UDD2326 - Labour Court TESCO IRELAND LIMITED (REPRESENTED BY IBEC) - AND - LINDA MAGUIRE (REPRESENTED BY GAVIN MACKAY MACKAY SOLICITORS)

• Jurisdiction: Ireland
• Judgment Date: 17 July 2023
• Court: Labour Court (Ireland)

FULL RECOMMENDATION; UD/22/129; ADJ-00027763 CA-00035625-002 DETERMINATION NO. UDD2326 ; SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 ; PARTIES: TESCO IRELAND LIMITED; (REPRESENTED BY IBEC); - AND -; LINDA MAGUIRE; (REPRESENTED BY GAVIN MACKAY MACKAY SOLICITORS); DIVISION: Chairman: Ms Connolly Employer Member: Mr O'Brien Worker Member: Mr Bell ; SUBJECT : 1. Appeal Of Adjudication Officer Decision No. ADJ-00027763 CA-00035625-002; BACKGROUND : 2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 04 November 2022 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 17 May 2023. The following is the Determination of the Court: DETERMINATION : This is an appeal by Linda Maguire (‘the Complainant’) of a decision of an Adjudication Officer (ADJ-00027763, dated 11 October 2022) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer held that the Complainant’s claim of unfair dismissal against her former employer Tesco Ireland Limited (“the Respondent”) was not well founded. The Court heard the appeal on 17 May 2023.; Position of the Respondent The Complainant was employed as a Customer Assistant from August 2008 until 25 October 2019 when her employment was terminated on the grounds of serious misconduct following a fair and impartial investigation, disciplinary, and appeals process. The findings of serious misconduct related to two matters: firstly, the Complainant removed a sum of money (€30) that belonged to a customer who had left it behind in the store with the intention of keeping it for her own personal gain, and, secondly, the Complainant took a scratch card without paying for it which resulted in a loss to the Company. The Respondent conducted a fair and impartial disciplinary process. The responses and explanations provided by the Complainant in response to the allegations put to her were not considered reasonable nor sufficient such as to mitigate the extreme seriousness of her actions. The Complainant’s responses differed from meeting to meeting, and were inconsistent and contradictory throughout the investigation, disciplinary, and appeals process. The Complainant’s actions represented a fundamental breakdown in trust between employer and employee. Misconduct goes to the root of the contract of employment. It undermines trust and confidence which is essential to the maintenance of the relationship between the employer and the employee. The Respondent had no alternative but to dismiss the Complainant for serious misconduct, as the bond of trust between had been severed. Her dismissal was not unfair as it resulted wholly from “ the conduct of the employee ”, in accordance with section 6(4)(b) of the Unfair Dismissals Act 1977-2015. The employer did what any reasonable employer would do. The Respondent referred the Court to the cases of Hestor v Dunnes Stores [1990] E.L.R. 12, Looney & Co. Ltd v Looney UD 843/1984, Moore v Knox Hotel and Resort Ltd UD 27/2004 , and Murray v Meath County Council UD 43/1978 in support if its position.; Position of the Complainant The Complainant was a good and conscientious employee of the Respondent since August 2008, with no formal warnings noted on her personnel file. The allegations made against the Complainant were that– (1) on 5 July 2019 the Complainant failed to follow the Respondent's Lost and Found process when a customer allegedly left €30 behind at a self-scan till. The monies were purportedly handed to the Complainant; (2) on 6 July 2019 the Complainant removed three notes from the back of a till, which was later found to be...