The Irish arm of retail giant Tesco dismissed a Deputy Manager for taking three cans of Red Bull with a combined value of €9.45 and not paying for them.
Employed with the retailer for over 13 years, John Herd sued for unfair dismissal against Tesco at the Workplace Relations Commission (WRC).
In a decision published today, WRC Adjudicator Jim Dolan found that Mr Herd's dismissal was not unfair and his claim under the Unfair Dismissals Act is not well founded.
Mr Herd took the individual €3.15 cans of Red Bull on three separate occasions without paying for them.
In his ruling, Mr Dolan stated that he was of the view that as a result of Mr Herd holding a position of serious responsibility with Tesco Ireland "that the bond of trust has been irrevocably broken between the parties as a result of these incidents".
Mr Dolan stated that Mr Herd "should have been under no illusion from his position and training with the company that the issues that led to his dismissal would amount to gross misconduct".
He said that Mr Herd "took an energy drink and failed to pay for this drink.
"This did not happen on one occasion but actually happened on three separate occasions within a 15 day period - the 3rd, 8th and 18th of October 2021," he added.
Mr Herd started work with Tesco Ireland in August 2008 until his dismissal on February 20, 2022.
At the date of dismissal, Mr Herd was employed in Tesco's Crumlin Express store as a Deputy Manager on an annual salary of €33,900.
In September 2021, Tesco's Target system reported unusual activity in the Crumlin store.
Target is a software programme that is designed to manage and reduce shrink or loss and integrates CCTV and existing security to identify potential risks and provide image-based evidence to enhance the level of protection in stores.
As a result, it was alleged that Mr Herd took a can of Red Bull and consumed it without having paid for it on three separate occasions.
Mr Herd was informed of the allegations and was suspended on full pay pending an investigation and invited to attend an investigation meeting on November 4, 2021.
At the meeting, Mr Herd was given the opportunity to explain what had happened.
During that meeting, he said he could not remember the incidents and was not aware that he had not paid for the items and that this was due to distraction caused by a personal issue.
Mr Herd offered to pay for the three items and at a second investigation meeting.
He claimed that his actions were in no way an attempt to defraud or steal from the company, that he had 13 years' service and had never had an issue of this type, and that he was not in the right state of mind having been extremely distracted.
Mr Herd told Tesco that he was not sleeping well, was very stressed at home, and would pay back the €9.45
Tesco argued that Mr Herd's actions amounted to gross misconduct whereby he was in breach of the company's honesty policy on three separate occasions.
Tesco contended that actions of Mr Herd destroyed the company’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal.
Representing himself at the WRC, Mr Herd told the hearing that he had been unfairly dismissed from his job over incidents that totalled less than €10.
He stated that in each case he had forgotten to pay for an energy drink before drinking it and on each occasion the store was not open.
Mr Herd stated that at the time of these incidents he was going through a very tough time in his personal life outside work which was causing him to lose sleep.
He also stated that he was on the verge of being made homeless and he was under severe stress and suffering from lack of sleep and that he had a lapse in memory and forgot to pay for the items.
In relation to his dismissal, Mr Herd felt that he has been unfairly treated when compared to another staff member who has been involved in multiple incidents and has only been issued with warnings if even that.
Mr Herd contended that there was favouritism going on and he did not know why he is being singled out.
He alleged that the actions of his colleagues are being swept under the rug while he has to face the full force of the disciplinary process for an arguably less severe infraction.
Reporting by Gordon Deegan
