The decisions in dismissal cases heard by the Workplace Relations Commission (WRC) are often unremarkable. However, every so often a decision is published that clearly highlights a number of key principles worth noting. The recently published decision of Adjudication Officer, Brian Dolan, in the case of Januszewski v Lidl Ireland GmbH, ADJ-00029944, is such a decision. Here our Adrian Twomey highlights the key elements to which both employers and employees should pay attention.
The Complainant, Mr. Januszewski, commenced employment as a store assistant with Lidl in 2010. After almost ten years of apparently blemish-free employment, he was dismissed for supposed gross misconduct on 20th August 2020. He initiated a claim for unfair dismissal before the WRC within a matter of weeks. The case was not heard until January 2022 with a decision being issued at the end of May.
At the hearing, Lidl claimed that Mr. Januszewski was dismissed because he:
(a) switched off the electrical supply to the freezer area of a store before undertaking worth in that area; and
(b) did not wear the correct Personal Protective Equipment (PPE) when undertaking that work.
Mr. Januszewski replied that he had turned off the power, but only for a few minutes and that there had been no risk of food in the area defrosting. It appears that he was honest and truthful in making his admissions both at the hearing and during the employer's investigation before he was dismissed. He claimed at the hearing that the real reason for his dismissal was the fact that he had made an internal complaint about his manager to the employer.
In deciding the case, the Adjudication Officer focused on two key principles that are often forgotten by employers and employees in these situation:
If no reasonable employer would have dismissed the employee in the circumstances then a dismissal is unfair; and
Employees are under an obligation to "mitigate their loss" or reduce the amount by which they are out of pocket by actively seeking and taking up offers of other employment after they are dismissed.
After considering the first of these principles, the Adjudication Officer concluded that:
"... no reasonable employer would have dismissed the Complainant in these circumstances. On review of the nature of the misconduct and the Complainant’s long service, it is clear that a lessor sanction would have served the purpose of preventing this misconduct from re-occurring and would serve as a safe guard for the Respondent’s health and safety practices."
That finding certainly makes sense in the circumstances and serves as a warning to employers about the dangers of zero tolerance approaches to employee misconduct.
Having decided that Mr. Januszewski should win his unfair dismissal case, however, the Adjudication Officer then had to decide on the remedy to be awarded. The employee was not so successful on that front. Instead, the Adjudication Officer noted that he had not provided any evidence of efforts to seek work after his dismissal. Given that there was a shortage of retail staff at the time, it was clearly going to be difficult to believe that the employee could not find work. The Adjudication Officer awarded the Complainant a mere €2,492.28 or six weeks' salary for that reason.
Had the employee produced meaningful evidence of having sought alternative employment, he might reasonably have expected to get compensation equivalent to well over ten times that amount or even to have been awarded reinstatement. An award of reinstatement would have resulted in him getting his job back with back-pay.
The outcome highlights the importance of both employers and employees seeking and obtaining appropriate legal advice regarding claims before the WRC. Those requiring such guidance or representation before the WRC can contact our Adrian Twomey.