Tesco ordered to rehire former worker who was fired for calling his manager 'useless'

Seán McCárthaigh

Supermarket group Tesco has been ordered to re-hire a warehouse operative who was fired for calling his line manager “useless.”

The Workplace Relations Commission ruled that the employee, Cathal Hussey, had been unfairly dismissed by Tesco Ireland Limited after it sacked him for gross misconduct.

Although the investigation and disciplinary process used by the company to reach its decision was deemed to be procedurally fair, the WRC found that the sanction of dismissal was disproportionate.

Trade union representative, Vivian Cullen of SIPTU for Mr Hussey, said the investigation into the conduct of the complainant, who had worked for Tesco for over 17 years before his dismissal, was “a hatchet job.”

Mr Cullen claimed Mr Hussey had legitimate grievances which were being ignored by management, which had led him to accuse his manager of being useless in a 12-page document submitted at a monthly meeting, which raised multiple concerns.

He argued that the situation was a source of much frustration for Mr Hussey.

The WRC heard that an investigation into his conduct arose from a grievance raised by his manager, Martynas Bajarunas, that he was being bullied and harassed by the complainant.

Mr Cullen claimed Mr Hussey was removed from the work roster after he submitted a medical certificate that he was unable to engage with the investigation process due to stress, but that he was fit to attend work.

He was subsequently informed that he had breached the company’s bullying and harassment policy.

Mr Cullen claimed it resulted in a “new and damning narrative” being manufactured, which resulted in the allegation of serious misconduct against Mr Hussey becoming one of gross misconduct.

The WRC heard that after Mr Hussey appealed the original decision to issue him with a final written warning, the sanction was overturned to one of summary dismissal.

Mr Cullen accused Tesco of a cynical attempt to silence a genuine grievance by a worker and claimed the concept of bullying was being weaponised against the warehouse worker.

He claimed the decision to dismiss him was “punitive, capricious and disproportionate” and “a crude exhibition of power” to control workers without question or challenge.

Mr Cullen said, “The emperor does not like being told that he isn’t wearing any clothes.”

He said the sanction to dismiss the complainant was disproportionate and unwarranted.

Mr Hussey declined to engage with a two-day hearing of the case at the WRC and did not give evidence.

Representatives for Tesco told the WRC that the investigation process has gone ahead in Mr Hussey’s absence in an effort to resolve the concerns raised.

Tesco said the investigation officer had found the document in which he had called his manager useless to be concerning, unreasonable and disrespectful.

The company said an appeal officer decided the sanction of a final written warning was too lenient and imposed immediate dismissal instead, which was confirmed at a subsequent appeal hearing.

Tesco claimed Mr Hussey missed meetings, raised objections and declined to answer questions throughout the process, as well as refusing to acknowledge that his behaviour was unacceptable.

It also pointed out that it was not the first time that Mr Bajarunas had issues with the same employee.

Tesco said it was opposed to the remedy of reinstatement or reengagement, given the trust and confidence that once existed between the company and Mr Hussey was “broken beyond repair.”

WRC adjudication officer, Eileen Campbell, said it was curious that behaviours that had been under the radar for some time between the complainant and his manager had not been addressed by Tesco.

Ms Campbell said the process was frustrated by Mr Hussey’s failure to attend meetings.

Overall, she concluded that the dismissal was procedurally fair despite some flaws.

However, she said the initial final written warning should have remained in place as the sanction of dismissal was not justified and was disproportionate.

She also observed that the responsibility of managing the employment relationship falls unequivocally on an employer.

However, Ms Campbell said she did not condone in any way Mr Hussey’s behaviour towards his line manager, which was “unacceptable on any level” and noted he had contributed to a significant degree to the situation in which he found himself.

At the same time, she could not accept that a verbal interaction with a line manager could be the basis for an employer to lose faith with an employee “of 17 years’ standing.”

Ms Campbell directed Tesco to re-engage Mr Hussey within four weeks, but not in his previous role, together with a final written warning to stay on his file for 12 months.

The WRC said the period he was out of work should be treated as a period of unpaid suspension

Ms Campbell said she was satisfied that there were many options for warehouse operative roles in such a large company and expressed hope that Mr Hussey would use the opportunity to modify his behaviour.