In the recent high profile decision of the Workplace Relations Commission (“WRC”) in Cathal Hussey v Tesco Ireland Limited (ADJ-00052619), Tesco has been ordered to re-engage a worker who was dismissed after calling his manager “useless”.
Facts:
The Complainant had 16 + years service with the Respondent prior to the decision to dismiss.
In terms of the issues giving rise to dismissal, the Complainant had referred to his line manager as “useless” following which his line manager had filed a grievance under the Respondent’s bullying and harassment procedure.
An investigation was undertaken by the Respondent. Following the investigation there was a disciplinary process the outcome of which was to impose a sanction of a final written warning on the Complainant. This was appealed by the Complainant and on appeal the Respondent elevated the sanction to that of dismissal. It seems a further appeal was offered against the sanction of dismissal and the Complainant exercised that additional right of appeal. The outcome of the additional appeal was to uphold the dismissal.
The Complainant brought a claim against the Respondent under the Unfair Dismissal Acts 1997-2015 (the “Acts”) and sought the remedy of reinstatement.
Decision:
Re-Engagement:
The Complainant was successful in his unfair dismissal claim and the Respondent was directed to re-engage him within four weeks from the date of the WRC decision but with a final written warning to remain on the Complainant’s file from the date of re-engagement for one year. The WRC directed that the period between the date of the Complainant’s unfair dismissal and the date of re-engagement be treated as a period of unpaid suspension.
The Adjudicator made it clear that she was not directing re-engagement in the Complainant’s previous role. She was satisfied there were many options for General Warehouse Operative roles such as that held by the Complainant given the nature and size of the Respondent’s enterprise.
This decision is significant in light of the Supreme Court decision last year in the case of An Bord Banistíochta, Gaelscoil Moshíológ v The Labour Court and Aodhagán Ó Súird and the Department of Education [2024] IESC 38 where the Supreme Court emphasised that re-instatement and re-engagement are remedies that are “exceptional in nature”. Our previous article on that case is available here.
The Adjudicator confirmed she was mindful of the Supreme Court decision in the Gaelscoil Moshíológ caseand quoted the following passage from the Judgement:
“The remedy of reinstatement under s. 7(1)(a) can normally be said to be only applicable in a case where the WRC or Labour Court considers that the employee’s dismissal has been totally unfair and unjust, such as to require the employer to take the person back in the same job, without any break in service or loss of pay, and notwithstanding the inevitable breakdown in the relationship between them. It is a very strong remedy, and is only applicable in clear cut cases, where it is the appropriate response to perhaps high-handed and unjustifiable conduct on the part of an employer, and where any other remedy is not sufficient vindication of the employee.”
The Adjudicator determined that she did not find compelling the submission of the Respondent that because it was opposed to re-instatement, it should not be granted. However, having considered the totality of the evidence she did find beyond doubt that the Complainant contributed to a significant degree to the circumstances in which he now found himself. She took this into account when considering his request for re-instatement and ultimately she did not find re-instatement to be an appropriate form of redress in this case.
Having ruled out re-instatement the Adjudicator went on to set out her analysis as to how she arrived at a decision to order re-engagement. She confirmed she had taken into consideration the age of the Complainant, the length of his service with the Respondent together with the fact that the Respondent employs over 13,500 employees in this jurisdiction and plans to open ten new stores nationwide. She confirmed the size of the Respondent enterprise was a significant factor in her decision to direct re-engagement.
Fair Procedure Points:
As well as being noteworthy due to the re-engagement order this WRC decision is interesting from the perspective of guidance for employers around the rules of fair procedures when conducting workplace investigations, disciplinary processes and appeals processes.
For instance,, the Adjudicator’s decision highlights the following points and could act as a helpful precedent for employers conducting internal investigations and disciplinary processes:
Takeaway for Employers:
Workplace investigations and disciplinary processes are difficult to get right. It can be worthwhile to take legal advice early on in the process in order to avoid costly mistakes that cannot be rectified later.
Employers (and larger employers in particular) should be mindful that an award of compensation may not be the only thing they will be exposed to in an unfair dismissal claim by an employee. They could find themselves subject to an order to reinstate or re-engage the employee.
The Supreme Court’s guidance in the Gaelscoil Moshíológ Judgement as to the “exceptional nature” of those remedies makes such orders less likely but it is evident the WRC are still willing to consider them.
For example, see our recent article here which discusses a recent case where the WRC ordered re-instatement.
Links:
https://workplacerelations.ie/en/cases/2025/july/adj-00052619.html
Author – Laura Killelea
31st July 2025
Anne O’Connell Solicitors
19-22 Lower Baggot Street
Dublin 2.
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