Complainant

Respondent

Parties

Sabrina  Sweeney

Lidl (Lidl Ireland GMBH)

Representatives

Eugene Deering BL

Scott Jevons Employee Relations Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00065688-001

29/08/2024

The complainant, Ms Sweeney, worked for the respondent, LidL Ireland GMBH.  Ms Sweeney alleges that she was dismissed by the respondent an allegation which the respondent denies.

Evidence was given under oath/affirmation by Ms Sweeney, the complainant and by Mr Nick Wright, Deputy Store Manager, and Ms Imelda Balfe, Hr Representative.

All evidence was subject to cross examination.

All documents submitted were considered by me in reaching my decision.

The Complainant was employed by the Respondent company as a Customer Assistant where she commenced employment on the 4th of September 2023. The Complainant worked approximately 20 hours work per week.                The Complainant was summarily dismissed from her employment on the 20th of May 2024.

In the absence of the manager, the Complainant reported to the store deputy manager, Mr. Nick Wright. At all times, Mr. Wright was acting as agent of the Respondent company in his role as deputy store manager.

It is the Complainant's case that she had been on holiday leave from the 27th of April 2024 to the 4th of May 2024, dates inclusive. While on holidays, the Complainant suffered a miscarriage. She then arranged to have her work shift cover on the 5th of May while she attended hospital for necessary medical treatment. The Complainant obtained an initial medical certificate from the treating doctor indicating that she was unable to attend work from the 10th of May 2024 to the 13th of May 2024,  due to her miscarriage. The Complainant had a further medical certificate from her GP indicating that she was unable to attend work from the 10th of May 2024 to the 17th of May 2024. The Complainant also obtained an additional medical certificate from her GP practice indicating that she was unable to attend work from the 28th of June to the 5th of July.

A medical report from the complainant’s GP notes, inter alia, the following: "Sabrina recently experience a pregnancy loss in early May — same was confirmed on bhcg testing in the surgery here and she was attending the early pregnancy assessment unit in Sligo Hospital for follow up testing.

The report goes on to note: "[...] I would like to confirm categorically that Sabrina has suffered a miscarriage in the past month and I am deeply concerned about her treatment in the workplace.

On the 20th of May 2024, the Complainant, on her return to work, was summoned to an unscheduled meeting with Mr. Nick Wright, deputy manager of the Respondent store in his office. The Complainant was not made aware in advance concerning the purpose of the meeting and nor was she represented at the meeting. The meeting consisted only of the Complainant and Mr. Wright.

Mr. Wright proceeded to verbally inform the Complainant that he did not believe she had suffered a miscarriage and that maybe it had happened to her before in her life but that he did not believe her at this time. He then proceeded to inform the Complainant that she was fired. The Complainant was aghast at the tone and content of Mr. Wright's statements and she immediately informed him that she was not lying, that she had suffered a miscarriage and that she had medical certificates with her for the period of her absence, namely from the 10th of May to the 17th of May inclusive. She informed Mr. Wright of the medical certificates that she had with her. Mr. Wright refused to accept them from her stating he did not want to see them.

The Complainant was informed to leave the premises immediately and to return any company property that she may have had on her or in her possession.

It is the Complainant's further assertion that her employment with the Respondent company was confirmed as when she checked with Revenue.ie it stated that her employment with the Respondent had ceased on the 20th of May 2024. On the date of the dismissal, the Respondent was fully aware of the woman's pregnancy related illness.

The dismissal of the Complainant on 20th of May 2024 was unlawful.

The failure to adequately investigate the medical issues raised is sufficient prima facie evidence of dismissal on the grounds of pregnancy and related matters.

The Unfair Dismissals Act at Section 6 provides as follows;

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

 the employee 's pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or anymatters connected therewith

The effect of these sections of the Act is to identify a dismissal which relates wholly or mainly to a person's pregnancy as unfair and to afford the protection of the Act to a person alleging dismissal for reasons associated with pregnancy notwithstanding that the person might, at the date of dismissal, have less than the twelve months' service required by the Act at Section 2(1 )(a). The Complainant in the within matter had less than twelve months' service at the date of her dismissal but falls within the protection afforded by the Act at Section 6(2A).

Preliminary Points

1   Incorrect Respondent

The incorrect Respondent has been submitted to WRC. The correct legal entity is “Lidl Ireland GmbH” which would have been known to the Complainant, who has legal representation (listed at the time the Complaint form was submitted).

