Complainant

Respondent

Parties

Mark  Brennan

Marks & Spencer Ireland Limited

Complainant

Respondent

Representatives

Mr Eoin Coates of Mandate Trade Union

Ms Judy McNamara 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-00070004-001

14/03/2025

The issue in contention was the alleged Unfair Dismissal of a Sales Advisor by a multi-National Retail Chain.

The employment began on the 1st August 2014 and ended on the 6th of February 2025.

The rate of pay was stated by the Complainant to have been €1,679 per month for a 19-hour week.

The Complainant was Represented by Mr Coates of Mandate. A detailed Oral testimony was given supported by a comprehensive Written Submission.

In essence the Complainant’s case was that he had been disproportionately sanctioned by Dismissal for an offence related to a Staff Discount Card.

The Discount card had been, unbeknownst to him, copied by his then domestic Partner and made available to a wide circle of her family/acquaintances. As soon as the Company Internal monitoring systems became aware of the abuse (Card was being used multiple times, almost simultaneously, at Company Branches across Ireland and the UK) he had immediately stopped the Partner using the card. He had volunteered to reimburse the Company for any financial losses (some €464.39) they may have incurred.

He had been a loyal and most conscientious employee for over 8 years with no blemishes on his employment record.

 Mr Coates examined the Company Colleague Discount Policy in detail and pointed out what he felt were anomalies and lack of clarification particularly on what “Abuse” of the card actually meant. The Policy referred to “Deliberate or carelessly misuse” by an Employee. None of this happened as the Complainant was completely unaware of the abuse until it was brought to his attention by the Company oversight authorities. The Company Investigation Report was seriously flawed. In particular Mr Coates argued, the abuse was allowed to continue, without informing the Complainant “build a case against him”.

The Complainant had at all times been completely cooperative and honestly upfront with the Company. He had been a loyal employee and often commended for the quality of his work.

It had to be remembered that it was his ex-partner that had abused the Discount Policy, and he could only be disciplined for being careless with his Tablet Computer. A Company that made employees liable for the actions of their Partners would certainly be expanding the range of Labour Law. Dismissal, the “nuclear option” was completely disproportionate especially when there were a range of serious but lesser sanctions available.

Ms McNamara of IBEC, for the Respondent, rigorously cross examined both the Complainant and Mr Coates of Mandate.

The Respondent was represented bY Ms McNamara of IBEC supported by a number of Senior Managers. Detailed Oral Testimony was given supported by a comprehensive Written Submission.

The facts of the case were straightforward. The Internal Audit/Monitoring Section had, in the course of their normal oversight procedures, identified serious anomalies in the Discount Card account of the Complainant. It had to be noted that physical cards are no longer used but a mobile phone App.

The Card had been used on 73 separate occasions between the 31st October 2024 to the 17th December 204 at multiple geographical locations, quite often almost simultaneously. Records showed that the Complainant’s Credit/Charge record indicted that only one transaction could be linked to him personally.

An Investigation was carried out on the 8th January 2025 by Mr S, Store Manager. Mr Caffrey of Mandate represented the Complainant. This proceed to a Disciplinary meeting on the 17th January 2025 which was postponed until the 4th February 2025 for operational/availability reasons. Ms CA, Store Manager, decided after consideration on Dismissal. Mr Caffrey, Mandate, lodged a detailed Appeal which was heard by Ms CB, a Senior Level Store Manager.

Ms CB gave a detailed Oral Testimony which was vigorously cross examined by Mr Coates. Ms CB, a Company veteran of long service, explained that she had given very detailed consideration to all the facts of the case but had regrettably felt that the bond of trust had been irrevocably broken.

The Discount Card policy was very extensively published to all staff. There could be no doubt that the Complainant was completely familiar with the Terms including the Anti Abuse elements. It was a major Employee benefit and had to be vigorously safeguarded.  Regrettably Dismissal was the only option.

Ms McNamara cited a number of legal precedents -Looney & Co Ltd V Looney UD 843/1984 and Knox Hotel and Resort, UD 27/2004 to point out that the Adjudication Officer cannot “second guess” a properly conducted Employer process that leads to a Dismissal. In addition, once the “bond of trust” is broken an employer/employee relationship cannot survive.

3:1     The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines.

3:2        The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 11295: 

 “The employer ,not the tribunal is the proper person to conduct the investigation into alleged  misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated upon at length.

Accordingly in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “band of Reasonableness”.

The former Employment Appeals Tribunal usefully summarised its approach to dismissals for “conduct” and the question of “Reasonableness” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978.

The Tribunal applies the test of “reasonableness” to

1.       the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and,

2.       whether the procedures adopted were fair and reasonable and

3.       the reasonableness of the conclusion arrived at by the Respondent.

