This week we look at a recent Labour Court case in which a retail worker claimed to have been unfairly dismissed after his staff discount card was used by others. Our Adrian Twomey highlights the key points to note in the case of Musgrave Operating Partner Limited t/a Supervalu v O'Noah, UDD2273.
The Complainant, Mr. Olwale Noah Olade O'Noah, commenced employment as a sales assistant with Supervalu on 20 October 2008. One of his benefits as an employee was a "Real Reward" card which entitled him to a 10% discount on in-store purchases. It appears that staff were only entitled to use their "Real Reward" cards themselves or to permit their family members to use them.
At a meeting in May 2020, Mr. O'Noah admitted that he had given his card to someone who was not a member of his family or household. In June of that year he was suspended on full pay pending the outcome of an investigation. He attended at an investigation meeting and was represented by his trade union official. At the beginning of the meeting they were permitted to review CCTV footage that apparently showed customers using the Complainant's "Real Reward" card to avail of the staff discount. The Complainant benefitted from loyalty points arising from the use of his card by customers. He was unable to explain what had occurred and was, as a result, required to attend at a disciplinary hearing.
At the disciplinary hearing, the Complainant admitted that he had given his card to other people. He claimed that this was common practice in the store. That did not appear to be borne out by the evidence when the employer looked into the matter.
Ultimately, Mr. O'Noah was dismissed for gross misconduct on 3 July 2020. He submitted a complaint that he was unfairly dismissed to the Workplace Relations Commission (WRC). His complaint did not succeed and he appealed to the Labour Court. His appeal was heard on 30 November 2022 and a decision issued on 13 December. The Court found that the dismissal was not unfair, noting that:
"It was clear from the submissions to the Court including the Complainant’s submission that the Respondent had a policy in respect of the usage of the Real Reward Card. This policy was given to all staff and at least once a year staff were reminded of the contents of that policy. [T]he policy also provided that misuse of the Card could constitute gross misconduct. There was no argument before the Court that the process followed in coming to the decision to dismiss was unfair. The Court finds that in all the circumstances of this case there were substantial grounds justifying dismissal."
It is clear that any dishonest conduct on the part of employees may justify dismissal. In this instance, the employer had a clear policy in place and had communicated that policy to the workforce. Had they not done so, the outcome of the case might have been different.
Those who require advice in relation to employment law cases or who need representation before the WRC or Labour Court can contact our Adrian Twomey.