Complainant

Respondent

Parties

Mohammed  Kamruzzaman

Tesco Ireland Limited trading as Tesco Extra - Naas

Representatives

Zoe O'Sullivan of 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-00074748-001

22/08/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00074748-005

22/08/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00074748-006

22/08/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 9 of the Industrial Relations (Miscellaneous Provisions) Act 2004

CA-00074748-007

22/08/2025

Complaint seeking adjudication by the Workplace Relations Commission under Section 41 of the Workplace Relations Act

CA-00074748-008

22/08/2025

The Complainant was employed by the Respondent in their Naas branch from the 9th of February 2024 until he was dismissed on the 18th of July 2025.

The Respondent has a policy whereby certain baked goods and produce can be taken to the till and bought for free by their staff after 9pm. On the 7th of May 2025 Complainant finished his shift around 8.20pm and picked up some items. When he went to pay the cashier put the transaction as a “stored transaction” with the intention of finalising it after 9pm which meant the Complainant could leave for his bus and had the benefit of certain items as free before the 9pm window.

The Respondent’s loss prevention team picked this up a few weeks later and the Complainant was invited to a fact gathering meeting, following which he was suspended. An investigation was initiated following which the Complainant, the cashier and one other employee were dismissed.

The Complainant attended the hearing and gave evidence under affirmation. He sought to rely mostly on the narrative in his complaint form.

He worked for the Respondent honestly. This was an unfortunate lapse on his part which he apologises for. He admitted and apologised for his actions from the outset. These were ultimately items that would be going in the bin and the practice of taking some items after 8pm was more widespread than the Respondent acknowledges.

As such he does not think it reasonable to consider his actions on the same level of theft and submits the outcome of dismissal was disproportionate. He submits a warning would be a more reasonable outcome. On a human level, dismissal for this offence was wrong.  

The Complainant submits that the Respondent’s process was unfair. He should have been referred to a trade union by the Respondent and he should not have been invited into a fact gathering meeting unprepared and found that experience extremely difficult and unfair.

He did not appeal the decision because he was aware one of his colleagues did so and there was no change to the outcome.

Ms Zoe O’Sullivan the Respondent’s IBEC Rep made oral and written submissions on behalf of the Respondent. She submits that the Respondent conducted a fair process which resulted in dismissal. The issue which led to dismissal, theft, was well within the “band of reasonableness” outlined in Bank of Ireland v James Reilly (2015) IEHC 241.

Ms Deborah Bergin was an Employee Relations official who conducted the fact finding investigation and gave evidence under affirmation.

Ms Bergin was referred the loss prevention report and the minutes of the fact gathering meeting with the Complainant and from there drafted a specific allegation for the purposes of the investigation. This was that the Complainant had breached the Respondent’s Colleague Purchase policy, Colleague Honesty policy, Colleague shop process and the Respondent’s disciplinary policy which specifically listed theft, including stealing by deception.  The Complainant was sent everything and was given an opportunity to bring a representative to the investigation meeting which he declined. If he opted to bring a Union official to the meeting he would have been facilitated but it was a matter for him to organise.

The Complainant accepted he had left with the items as a stored transaction and did not pay for them. He was showed the cctv footage and apologised. The Complainant was one of three employees investigated by Ms Bergin and all were dismissed. Ms Bergin was not aware of any wider cohort of employees being involved.

Mr Cian O’Sullivan gave evidence under affirmation. He is the Manager overseeing the store location and a wider region and was tasked with holding the disciplinary hearing following the receipt of the investigation report from Ms Bergin. He invited to the Complainant to the hearing and gave him the opportunity to be represented, which he did not avail of.

The Complainant accepted what he had done. Though he had apologised Mr O’Sullivan does not believe there can be a second chance for theft. He has always dismissed employees caught engaging in taking property in whatever form. The Respondent has a very low tolerance for such behaviour.

Mr O’Sullivan received the initial report from loss prevention and sent it on to one of his Deputy Managers to handle. The Deputy Manager conducted the initial fact gathering exercise, interviewed the Complainant and decided to suspend him. Mr O’Sullivan was not part of that process and generally Deputy Managers are skilled and experienced enough to handle those steps without guidance.  

Unfair Dismissals Act (“UDA”)

Once an employee has established that they have the 12 months’ service and that they have been dismissed, the burden will be on the employer to show that there were substantial grounds justifying the dismissal.

Section 6(4) outlines that the conduct of the employee is a lawful reason to dismiss an employee.

Section 6(7) of the UDA provides an overriding obligation on the employer to have acted reasonably in relation to the dismissal. This duty to act reasonably does not allow an Adjudication Officer to substitute their own judgement for that of the employer. Instead, I must decide whether the decision to dismiss, at the time it was made, was within the range of reasonable responses of a reasonable employer. This position is outlined in more detail in Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241 (“Reilly”).

