to his manager but totally forgot he had it. He appeared to be aware that he had the money on him. 

The representative also referred to the lack of following the protocols. The Complainant’s position lacked credibility. Trust was critical to upholding the values of the organisation. The company had trusted him, he was not a new employee, he had over 10 years of employment, training and being part of the culture. 

There were a number of conflicting statements that he was too busy, there was no-one close by, there was someone close by, there was no manager, he did not think to tell the person in the scan area, he did not ring his manager, did not call the store after etc.

The representative stated there had been plenty of opportunity to view the CCTV.  The onus was on the Respondent to make it available. However, the Complainant did not review the footage. The Complainant had stated that his laptop was too old, the first time that he was too busy to see it. The Respondent’s position was that he had broken the policies in many ways that evening. There was a difference in his statements about having a lack of memory and then having greater memory about things. The Respondent had no choice but to terminate his employment. There must be mutual trust between employers and employees. There is an honesty policy which he had signed. 

The Respondent’s representative then referred to case law in relation to the test for reasonableness.  They referred to Nortek. In Bank of Ireland v O’Reilly Noonan J of the High Court had found that the court cannot substitute itself for the employer. The Respondent noted the Complainant could not do other roles as his shoulder was injured. 

It was submitted that the Respondent always followed fair procedures. There had been an entire breach of trust. The Complainant had contributed entirely to this. The representative requested that I find in favour of the Respondent Company.

The Respondent’s representative stated that the staff members used in the investigation and disciplinary procedure did not know that the Complainant had an injury prior to these events. The employer had lost an employee after 13 years which is a significant loss. He was a valued member of their team. They had placed trust in him. These were serious consequences which the Respondent never entered lightly. 

In it’s submission the Respondent relied on the following:

Woodies DIY v Ikoro UDD1739

Looney & Co Ltd v Looney UD 843/1984

Allied Irish Banks plc v Purcell [2012] 23 ELR 189

Bunyan v United Dominions Trust [1982] ILRM 404

Knox Hotel & Resort Ltd UD 27/2004

Power v Binchy (1929) 64 ILTR 35

O’Riordan v Great Southern Hotels (UD 1469/2003)

WRC Code of Practice on Grievance & Disciplinary Procedures (SI 146/2000)

Mooney v An Post [1998] 4 IR 288

Murray v Meath County Council UD 43/1978

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties. I have carefully considered the oral evidence adduced at hearing. I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters.

Section 6(1) of the Unfair Dismissals Act, 1977 states as follows:

“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) of the Act, states as follows:

“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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Section 6 Subsection (6) places the onus on the employer to establish that the dismissal was fair (the so-called reversed onus of proof) as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

Section 6 Subsection (7) provides where relevant, as follows:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer …considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) of section 7 (2) of this Act.”

Section 7 of the Unfair Dismissals Acts 1977-2015 provides where relevant as follows:

“(1) Where an employee is dismissed and the dismissal is an unfair dismissal…..[Redress Provisions then follow]…

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Actor with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

Paragraphs (a), (d) and (e) relate to the employer; paragraphs (b), (c) and (f) relate to the employee.

There are many formulations guiding decision makers in their assessment of when a dismissal for misconduct will be deemed fair. One such formulation appears in Bunyan v United Dominions Trust [1982] ILRM 404, where the Employment Appeals Tribunal put it thusly:

“…the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.” at p. 413

A substantially similar approach which has become known as ‘the band of reasonableness test’ puts the test as follows:

“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

British Leyland UK ltd v Swift [1981] IRLR 91, at page 93. Applied in Bank of Ireland v Reilly [2015] IEHC 241.

The Respondent cited the test as set out in Looney & Co. Ltd v Looney, UD 843/1984, is as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the Claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

Flood J in Frizelle v New Ross Credit Union Ltd (1997) IEHC 137 is also relevant here:

‘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’.

