Tesco deputy manager who ‘forgot to pay’ for Red Bull cans loses unfair dismissal claim

A Tesco deputy manager who said he was “singled out” and sacked for drinking three cans of Red Bull worth €9.45 without paying has lost his claim for unfair dismissal.

John Herd said he “forgot to pay” for the energy drinks on three occasions in October 2021, when he was accused of stealing them, because he was “on the verge of being made homeless” and was losing sleep over it.

The supermarket had argued that its “bond of trust” with John Herd was broken and that it was reasonable to sack him from his €33,900-a-year post – a position backed by the Workplace Relations Commission (WRC) in a decision published on Wednesday.

The tribunal heard that in September 2021, Tesco’s loss prevention software, called Target, flagged “unusual activity at the Crumlin Express store in Dublin where Mr Herd was the deputy manager.

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“It was alleged that the complainant took a can of Red Bull and consumed it without having paid for it on three separate occasions: the 3rd, 8th, and 18th of October 2021,” said IBEC employer relations executive Niamh Ní Cheallaigh.

The tribunal heard the allegation was put to Mr Herd by the store manager, Emma Doyle on October 29th, 2021, and that an investigation meeting, disciplinary hearing and appeal took place

He said his work colleagues “would know he always paid for his drinks each morning but on these occasions he apparently did not pay” – and that he was “unaware of his wrongdoing” until he was called to the first meeting Ms Doyle.

Mr Herd said he was “going through a very tough time in his personal life” and was losing sleep as he was “on the verge of being made homeless”.

Mr Herd accused the supermarket of “favouritism” – claiming that similar allegations against other staff were “swept under the rug”.

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He said he had complained to his line manager about one colleague, who he claimed gave out a bottle of spirits for free on one occasion and Tesco Clubcard points at “100 times the value they should have issued” on another.

This other worker had been “involved in multiple incidents and has only been issued with warnings, if even that”, Mr Herd said – arguing he had been “singled out” for the “full force of the disciplinary process for an arguably less severe infraction”.

He said both the investigating officer and the disciplinary officer had declined to discuss these other situations, stating they were “not aware” of them.

Mr Herd was sacked on foot of a finding of gross misconduct in December 2021, with the dismissal “effective immediately”, Ms Ní Cheallaigh said.

His later appeal that the sanction was “excessive” was rejected.

Upholding Mr Herd’s sacking, adjudicating officer Pat Brady wrote that Mr Herd had taken the energy drink and failed to pay for it.

“This did not happen on one occasion but actually happened on three separate occasions within a 15-day period,” Mr Brady wrote.

“The claimant should have been under no illusion from his position and training with the company that the issues that led to his dismissal would amount to gross misconduct.”