UDD2623

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00039154 (CA-00050560-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 27 February 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 21 April 2026.

The following is the Decision of the Court:-

DECISION:

1Background to the Appeal

 This is an appeal by Ms Quinn (the Complainant) against Adjudication Officer’s Decision ADJ-00039154 CA-00050560-001 given under the Unfair Dismissals Acts 1977 to 2015 (the Act’s) in a claim against her previous employer Tesco Ireland (the Respondent) that she was unfairly dismissed.  The Adjudication Officer held that her complaint was not well founded.

The complaint was lodged with the WRC on 10 May 2022, appealed to the Labour Court on 27 February 2024 and a hearing was held in Dublin on 21 April 2026.  The Complainant commenced work with the Respondent in October 2006 as a general assistant and was contracted to work 35 hours per week on an hourly rate of €13.49. The Complainant was dismissed for gross misconduct on 10 December 2021. Dismissal is not in dispute.

2 Summary of Respondents submission

The Complainant was involved in an incident in the store on 27 August 2021. The incident occurred while she was working on the front-end checkout serving a customer. The Complainant was scanning the customers shopping and the customer was packing.  An issue arose about a bar code on a large baguette. The Complainant asked the customer to go and get another baguette with a barcode to scan. The customer stated that this was said to her in an aggressive manner. The Customer had three small children with her and did not want to leave them and she explained this. She was informed that if she wanted the baguette she would have to get another one. The Complainant scanned the rest of the customers shopping and there were further exchanges between the Complainant and the customer. The customer asked to speak to a manager and a colleague advised her to go to the customer service desk.  Mr Murphy Store Manager attended to the customer and asked if she wanted to go home and that he would ring her later that day. At the time of this incident the Complainant was already on a final written warning which she had received some three months earlier under the heading conduct which brings the company’s good name into disrepute, and unacceptable behaviour which is a breach of the business conduct policy.

On the day of the incident a preliminary investigation meeting was held, and the Complainant was advised of the complaint. A colleague representative was also present.  Mr Brian Moran, the Investigation Officer deemed the incident required further investigation and placed the Complainant on paid suspension pending same. By letter of 3 September 2021, she was invited to attend an investigation meeting on 7 September 2021.  A copy of the Respondent’s Disciplinary Policy was included with the letter. The investigation meeting was rescheduled to 8 September 2021 by agreement. The Complainant was accompanied by a Union representative. Further investigation meetings took place with various persons who had witnessed the incident. A further meeting was held with the Complainant on 4 October 2021 where she explained that she would normally go and get the barcode for an item but would first ask the customers if they would like to go, because of the confusion on the day she did not go and get the barcode. In response to a question on the policy in respect of non-scanning products the Complainant stated that she did not think it was applicable in that case. She stated that she could not see her team leader or a manager from her till.

An investigation outcome meeting took place on 11 October 2021 which found the incident fell under the heading serious/gross misconduct and warranted moving into the disciplinary process.

On 13 October 2021, the Complainant was invited to attend a disciplinary hearing scheduled for 15 October 2021 and was advised that she could bring a Trade Union representative, what the allegation was, provided with a copy of the disciplinary policy and informed that the outcome could result in disciplinary action up to and including dismissal.  The meeting took place on 29 October 2021.  At the meeting the Complainant stated that one of the witnesses had not been interviewed so the meeting was adjourned to facilitate same. A further meeting took place on 12 November 2021 and the statement from the witness was discussed.

 On 10 December 2021 a disciplinary outcome meeting was held, and the Complainant was advised of the decision to dismiss and her right of appeal. The documents from the disciplinary process were sent to the Complainant by registered post on 16 December 2021. However, the letter of dismissal was omitted in error.  Once this came to light a copy of the letter was issued to her. The Complainant exercised her right to appeal the decision to terminate her employment and an appeal hearing was scheduled for 4 January 2022. The Complainant submitted the following grounds of appeal.

1. i) That the case against her had not been proven at the investigation or disciplinary stages.
2. ii) That the punishment was severe and unfair

iii) That the length of the process was excessive and

1. iv) That the Company’s procedure was not adhered to.

At the appeal hearing the Complainant was given the opportunity to go through what happened on the day of the incident and set out her grounds of appeal. An issue in respect of delay concerning the letter of dismissal was raised and a commitment was given to look into same.  A review of the length of process showed that that a number of adjournments sought by both parties, had occurred which contributed to the length of the process.

 An appeal outcome meeting was scheduled for the 21 January 2022. At that meeting the Complainant was advised of the decision to uphold the decision to dismiss, and she was given an appeal outcome letter setting out the decision and the reasons for same. In essence it was held that there were no procedural flaws with the process that had been followed, she was already on a final written warning for similar type behaviour, dismissal was an appropriate sanction and there were legitimate reasons for the length of the process including rescheduling meetings at her request. It was also held that the Respondent company had followed its own procedure and the decision to dismiss was upheld.

 Ms Sinik IBEC on behalf of the Respondent submitted that the decision to dismiss by the Respondent fell within the band of reasonableness and cited Looney & Co. Ltd v Looney UD 843/1984 and O’ Riordan v Great Southern Hotels UD1469-2003. They submitted that the actions of the Complainant which were considered serious gross misconduct, contributed fully to her dismissal and that the decision to dismiss was fair.