The Facts

Written minutes show that on the 4th of June 2025 the Complainant was called to a preliminary fact gathering meeting by the store’s deputy manager. He was informed that there was a serious allegation that he had colluded with other employees to take items from the store without paying and this had been done by way of appearing to check out items and leave. However, the transaction in question had been stored by the cashier and then processed after 9pm when those items would become free. He was informed that this allegation would be considered serious misconduct and that dismissal was a potential outcome if the allegation was upheld. The Complainant was advised he could have someone accompany him for the rest of the meeting but he declined. The Complainant immediately accepted the allegation stating that he believed it was okay, a previous team leader had done it and it had continued as a practice. He apologised and expressed shame for his actions. The Complainant was suspended with pay.

The Complainant attended a disciplinary investigation meeting with Ms Bergin on the 17th of June.  He was invited to this meeting by way of letter which notified the Complainant of the allegation, the possibility of his dismissal and his right to bring a union representative. Despite this he attended alone and the minutes indicate he was happy to proceed without representation. The Complainant explained that his colleague on the till had pointed out that the baked goods were available for free in the canteen which is why he felt it was okay taking them from the store as a stored transaction. He apologised profusely and asked to keep his job. He accepted he had been trained on the policy regarding when items became free to take.

Ms Bergin issued an investigation report with findings that the Complainant had breached the Respondent’s policies and that his actions fell under the definition of serious misconduct as outlined in the Respondent’s disciplinary policy.

The Complainant was then brought to a disciplinary meeting on the 3rd of July with Mr O’Sullivan as chair and decision maker. The Complainant was again notified of his right to representation and the possibility that he might be dismissed. In the meeting he was provided with an opportunity to respond to the investigation report and he accepted its contents. On the 18th of July the Complainant attended a disciplinary outcome meeting where he was informed that he was being dismissed and Mr O’Sullivan read out his disciplinary outcome report. In this he stated that the Complainant’s actions broke the bond of trust which the employment relationship relied on. 

The Complainant was offered the right to appeal his dismissal but opted not to. His evidence was that he was aware that his colleagues’ appeals had been rejected and as such he knew what the outcome would be.

Conclusions

The items concerned were of low value and would have been free to the Complainant about 40 minutes after his having taken them. Perhaps more importantly the Complainant admitted to and apologised for his actions.  It is often a feature of dismissal related disputes, that when an employee fails to address their wrongdoing, this can justify the employer deciding to dismiss them for misconduct which would normally fall short of dismissal. It follows that when an employee does accept and take responsibility for their misconduct it can bring dismissal outside the band of reasonable responses available to the employer.

Unfortunately, I do not believe such a conclusion would be in line with the act in this case. The Complainant’s conduct was considered theft by the Respondent. As he took goods without paying for them it was reasonably open to the Respondent to define his misconduct in those terms. Mr Cian O’Sullivan gave convincing evidence of a consistent approach to any type of theft, in that in his experience theft had always resulted in dismissal. The Complainant’s colleagues, who were also found to be engaged in circumventing the 9pm time cut off for a good becoming free, were also dismissed. The Respondent’s actions point to a strict and consistent approach in treating even minor theft as a gross misconduct warranting dismissal. Such a policy is within the band of reasonableness. For me to conclude otherwise would, in my view, cross into my substituting the Respondent’s judgement for my own.

In the hearing the Complainant did raise allegations that this practice was more widespread but he has failed to the establish that this was the case or that it was known to the Respondent. He did raise an allegation in the course of the investigation in relation to a former team leader but he also accepted he knew that his actions were not in line with the Company’s policy. He accepted the investigation outcome report before he was dismissed.

The Complainant has also raised some arguments about the Respondent’s process but I do not accept that these points support a finding of unfair dismissal. He was first asked to respond to the allegation in a preliminary fact gathering exercise for which he had no notice. This fact gathering exercise, carried out by the deputy store manager, did not make any findings and was limited to recording the Complainant’s response to the allegation, as such there was no right to fair procedure. Even in that context the Complainant was given warning that the allegation was serious and could result in his dismissal before he was asked to respond. He was also offered to have someone attend the meeting with him. The deputy store manager had no involvement in the investigation and disciplinary process that followed and only made the decision in relation to the Complainant’s paid suspension.   

The Complainant has argued that he should have been encouraged to involve a trade union. The Respondent repeatedly put the Complainant on notice of this right to have union representation. The Company was clear that dismissal was a potential outcome of the process from the outset and throughout the correspondence. The Respondent fulfilled its obligations and it was a matter for the Complainant to arrange trade union representation if he wanted to avail of it.

For the reasons set out above I dismiss Complainant’s claim CA-00074748-001.