Calling manager 'useless' not a firing offence, WRC finds
Trade union SIPTU had accused supermarket bosses of "circling the wagons" in response to a legitimate grievance and subjecting the worker to a "crude exhibition of power" by upgrading a final written warning to summary dismissal to get rid of him.
"The emperor does not like being told that he isn't wearing any clothes," the complainant's union rep said in a submission when the case came before the tribunal earlier this year.
Denying warehouse operative Cathal Hussey's complaint under the Unfair Dismissal Act 1977, Tesco Ireland Ltd took the position that the manager's dignity was violated and the dismissal was "justified".
Vivian Cullen of the SIPTU Workers' Rights Centre, appearing for Mr Hussey, submitted that his client, a Tesco employee of 16 years earning €700 a week, had "outstanding legitimate grievances which were being ignored by management" when he met with his line manager, Martynas Bajarunas for a performance review meeting on 25 November 2023.
According to Mr Bajarunas's account of the meeting, the claimant read from a 12-page document outlining unspecified "concerns and issues".
"At the end, he said to me: 'You are useless.'"
The witness said he felt "harassed, stressed and bullied" by the remark, adding later that he had made a formal complaint because he felt "unsafe coming to work".
The complainant, Mr Hussey, did not give any evidence to the tribunal.
The tribunal heard Mr Bajarunas filed a formal grievance under the company's bullying and harassment policy against Mr Hussey – who refused to participate in an investigation meeting in January 2024.
The probe concluded Mr Hussey had committed a breach of the policy. The contents of the 12-page document he had produced and read were out of line with company policy and "very concerning, unreasonable, disrespectful and improper", the investigator further concluded.
Following a disciplinary meeting on 19 January, which Mr Hussey did attend, a company disciplinary officer decided there was "serious misconduct because the dignity of [Mr Bajarunas] was violated", the tribunal heard.
Mr Hussey appealed the sanction imposed, a final written warning. However, the senior human resources officer who heard the appeal, Mary White, decided to upgrade the sanction to summary dismissal, the tribunal was told.
Ms White gave evidence that the 12-page document showed Mr Hussey's remark was "not a heat-of-the-moment type of thing".
"This was all put in writing, that he thought [Martynas Bajarunas] was useless, and he was giving out about other managers," she said, adding that it was "inappropriate behaviour to call someone 'useless'".
She believed re-location was "not really an option" as there was "no remorse and no apology".
Ms White agreed when Mr Cullen put it to her that bullying was "inappropriate repetitive behaviour".
Mr Cullen put it to the witness that there was a single allegation that his client "called someone useless" and asked whether she regarded that as "a dismissible offence".
"Yes," Ms White said.
Mr Hussey's further appeal of the sanction was upheld by a second company appeals officer.
Adjudicator Eileen Campbell wrote in her decision that the final written warning "should have remained the sanction and should not have been elevated".
The reason for escalating the sanction to summary dismissal had "not been justified or explained to any degree of satisfaction" by Tesco, she wrote.
"I do not condone in any way the complainant's behaviour towards the line manager, which is unacceptable on any level," she wrote.
However, she concluded Tesco had "failed to requirement for reasonableness" set out in the Unfair Dismissals Act.
Upholding Mr Hussey's complaint, she rejected the union's application for full reinstatement – a remedy which would have meant the employer was liable to pay Mr Hussey back wages from the point of dismissal.
Instead, Ms Campbell directed Tesco to re-engage the worker in employment by mid-August this year, with afinal written warning to remain on his personnel file for a year.
She directed that the period since his Mr Hussey's dismissal be treated as unpaid suspension.
Closing submissions
In a closing submission, Dajana Sinik of IBEC, for the employer, said she would have liked to ask Mr Hussey why he wanted his job back in a company "that he alleges exploits its employees" and that it was "disappointing" that he did not testify.
She argued the document produced by Mr Hussey showed a "breakdown" in the employment relationship.
Mr Cullen argued the case against Mr Hussey was a "cynical" attempt to "silence a genuine grievance". He said his client "did not in fact bully or harass his manager but merely tried to highlight on-going concerns. including a request to change line managers".
"The concept of bullying and harassment has been weaponised against the complainant in a fait accompli; management circling the wagons," he added.
"Their way of dealing with a problem… was to get rid of the problem, the complainant. It is submitted the emperor does not like being told that he isn't wearing any clothes," Mr Cullen said.
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She argued the document produced by Mr Hussey showed a "breakdown" in the employment relationship. Mr Cullen argued the case against Mr Hussey was a "cynical" attempt to "silence a genuine grievance". He said his client "did not in fact bully or harass his manager but merely tried to highlight on-going concerns. including a request to change line managers". "The concept of bullying and harassment has been weaponised against the complainant in a fait accompli; management circling the wagons," he added. "Their way of dealing with a problem… was to get rid of the problem, the complainant. It is submitted the emperor does not like being told that he isn't wearing any clothes," Mr Cullen said.
