Unfair Dismissal & Tesco – Tribunal overturn Rights Commisioner decision and orders re-engagement with demotion

The case of James White against the recommendation of the Rights commissioner in the case of Tesco Ireland Limited was published by the Employment Appeals Tribunal last week.BackgroundThe Respondent gave evidence that the Appellant was dismissed for a breach of the honesty policy in taking four cans of red bull during his shift without paying for it. The Appellant stated that he intended to pay for the drinks later but forgot to do so. When it was pointed out to him that he had taken then, the Appellant immediately offered to pay for them. The Appellant stated that the CCTV footage clearly showed that he had not attempted to conceal the red bull and that he honestly forgot to pay for them. The Appellant acknowledged that he was in breach of the Honesty Policy insofar as he did not pay for the Red Bull immediately but contended that this was not an act of dishonesty but rather it was an honest oversight and that the sanction of dismissal was too harsh.The Tribunal concluded by majority that the Appellant was unfairly dismissed however Mr J O’Neill dissenting stated that he concurred with the Rights Commissioner who examined the case in the first instance that “forgetting to pay” is not an adequate defence for breaching the honesty policy and that the explanation offered by the Appellant was unsatisfactory, lacks credibility and is unacceptable hence the dismissal was not unfairDeterminationIn finding by majority decision that the dismissal was unfair the Tribunal concluded:

1. The procedures adopted by the Respondent were inadequate given the serious accusation made against the appellant i.e. that he had no intention of paying for four packs of red bull. The fact that the Appellant was aware of the positioning of the CCTV cameras and made no attempt to avoid being captured on CCTV would lead a reasonable employer to conclude that he was not acting dishonestly when he removed the items for his own consumption.
2. The appeals officer did not visit the location of the CCTV cameras and did not seem familiar with the security system operating on the shop floor at the relevant time, and that a prudent and reasonable employer would not act in such a manner in the circumstances.
3. In cases where there are serious allegations made attracting serious consequences to ones reputation, career and prospects, it is essential and imperative that the procedures adopted in the investigative process be carried out with the utmost vigilance and care especially where the onus of proof lies on the party making such allegations.
4. The Tribunal is satisfied that a reasonable employer in the circumstances would conclude that the appellant having regard to his position in the respondent company was careless and neglectful and was a bad example to the workers in charge but not dishonest. The sanction of dismissal was disproportionate.

The Tribunal ordered that the Appellant be re-engaged in the position of an ordinary worker with the Respondent (i.e. that he be demoted from the position of Line Manager which he held, to the position or grade which he held before he was promoted) and such order to come into effect after 6 weeks from the date of issue of determination of Tribunal.