Case Study - Wojciechowski -v- Tesco Ireland

Peninsula Team

October 28 2011

Section 4 of the Unfair Dismissal Acts highlights that potentially fair reasons for dismissal may be based on the capability and competence of the employee, the conduct of the employee, and the fact that the employee’s role has been made redundant. Most employers would be well aware of these grounds for dismissal but there are scenarios when an employer is faced with a situation whereby the potential grounds for dismissal does not necessarily fall into these age-old categories. An employer, however, can lawfully dismiss an employee, even though the matter wouldn’t be considered conduct, competence or redundancy, in circumstances where there are some “other substantial grounds justifying the dismissal” (commonly referred to as SOSG dismissal). A common example would be where an employee works on a customer’s site and that customer no longer wants this employee on their site; the employer is left with the scenario whereby the employee has potentially committed no wrongdoing and there is no alternative work for them to do. Even though the employee has committed no misconduct, is good at their job and their position is not redundant, an employer may look to dismiss them on the basis that there are substantial grounds justifying their dismissal, namely third party pressure.

This issue almost came to a head in the case of Wojciechowski -v- Tesco Ireland which concerned an employee who was hired as a security officer for the large retailer Tesco Ireland. There had been a dispute running for a significant amount of time over the employee’s rate of pay which had been overpaid for a period of time. Shortly after the dispute was put to rest, it was highlighted that 16 security officers in the company did not hold the appropriate PSA license as required to hold a security position within the company. The employee was placed on unpaid leave for two weeks in order to give him time to rectify the issue and obtain the necessary accreditation. The employee took this matter to the Equality Tribunal on the basis that this constituted disciplinary action against him and accordingly he was discriminated against on the grounds of race as he was a non-native English speaker and an Irish national would not been subjected to such treatment.

The employers in response highlighted that it was bound by the terms of the Private Security Act, 2004, which required the PSA license and that they had found 16 employees were in breach of this licensing requirement. Although the employees were not complying with the terms and conditions required in their contract the employers did not choose to terminate their contract for SOSG (some other substantial grounds); instead the employee was afforded a two week period in order to allow them the opportunity to resolve the issue they had with their PSA license.

As highlighted above, in Irish employment law an employer can justifiably dismiss an employee where there are substantial grounds for doing so. Section 4 of the Unfair Dismissals Acts actually refers to one such scenario in that an employer can justifiably dismiss an employee where their continued employment would bring that employer into contravention of a statutory requirement. The employer in this case specifically stated in their defense that they could have reasonably looked to dismiss this employee as they were under no obligation to retain an unlicensed employee. The employer argued that they actually took a reasonable and fair approach to afford the opportunity to the employee to obtain proper accreditation and that this was the reason the employee was placed on two weeks unpaid leave and that such action was not disciplinary related in any manner.

Ultimately, the claimant’s issue with his license was resolved and the employee was re-instated into his position as a security officer. This was done a week late due to the absence of the Store Manager but the employee was reimbursed for the five days missed in work.

The Tribunal decided that there was no evidence available to either prove or support that the employer had discriminated against the employee on the grounds of his nationality. No connections could be made between the employee payment dispute and his nationality. Importantly for employer purposes it was noted by the Tribunal that the employer was right to place the employee on unpaid leave due to SOSG (some other substantial grounds) due to the employee not being able to provide the appropriate licensing accreditation to perform this role. This is important for employers as SOSG style scenarios regularly arise and employers are left with a situation whereby they cannot lawfully allow the employee to work or due to third party pressure for example there is no work available for them. This has often raised the thorny issue of whether or not the employee should be paid their wages whilst on a period leave from the time the SOSG issue arises and the ultimate resolution of the matter, be it dismissal or, as in the Wojciechowski matter, re-instatement. It has always been the Peninsula position that the employees should be unpaid and it is good to see that such an approach has received an endorsement from the employment tribunal in this case. It was highlighted that employee did not have to be offered an alternative work while waiting for the issue of his license to be resolved and that the employer was within their rights to place the employee on unpaid leave for SOSG (some other substantial grounds) and that this had in no way impacted on the grounds of his Polish Nationality.

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