The Respondent refers to the WRC Procedures in the Adjudication and Investigation of All Employment and Equality Complaints and Disputes ; specifically section 1 –

“The Complaint Form should be carefully filled out, correctly completing all relevant sections including the correct name and address of the employer/respondent. It is vital to ensure that the correct legal name of the employer/respondent is entered on the Complaint Form.”

As the incorrect (wrong) Respondent has been listed, the case cannot proceed and must be dismissed.

2  Fact of Dismissal is disputed.

The Complainant is currently an actively employee of the business – fact of dismissal is disputed

Substantive Case

Timeline to Claim

20 May 2024 – the Complainant had an informal meeting on her return to work from sickness absence with Mr. Nick Wright, Deputy Store Manager, about her continued and intermittent absence from duties and failure to follow absence reporting procedure. It is in this meeting the Complainant is suggesting she was dismissed (which is denied)

27 May 2024 – the Complainant contacted HRS (HR Services), Ms. Imelda Balfe  as she felt she was dismissed (per above). The HR Services Administrator looked into the matter and assured her no dismissal had taken place. The Complainant seemed to have accepted that.

30 May 2024 – the Complainant attended a meeting with her SOM and the Store Manager in her Store – this meeting was scheduled in response to her call to HRS. She was in fact reassured of her continued role in the store, and she was provided with the EAP service available to all employees. The meeting addressed the disclosure by the Complainant to management of a recent miscarriage. Her area manager offered her time off to recover and an opportunity to reduce her hours if she wished. She responded positively and said she would revert with her planned return to work date. In this meeting she was also reminded of the importance of following the absence reporting procedure and maintaining contact with the business.

6 June – the Complainant whatsapped the Store Manager indicating she would call into the store the following day.

14 June – the Complainant sent a WhatsApp to the Store Manager indicating she will call him soon about her return to work. She went on to state she is “thinking of returning back to work in July the start of July”. Liam replied “perfect I’m off till Sunday but I’ll get looking at roster then and get back to ya Monday to see what we can sort out for you… enjoy your weekend”

Friday 28 June – the Complainant text her SOM to inform her she would not be back to work as planned. On Monday –she texted that she had a medical certificate.

Monday 22 July – the Complainant wrote to the Store Manager to apologise for her failure to maintain contact and “I will definitely come back the Monday week of the 12th August”

7 July 2024 – decision made to investigate the Complainant for unauthorised absence.

10 July 2024 – letter issued to the Complainant indicating she is considered on unauthorised absence and to contact the Store Manager as a matter of urgency.

23 July 2024 – an invite to investigation meeting letter was issued; the allegation was unauthorised absence.

25 July 2024 – the investigation meeting took place. It was held by a Store Manager from another Store. The Complainant was in attendance and participated with this formal hearing. The Complainant confirmed she understand the absence reporting procedure. When asked why she had not uploaded medical certificates to the employee app, she claimed she was unable to log in as it was loading in German. When asked to open the app for the investigator; she was able to do so saying ; “oh its let me log in just now”.

1 August 2021 – correspondence issued to the Complainant requesting her confirm the accuracy of the meeting minutes. The Complainant replied by e-mail same day confirming same.

12 August 2024 – the investigation report was issued to the Complainant, upholding the allegation and referring to formal disciplinary procedure.

21 August 2024 – an invite to formal disciplinary hearing was issued to the Complainant.

24 August 2024 – the Complainant requested annual leave via the employee app. She requested 19 September 2024 to 24 September as annual leave (four days).

27 August 2024 – the Complainant failed to attend the disciplinary hearing

28 August 2024 – the Complainant was invited to a re-scheduled disciplinary hearing and failed to attend. As the correspondence had indicated it would be held in her absence if there was no appearance; this did occur.

29 August 2024 – the Complainant wrote responding to HR Services indicating she is upset how she is being treated by the business; and adding “I find it impossible to go back to work there”.

29 August 2024 – the Complainant submitted her claim for unfair dismissal to the WRC.

23 September 2024 – the Complainant was issued a verbal warning by Ms. Kate Bohan in respect of unauthorised absence.

9 October 2024 – the Respondent wrote to the Complainant indicating she was, as we consider, still an employee and has not been dismissed. Ms. Bohan asked the Complainant to contact her by phone urgently to discuss same; requesting same by Monday 14 October. There was no contact made.

22 October 2024 – The Complainants solicitors wrote to Ms. Bohan asking she not correspond directly with their client further and instead issue correspondence to them directly.