3 Witnesses for the Respondent

Mr Finbar Murphy

Mr Murphy confirmed that he was store Manager in Artane Castle for 31 years then he moved to Clearwater in June 2017 and was Store Manager at the time of the Complainant’s dismissal.

On the day in question, he was in his office and was asked to speak to a customer who was looking to talk to a manager. The customer who was very upset and had a small child in her arms described what happened at the checkout. It was his evidence that he told her to go home and that he would ring her in an hour. He then went and looked at the CCTV footage of the incident which he believed reflected what the customer had said about the Complainant flinging groceries down the belt and standing up and pointing at the covid protection screen at the checkout desk.  It was his evidence that the CCTV footage does not always match up to the customers complaint but in this case, he felt it did. He rang the customer and spoke to her. He then rang Mr Moran another manager, told him what had happened and asked him to deal with it. On the day in question there were two team leaders and a supervisor on the floor if a cashier needed assistance, they only had to press a button. The Complainant did not do that on the day.

Mr Murphy stated that the Complainant had previously received a final written warning and was placed on one week’s unpaid leave. When she returned to work after the period of unpaid leave, he spoke to her and asked what support she needed. He reminded her of the employee assistance programme, but she declined same. He facilitated her leave request and her request to have Tuesday nights off. It was agreed that she would move from the deli to the checkout. He felt the two incidents were not dissimilar, one was with a colleague and one was with a customer.

Under cross examination by the Complainants Union representative the witness confirmed that he did not check on the Complainant at the time of the incident. It was put to him that as store manager he had a duty of care to Ms Quinn. It was his evidence that he handed it over to another manager, Mr Moran and asked him to deal with it. It was put to him that in her evidence Ms Quinn will say that she did not agree to working as a cashier when she came back from her suspension. The witness did not accept this.

Ms Zara Counihan

Ms Counihan informed the Court that she is a Colleague Relations Partner and has worked for 20 years. Her role involves investigating cases of serious misconduct.  The witness stated that she was appointed by her line manager to investigate this case. She was supplied with the customers complaint, CCTV footage and notes of the preliminary meeting that had taken place with the Complainant on the day. She wrote to the Complainant and invited her to a meeting. She provided her with the complaint and the notes of the preliminary meeting and informed her she could bring a representative with her. She reviewed the CCTV footage and spoke to Mr Murphy and Ms Gaynor who was on a nearby checkout. The reason she did not interview Ms Tyrell was she did not believe she had witnessed the incident and did not deem her as relevant to the investigation.  The witness confirmed that the Complainant was provided with copies of all the witness statements, copy of letter of complaint and allowed access to CCTV footage.

Under cross examination it was put to the witness that on the day of the incident which occurred around 1.00 pm, the Complainant was not spoken to until 5.00pm. The witness stated that when you take account of the steps to be followed under the procedures, she did not consider this to be a long period of time. The witness confirmed that her findings were that the company name was brought into dispute.  In coming to that conclusion, she relied on the fact that the Complainant was pointing at a customer in an aggressive manner and she believed that could be damaging to the brand name. The witness confirmed that the Complainant had brought a colleague representative to the meeting and had not requested that she be allowed to cross examine the witnesses.

Mr Gary Redmond

Mr Redmond in his evidence to the Court stated that he was a Store Manager for 14 years and had received training in carrying out disciplinary investigations and carried out a number of same.  He confirmed he sent a letter inviting the complainant to a disciplinary hearing, she had asked for it to be rescheduled, and he had agreed to same. At the hearing she raised an issue in respect of an additional witness that had not been interviewed, he adjourned the process to interview that witness.  The Complainant was provided with the witness’s statement and the hearing was reconvened. He then issued an invite to an outcome meeting where she was informed of his decision that dismissal was the appropriate sanction. He noted that she had been offered EAP support but had declined same. In coming to the decision to dismiss he took into account the fact that she had a live final warning which had only been issued three months before the incident for similar aggressive behaviour.  He did not believe any sanction short of dismissal was appropriate in circumstances where the complaint against the Complainant had been upheld and she already had a live final written warning on her file for the same behaviour.

 At the meeting she was informed of the decision to dismiss and her right of appeal. The dismissal letter was left out of the correspondence that issued to her in error but once it was brought to his attention the error was rectified and the letter was sent to her 

In response to questions under cross examination the witness confirmed that he believed the Complainants actions on the day were in breach of company policies. He confirmed that it was not the role of the disciplinary hearing to re investigate the incident and he took account of the investigation report in coming to his decision to dismiss. He confirmed that the Complainant was accompanied by two representatives at the disciplinary hearing and he adjourned the hearing to speak to the additional witness that she had identified. He stated that he did not offer EAP services as they had been previously offered and declined. The witness confirmed that the Complainant had had not raised any issue in respect of cross examination of the witnesses or looking to face her accuser.

