The Irish arm of retail giant Tesco has been ordered to pay a former night manager over €23,000 for unfair dismissal after he took a pack of cigarettes without paying.
At the Workplace Relations Commission (WRC), adjudicator, Aideen Collard ordered Tesco Ireland Ltd to pay Brian Scully €23,363 for his unfair dismissal on the ground of gross misconduct for breaches of the company purchase and honesty policies in September 2019.
Employed as a night manager at Tesco’s Portlaoise store, Mr Scully vehemently disputes the finding he breached the company’s honesty policy and argued his dismissal was disproportionate.
Mr Scully — who had 18 years service with Tesco — said he had forgotten to pay for a packet of cigarettes on July 11, 2019, which he had intended to pay for and it was not theft.
In her findings, Ms Collard said the process giving rise to Mr Scully’s dismissal “was both substantially and procedurally unfair, the substantial unfairness flowing from the procedural defects”.
Ms Collard said she accepted Mr Scully's position that the first Tesco investigation meeting "was conducted in an oppressive manner", lasting some five hours and 20 minutes without any indication of the length beforehand and not adjourning when it was quite clear Mr Scully had a difficulty at 5pm, regardless of whether for childcare or other reasons.
However, Ms Collard said in circumstances where it was undisputed that Mr Scully’s admitted actions led to this disciplinary process, “I am satisfied that he contributed to a large degree to the circumstances giving rise to his dismissal and consequent losses”.
Therefore, Ms Collard said she considered it just and equitable to award Mr Scully €23,363, representing 25% of the maximum 104 weeks' remuneration that may be granted.
Concerning the incident that gave rise to his dismissal, Mr Scully said owing to poor judgment on his part, he decided to take a packet of cigarettes and pay for them at 7am, when the store was due to open.
He was also due his monthly pay by 7am as it was a pay day. Mr Scully took a packet of cigarettes from the vending machine, smoked one and kept them on his person for the remainder of his shift.
When 7am arrived, he was under pressure to get the store ready for opening and leave by 8am to drop his partner to work and children to creche. He was so busy and tired he said he had “clean forgot” to pay and “100%” had intended to pay for them.
Mr Scully told Tesco Ireland when questioned on taking the cigarettes: “ I will never do it again. I can only explain my actions in that I was extremely tired and I made a poor judgment. I was fully committed in my mind to paying for the item after work but when the time came I was rushing out the door to drive my partner to work and kids to creche.
“And after that I had completely forgotten about the whole thing. There was a lot going on that week outside of work and I was extremely busy… My actions were completely out of character and will be 100% improved upon.”
Represented by Roderick Maguire BL, instructed by Bolger White Egan & Flanagan Solicitors, Mr Scully told the WRC hearing that after his dismissal he had experienced financial hardship and had been unable to pay his rent, utility and other bills.
Tesco Ireland told the hearing Mr Scully’s actions amounted to gross misconduct whereby he was in breach of the company purchase and honesty policies.
The company argued Mr Scully was properly dismissed by reason of his own actions.
A Tesco store manager who made the decision to dismiss Mr Scully following a disciplinary process, said “once an employee had taken something without paying for it, you could not trust that person to continue working for you”.