The fact of dismissal is in dispute. It is the Respondent position that the Complainant is still employed by the business.

The Deputy Store Manager, Mr. Nick Wright, vehemently denies dismissing the Complainant on 20 or indeed 21 May. There is no evidence to support such a wild contention. Mr. Wright would not have authority to dismiss people on impulse either (notwithstanding the fact he did not do same)

The Respondent’s position is that the Complainant is on unauthorised absence since 21 May. Correspondence has been issuing from the Respondent in respect of this (since 1 July). In fact, the Complainant had attended an investigation meeting with a Store Manager on 25 July (over one month after she claims to have been dismissed). She has received a verbal warning for same. These are all consistent with employment status and an understanding of this by the Complainant.

The Complainant has been in correspondence by text to her Store Manager, Mr. Liam Mannion indicating her proposed return to work dates (14 June, 22 July). These also post-date the date she claims to have been dismissed.

All these actions of the Complainant imply a continued employment relationship and understanding of the Complainant of same.

It appears the Complainant did not like to be investigated and forwarded to disciplinary; her WRC Complaint was submitted on the date she received the re-scheduled disciplinary hearing invite.

Preliminaryissues –

Correct legal identity of respondent

At the hearing the respondent accepted the change in title to Lidl Ireland GMBH.

Fact of Dismissal is disputed

This is dealt with in the substantive case

Substantive case.

The complainant claims she was actually dismissed. The respondent gave evidence that no dismissal had taken place.  As in a constructive dismissal case therefore, the burden of proof in the first instance is on the complainant to show that a dismissal took place.

Section 2(1) of the Unfair Dismissals Act defines a dismissal as including:

“The termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so …”.

Where constructive dismissal is alleged the burden is on the complainant to show that she or he was justified in deciding that the actions of the respondent constituted a dismissal.

There are two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second or “reasonableness” test applies where the employees asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

The contract test was described by Lord Denning M.R. in Western Excavating (ECC) Ltd v Sharp [1978] I.R.L.R. 332 as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”.

This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed.

In the current case there is directly contradictory evidence given by the complainant and the respondent regarding the purported dismissal.  Therefore, I need to look at any supporting evidence which might be persuasive.  Mr Wright, the Depurty Store Manager, while denying he ever dismissed the complainant,  said that any discussion that took place regarding her miscarriage was on 8th May, not 20th May.  The latter is the date that the complainant emphasised was the date on which the discussion took place and that she was dismissed.  She stated that she was not in on 8th May.  Post hearing the respondent provided electronic evidence that the complainant attended on 8th May, from 10.59 a.m. until 15.42 p.m.  Her shift was from 11am until 3.pm.  Therefore she remained on the premises after her shift for 42 minutes which supports the evidence given by the respondent that such discussions as had taken place were on that date.  Additionally, electronic evidence was provided to show that the complainant attended on 20th May for a total of 6 minutes.  Again, this supports the respondent’s contention that there was only a very short chat during which the respondent informed the complainant that he had not known she was coming in and that he had cover in place and that therefore she was not required that date.   The complainant’s actions subsequent to the 20th  May were indicative of someone who clearly thought themselves to be still an employee. She clarified her employment status on 27th May, she participated in an investigation regarding her absenteeism, she gave various return to work dates to the respondent and, she booked annual leave for the following September.

There was considerable confusion in the evidence given by the complainant. Ms Balfe, HR representative, gave evidence that when contacted by the complainant on 27th May she clarified to her that she had not been dismissed.  The complainant stated that she did not understand the respondent’s position as articulated by the HR representative in which it was clarified that she had not been dismissed.  She also stated that she did not understand the purpose of the investigation into her absenteeism, notwithstanding that she participated in that investigation.  Her behaviour subsequent to 20th May, was not consistent with someone who believed that they had been dismissed. Certainly, her behaviour would have justified the respondent in thinking that she had accepted their reassurance that she had not been dismissed.  The complainant’s  evidence of confusion post 20th May, together with the evidence that the interaction which took place on that date was significantly briefer time wise than she believed, leads me to conclude that she may also have been confused as to what took place on that date.  Specifically, that she had been dismissed.  She sought clarification from HR subsequently and was told clearly that she had not been dismissed.

In all of the circumstances the complainant has not discharged the burden of proof showing that she was dismissed on 20th May and therefore, she was not unfairly dismissed.

The complainant was not unfairly dismissed.