Tesco Ireland Ltd (Represented by Ibec) v Ms Ann Maher (Represented by Sean Ormonde & Company Solicitors)

JurisdictionIreland
CourtLabour Court (Ireland)
Judgment Date06 Jan 2020
Judgment citation (vLex)[2020] 1 JIEC 0609
Docket NumberFULL RECOMMENDATION DETERMINATION NO.UDD201 ADJ-00009993 CA-00013043-001

Labour Court

FULL RECOMMENDATION

UD/19/166

DETERMINATION NO.UDD201

ADJ-00009993 CA-00013043-001

PARTIES:
Tesco Ireland Limited (Represented by Ibec)
and
Ms Ann Maher (Represented by Sean Ormonde & Co Solicitors)
DIVISION:

Chairman: Ms O'Donnell

Employer Member: Mr Marie

Worker Member: Ms Treacy

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

SUBJECT:
1

1. Appeal Of Adjudication Officer Decision No: ADJ-00009993 CA-00013043-001

BACKGROUND:
2

2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 22 June 2018 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 17 December 2019. The following is the Determination of the Court:-

DETERMINATION:
3

This is an appeal by Ann Maher (hereafter the Complainant) against an Adjudication Officer's Decision ADJ-00009993 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that she was unfairly constructively dismissed by her former employer, Tesco Ireland Ltd hereafter the (Respondent). The Adjudication officer dismissed the claim on the basis that the Complainant had resigned from her position of her own volition.

Background
4

The Complainant was employed by the Respondent as a General Assistant on the bakery counter from 21 st March 2008 until 3 rd April 2017 when her employment ended. On foot of an incident in the workplace the Respondent placed the Complainant on paid leave and commenced an investigation into the incident. Following the investigation meeting the Complainant tendered her resignation. It is her submission that she was constructively dismissed. It is the Respondent's submission that the Complainant tendered her resignation by letter during the investigation process. Dismissal is in dispute, so it is for the Complainant in the first instance to establish that a dismissal took place.

Complainant's case
5

On the 28 th March 2017 the Complainant's shift was due to finish at midday but the Store Manager asked her if she could continue to 2.00pm. It was her evidence to the Court that this happened on a regular basis as there were not enough staff. On the day in question she was supposed to collect her grandson from school, but it slipped her mind. At about 1.40pm her grandson appeared at the bakery counter and he looked very pale. He informed her that he had injured his arm and that he thought he might have broken it. The Complainant gave her grandson the keys to her car to wait for her. It was the Complainant's evidence that she did a quick tidy up of the bakery and left the store. The following day she attended for work as usual and just before she finished her shift, she was called to the office to see the HR People Manager. When she went to the office, she was asked by the Hr People Manager if she had taken a bottle of water and not paid for it the previous day. It was her evidence that she tried to explain what had happened, but he told her she was being suspended with pay.

6

On the 30 th of March 2017 she received a letter in the post inviting her to an investigation meeting and informing her that the Respondent was investigating an alleged breach of company policies. The letter states that the investigation could result in a disciplinary hearing which may result in disciplinary action up to and including dismissal. The letter also informed her that she was entitled to be accompanied by a shop steward or Trade Union Official.

7

The investigation meeting took place on the 3 rd of April 2017. It was the Complainant's evidence to the Court that Mr Power who was appointed to carry out the investigation took her step by step through the events on the day in question. He told her the time she had commenced work, the time she was seen taking the bottle of water, putting it into a white rubbish bag and not paying for it, the time she was seen going outside the store with a man and coming in to the store and the time she was seen finishing the bottle of water and throwing it in the bin.

8

It was the Complainant's evidence that she explained to Mr Power that she was in the bakery on her own and the issue about her grandson. She also told the Court that there was an audit that day and that she had to keep the bottle hidden as they cannot have anything out during the audit. It was never her intention not to pay for the water. On occasions in the past she had taken bottles of water and paid for them at the end of her shift. It was her evidence that she was aware of the...

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