The facts of this case surrounded an employee who came to work with one of the employer’s retail units, the employee was being trained for the position of manager at a salary of €34, 000. In the course of training, the employer indicated that the employee was not suitable for the managerial role but as a result of his interest and dedication they offered him a position of a sales assistant at a salary of €25, 000. 

The employer had high expectations of its employees and tested these standards in practice through “mystery shoppers”; part of which was to ensure that the employee pushed products. There was a bonus given to employees who achieved a 95% score. 

On the first mystery shop the employee achieved a 31% score in the assessment. The report noted that the employee was “the only member of staff on the floor and was otherwise engaged with another customer”. Whilst he dealt with the customer in a suffice manner, he failed to meet the high expectations of the company. To demonstrate how serious the employer took this failure, the employee was given a formal written warning. 

A second mystery shop took place some months later, on this occasion the employee scored 70%, failing yet again to meet the company standard. As a result the employee was brought to a disciplinary meeting, it should be noted that there was a lack of requested representation, which lead to the employee receiving a final written warning. It should be noted that the employee was given the opportunity to appeal this decision but did not avail of this opportunity. 
Following this warning, a failure on the part of all employees to check for out of date stock resulted in all staff being subject to a disciplinary process. As result of this group discipline and because the employee was already on his final written warning, the employer believed that he had no alternative other than to enter the next stage of the disciplinary process which meant that the employee’s employment was terminated. 

The Tribunal held that the “employee was treated most unfairly”. It further stated that “whilst the employee may have been on a final written warning there was no obligation on the employer to move to termination.” The Tribunal held that the employer’s actions were “heavy handed and unfair in all the circumstances” and as a result it awarded the employee the sum of €10,000. 

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