Mr Joe Thompson

Mr Thompson informed the Court that he was with the company for 31 years and was manager at the Clare Hall Store.  He was appointed as Appeals Manager. The Complainant submitted four grounds of appeal. She was invited to attend an appeals meeting which she did and was given the opportunity to provide any information that she thought would assist her case. In respect of the appeal ground of delay, he stated that when he looked into this the delay arose because of annual leave and two postponement requests by the Complainant. He investigated the fact that she did not get the letter of dismissal and was satisfied that it was an error and was issued to her once the error came to light. She never raised the issue that she had not been provided with an opportunity to face her accuser.  It was his evidence that the procedures had been followed, the delay explained and that in circumstances where she was already on a final written warning for similar aggressive behaviour that dismissal was an appropriate sanction.

 In response to questions under cross examination the witness stated that the Complainant would have been brought through all the company policies at induction and she would have received the policies as part of her earlier final written warning. He accepted that the letter of dismissal did not mention previous final written warning. The witness confirmed that the Complainant had not raised as a ground of appeal that she was not allowed to cross examine the witnesses.

4 Summary of Complainants submission

 The Union on behalf of the Complainant submitted that she was suspended following a complaint from a customer about an incident on 27 August 2021. The Complainant was not afforded access to her accuser or to cross examine witnesses. It was their position that for the Complainant to have left her checkout to either secure a replacement barcode or locate a member of management in advance of completing the transaction and having signed out of her checkout, this would have resulted in disciplinary action which may include dismissal according to the Respondent’s Cash Register Operation procedure. There were a number of flaws with the process, witnesses were not interviewed by the investigator, she was not allowed face her accuser, or cross exam witnesses and initially no dismissal letter was issued to her.  The Complainant appealed the decision to dismiss on four grounds.

 The Union opened to the Court in support of their contention that fair procedures had not been followed the case of Gearon v Dunnes stores Limited UD367[1988] which held that the right to defend oneself is a fundamental right. The Union submitted that the Respondent had failed to consider an action short of dismissal and had not complied with the Code of Practice on Grievance and Disciplinary Procedures S.I.  No. 146 of 2000 by not allowing the Complainant to confront or question the witnesses.  The Union submitted that the failure to allow the Complainant to face her accuser or confront or question her accuser was a fatal flaw in the process and that the Complainant should be re-instated and awarded compensation.

5 Complainant’s evidence

The Complainant in her evidence to the Court stated that when she returned to work on the final written warning she could not go back to working in the deli area, so although she did not want to work on the tills, she took the Managers instruction and worked on the tills. It was her evidence that it was not totally agreed that she would work on the tills. Mr Murphy also told her at the time not to lose it down there.

The witness stated that she was alleged to have breached three policies but not provided with the policies. She did not believe the investigation was fair as she had to ask for one of the witnesses to be interviewed. It was her evidence that she had helped the customer as best as she could. She does not believe that she was listened to in the process and that they just relied on her last suspension. The witness confirmed that she believed that she did everything right.

Under cross examination from the IBEC representative the witness stated that she was looking for compensation for what she had lost. She confirmed that she started a new job 10 days after her dismissal. She believes that summary dismissal was too severe. The Complainant confirmed that she did not appeal the final written warning and that it was for the same breach of policies. She confirmed that she got advance notice of meetings, was represented, was given an opportunity to comment on witness statements, was given the CCTV and copy of customers complaint. She accepted the timelines were extended in part because she requested changes to the dates. She confirmed that she could not remember when in the internal process she had raised the issue that she should be able to cross examine the customer nor could she remember what the company response to that request was.

6 The applicable law

Section 6(1) of the Act states.

“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”.

6 Discussion and Decision

The issues for the Court to consider are, was the decision to dismiss within the band of reasonable responses and did the Respondent follow fair procedure in coming to this decision.

In the case of Allied Irish Banks plc v Purcell [2012] 23 EL 189 Linnane J stated as follows:

“The correct test is: Was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair.  But if a reasonable employer would 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 takes a different view”

[quoting Lord Denning MR in the UK Court of Appeal case of British Leyland UK Ltd v Swift]

It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the Court would have taken”

The Court notes that the issues in relation to the process raised by the Complainant in her appeal were addressed. The witness who was not interviewed in the initial investigation was subsequently interviewed and the disciplinary procedure paused to allow that happen. The Complainant was afforded an opportunity to comment on that witness statement and all witness’s statement. The dismissal letter was issued as soon as it came to light that it was not in the pack that issued.  The witnesses for the Respondent were clear in their recollection that the Complainant had not asked to face her accuser or to cross examine witnesses. The Complainant stated in her evidence that she did ask, she could not remember when or what the Respondent’s answer was. On this issue the Court prefers the evidence of the Respondent’s witnesses. The delay in the process was in part because of adjournments that the Complainant had sought and because someone was on annual leave. It is the Court’s view that none of these issues are of such a nature as to be fatal to the process.

Taking all of the foregoing into account the Court finds that the decision to dismiss falls within the band of reasonable responses, and therefore the decision to dismiss was not unfair.

The appeal fails. The decision of the Adjudication Officer is upheld.

 The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CC	______________________
17th June, 2026	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Ceola Cronin, Court Secretary.