In Mullane v Honeywell Aerospace Ireland Limited, UD 111/2008 the Employment Appeals Tribunal stated:

“The Tribunal is not required to determine whether the claimant did or did not carry out the alleged act ... The Tribunal’s function is to establish whether the respondent has proven that the dismissal was not unfair, having regard to the terms of the Unfair Dismissals Acts 1997 [sic] to 2001. For this to be established the Tribunal must be satisfied that the alleged act … was fully and fairly investigated by the respondent, that the investigation and disciplinary process respects the rights of the claimant, that the conclusion that the offending act had been perpetrated by the claimant was reasonable on the balance of probabilities and that the dismissal was a proportionate response within the band of sanctions which could be imposed by a reasonable employer.”

In An Employee v. A Beverage Company ADJ-00027338 the Complainant was dismissed for gross misconduct after taking two cartons of juice from the Respondent’s beverage production line. The following tests were applied to the facts of that case:

“Test to be applied

(i) Was the finding of fact that the Respondent reached following the disciplinary procedure (that on the balance of probabilities, the Complainant stole product) reasonable?

(ii) Insofar as there may have been flaws in the disciplinary procedure, did these fatally undermine the findings of fact that was reached?

(iii) Was the finding of fact reasonably capable of amounting to gross misconduct?

(iv) Was the sanction of dismissal appropriate in all the circumstances?”

I have found this formulation to be a useful tool in my approach to the present case and I will apply these tests as a means of presenting my findings in an orderly fashion, but it will be evident that there is a commonality/overlap as between the findings made in relation to numbers (iii) and (iv) due to the circumstances of the case. There is also a degree of overlap between those issues and the procedural issues (at number (iii) above) which will be discussed last. 

(i) Whether the Primary Finding of Fact was reasonable.

The Complainant admitted that he did not place the money where he should have. This admission, it should be noted was made voluntarily and was not extracted from the Complainant under threat or by subterfuge.

I find that the primary finding of fact was reasonable.

(ii) Insofar as there may have been flaws in the disciplinary procedure, did these fatally undermine the findings of fact that was reached?

During the investigation the bins where the money may have gone was never searched. Further the two other employees present at the relevant period of time, & whom the Complainant was engaging with around the relevant time were never interviewed. I find these to be fatal flaws which undermine the findings of fact reached.

(iii) Whether the offence as found was capable of amounting to gross misconduct.

I apply the statement  made in the judgement of  Finnegan J in the Supreme Court decision in Berber v Dunnes Stores Ltd [2009] ELR 61, that there is an implied term in every contract of employment whereby a mutual obligation falls on both parties not to: “without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them” and I also apply the following passage from the same judgement:

“The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.”

In the present case the Respondent contended that this mutual obligation of trust and confidence includes the duty of fidelity and honesty, and I accept that this is so. However, I do not find there was any dishonesty on the part of the Complainant. He misplaced the money but never tried to hide this fact, accepting from the very beginning that this was the case.

(iv) Whether the Sanction of Dismissal was Appropriate in all the Circumstances

Given the Complainant’s long unblemished history with the Respondent, his lack of malicious intent, etc I find that the sanction was disproportionate and a lesser penalty should have been imposed.

Accordingly, I find that the complainant was unfairly dismissed.

Section 7 addresses redress for unfair dismissal.

“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 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,

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.

(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

(2B) Where—

(a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and

(b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure,

the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

In accordance with the provisions of section 7(1) of the Act, I am obliged to determine which of the three forms of redress open to me is most appropriate having regard to the circumstances of this case. The parties were agreed compensation is the most appropriate form of redress. In the circumstances, and in light of the fundamental breakdown of the relationship between the parties, I am inclined to agree. In the circumstances of this case re-engagement or reinstatement are not tenable alternatives to compensation.

The Complainant’s evidence was that he remains out of work despite applying for jobs. I am satisfied that the Complainant attempted to mitigate his losses. The parties accepted that the Complainant had earned €268 per week. In that regard I find that the Complainant is entitled to €12,000.00.

I find this complaint to be well founded. I order the Respondent to pay the Complainant €12,000.00 in compensation for loss of remuneration arising from the Complainant’s unfair dismissal which I deem to be just and equitable having regard to all the circumstances.

Unfair dismissal; Process;