A Tesco night manager who said he was subjected to an “aggressive interrogation” lasting more than five hours over “nebulous allegations” about breaches of checkout procedures has been awarded €23,000 for unfair dismissal.
In unfair dismissal proceedings against the supermarket, the Workplace Relations Commission heard that Brian Scully admitted serving himself at the till in breach of company policy – but said he forgot to pay for a pack of cigarettes.
Tesco submitted that Mr Scully accepted that taking the cigarettes amounted to “theft” at a disciplinary hearing.
It denied Mr Scully’s complaint the Unfair Dismissals Act 1977 and said the manager had been legally dismissed on foot of a finding of gross misconduct.
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Mr Scully’s legal team, however, said findings of fact against him at that point had been arrived at by a pre-judged and procedurally defective company investigation.
The tribunal heard Mr Scully had arrived for a night shift at the supermarket’s Portlaoise store, starting at 10pm on July 23rd, 2019, only to be told he was being suspended with pay, and was ordered to attend an investigation meeting the following afternoon.
The store’s general manager, identified only as “Mr A” in the decision, said the company’s loss prevention software, Target, identified “unusual activity” there which gave rise to the investigation.
Mr A said he had showed Mr Scully a series of receipts and asked him if he recalled the transaction.
“Invariably, [Mr Scully] did not recall the transaction and on one occasion replied: ‘no comment’,” Mr A said.
The general manager said that for each receipt he went on to show a “corresponding CCTV still” – after which Mr Scully admitted “serving himself or processing a refund for himself”.
Mr Scully told him he thought it was “permissible to serve himself with a witness present notwithstanding that CCTV clearly showed no witness… on some occasions”.
Mr A said the complainant was also asked about a pack of cigarettes he said Mr Scully had taken without paying for on the night of July 11th 2019.
“I remember taking the cigarettes from the machine with the intent of paying for them between 7am and 8am when my wages were in my account. However, with the business of getting the shop ready for 8am, I forgot to pay for them,” he was recorded as saying in minutes submitted in evidence.
Akin to ‘middle of night’
Mr Maguire put it to the general manager that requiring Mr Scully, as a night shift worker, to attend the investigation the day after his usual shift time was “akin to making him attend a meeting in the middle of the night”.
Mr A said he “should not have to investigate a senior manager for policy breaches” as this was “a big unforgiven” for the sector and that he hoped to get a “positive result” quickly and “get everyone back to their day jobs”.
“If I was wrong, I was wrong,” he added.
Roderick Maguire BL, appearing for the complainant, instructed by Bolger White Egan and Flanagan Solicitors, said his client had been given just 14 hours notice of the investigation into allegations of multiple breaches of company policies with “no dates given” and “no indication… of what the specific breaches were”.
He said the investigation had been an “aggressive interrogation” and “not impartial” – adding that it had taken place in a “windowless room with only a few short breaks”.
“The specific allegations were never explicitly put to the complainant at the meeting. The nebulous allegations were repeated at the outset and the complainant was asked a series of questions in relation to his actions. As the meeting progressed, it was clear from his responses that he was having increasing difficulty recalling certain matters at issue,” Mr Maguire told the tribunal.
He said the general manager “showed he had pre-judged matters” by stating in the investigation meeting that he “did not believe” the complainant had forgotten to pay for the cigarettes.
“This was a matter of the utmost seriousness… a senior manager in retail effectively facing an investigation into alleged theft, the outcome of which would have far-reaching consequences for his livelihood and reputation,” wrote adjudicating officer Aideen Collard.
If he had been given time to prepare, his answers might have been different and the disciplinary sanction reduced, she wrote.
Ms Collard added that Mr A had “adopted an interrogative approach” and “made his disbelief” known in regard to the cigarettes before making any findings – and that it was “most serious” that the complainant only had 14 hours notice, calling this “not adequate”.
“Any indication of pre-judgement will undermine confidence in a decision-making process,” Ms Collard wrote.
She added that references made during the process to an expired verbal warning to Mr Scully were “clearly of significance” and “may have influenced the decision to dismiss”.
She wrote that the process which led to Mr Scully’s dismissal was “both substantively and procedurally unfair” and upheld his complaint.
“I am satisfied that he contributed to a large degree to the circumstances giving rise to his dismissal and consequent losses,” she wrote, adding that Mr Scully had done “all that was possible” to mitigate his losses by finding new employment.
Ms Collard made an order for €23,363 against Tesco, a sum she wrote amounted to a quarter of the tribunal’s maximum jurisdiction in the case of 104 weeks’ pay.