However, all cases rest on their own evidence and factual matrix, and these will now be examined.

3:3       Consideration of the Evidence - both Oral and Written.

Substantial bodies of documentary evidence were presented by both sides. Extensive Oral testimony was given in support.

In essence the basic facts of the case were not disputed. The internal Audit/Monitoring Unit of the Respondent had, through routine checks, become aware of substantial anomalies on the Complainant’s Staff Discount account. Between the 31st October 2024 and the 17th of December 2024 73 transactions had been recorded. It appeared that only one of these transactions could be linked to any form of Credit/Charge card belonging to the Complainant. The Audit Unit reported this to local management. An investigation was begun by Manager Mr S on the 8th January 2025. The Complainant was represented by Mr Caffrey of Mandate. The matter was referred to a Disciplinary Hearing on the 4th February 2025 conducted by Ms CA, Store Manager. Dismissal was the outcome. This was appealed to Ms CB, Senior store Manger on the 26th February 2025. Agan Mr Caffrey was the Mandate Representative. On the 7th March a very detailed Appeal Outcome letter was issued by Ms CB. The Appeal was rejected.

The questions for the Adjudicator were threefold.

Firstly, had Natural Justice as per SI 146 Statutory Code of Practice on Grievance and Disciplinary Procedures been observed in all procedures. The answer was clearly in the affirmative. The Company had excellent HR Procedures operated by experienced HR staff.

Secondly was a Dismissal warranted?

The Oral evidence from the Managers especially Ms CB, the Appeals Manager, was very telling. She was a long-standing Manager (20+ years) and clearly knew the business inside out. The Staff Discount Scheme is a major benefit across all Stores in Ireland and the UK. Some 70,000 staff are eligible. It is supported by very detailed Information Documents and Staff briefings. The question of zero tolerance of any form of Abuse is clearly highlighted in the Information Packs. There was no doubt that the Complainant was aware of these policies.  Like Ms CA, the Disciplinary Manager, Ms CB was an impressive witness obviously loyal to the Organisation. It was clear that they regarded working for the Company as almost an honour. In this light Abuse of the Staff Discount Scheme could only be regarded by them in almost apocalyptic terms. None the less in her oral testimony Ms CB indicted that the Appeal finding to uphold the Dismissal was not an easily taken decision. Her letter of the 7th March 2025 indicted a serious process of careful consideration.

On the basis of all legal precedent and cautions quoted above regarding the serious error of an Adjudicator second guessing a reasonable Employer the view has to be that the Company actions were, at first glance, justified.

Thirdly was a Dismissal, the “Nuclear option” warranted?

Mr Coates for Mandate made the argument that the Complainant had fully cooperated with all the procedures, was sincerely apologetic and had offered, from the first investigation, to immediately refund the Company any financial losses.

A more interesting point was made by Mr Coates for Mandate that the Complainant had not actually committed any breaches of the Discount Policy, per say, save for being careless with the Tablet Computer that had allowed his then Partner to copy the App. The Complainant was under Oath and swore that he was completely unaware that his Partner was giving the discount permission to her circle of acquaintances/family. There was a question of personal Trust between the Couple that had been seriously undermined.

Mr Coates for Mandate also made the point that an employee could not be made responsible for the irresponsible actions of his Partner. If this argument was accepted Employment Law would be setting a major precedent.

The Complainant admitted he had been careless with the Tablet Computer that had allowed his Partner IT access. However, they were a couple living as man and wife with children. Carelessness in this context was not a Disciplinary Breach that warranted losing his job particularly when other serious sanctions could have been applied.

The Adjudicator reviewed the Company Disciplinary code – presented in evidence by Ms McNamara the Company Representative. The code is a first-class product from a very reputable Company. The question of what constituted Gross Misconduct was interesting – the usual suspects were listed, Violence, Theft, Fraud, bringing the Company Name into disrepute etc.

To an outside observer, such as the Adjudicator, it seemed excessive to classify as a Dismissible offence, the act oof allowing through carelessness, your domestic partner, to seriously misuse, unknown to the Offender, a staff Discount Scheme to value of some €4460.

The Appeals Manager, Ms CB, a very persuasive and most competent witness, emphasised the absolute need to protect the integrity of the Discount Scheme. 

The Adjudication view, having considered all the evidence both Written and Oral came to the view that there were other very serious sanctions such as a Final Written warning that could have been applied to similar effect in safeguarding the Discount Policy.

Mr Justic Flood quoted above is worth repeating at point 5 of his quotation.

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.

Accordingly, the view is that an Unfair Dismissal took place on the grounds of Proportionality. Dismissal was an excessive penalty.

However, it has to be noted that the Complainant contributed significantly by his carelessness to the dismissal. This will be reflected in the redress awarded.

Unfair Dismissal, Proportionately of Decision.