UD2341/2011, MN2362/2011

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Dr A.  Courell B.L.

Members:     Mr D.  Morrison

                     Mr T.  Gill

heard this claim at Carrick-On-Shannon on 16 May 2013

       and 5 September 2013

Representation:

Claimant:        

Respondent:   

The determination of the Tribunal was as follows:-

The claimant was employed from September 2004 in the deli section of the respondent’s Manorhamilton forecourt and shop, one of ten such operations within the respondent. In 2006 the claimant was promoted to the position of deli supervisor. The claimant’s responsibilities involved ordering, deliveries, menus, rosters and records including compliance with hazard and critical control point (HACCP) standards in order to keep within the regulations in regard to the operation of a food preparation and sale operation. Part of this aspect of her job involved meeting the environmental health officers on their visits to the operation.

On a site visit to the operation on 18 February 2010  the group deli manager (OM) of the operation, who became group operations manager in late 2010, reported inter alia on three critical issues:-

·         Temperature check sheets not been recorded since 29 July 2009

·         Cleaning check sheets, no records since 29 July 2009

·         No three times a day temperature checks carried out

These issues are all covered in the respondent’s introduction to HACCP and the claimant accepted that she had not complied with the above requirements. As a result on 22 February 2010 she was issued with a written warning by the managing director (MD) for

“The failure to comply with basic environmental health guidelines with relation to hygiene and record keeping, resulting in exposing our customers to sub-standard food and services. This situation must be rectified immediately by implementing all relevant environmental health guidelines.”

This warning was valid for one year and the claimant was warned that any further misconduct could result in the termination of her employment.

The fresh foods advisor (FF) of the store brand operated by the respondent assisted the respondent in further measures to implement the HACCP procedures. The claimant’s conduct did not come to the attention of the respondent again until 31 May 2011 when FF was conducting an audit of the deli at the Manorhamilton operation. His report was in the following terms:-

“On arrival some members of staff were not wearing head coverings behind the Deli area this could lead to hair falling into food Q16.

The walls behind and over the oven need cleaning Q19.

Q34 No allergen awareness information communicated to customers by means of the official group A4 laminated sign available to stores.

There was no cleaning records available for any of the areas in the fresh food department present or past, which not only would make you fail the 5 star awards, but is in breach of food laws IS341

The most serious breach of the food laws IS341 there was no food temperature records available present or past HOT or COLD this could lead to food poisoning if not recorded as you have no idea if the HOT food was cooked to the right temperature, stored at the right temperature etc.

This also applies to the Cold food in the Deli regarding storage.

No temperature checks available for deliveries also in breach of IS341 food laws.

On the temperatures and cleaning records alone present and past 130 points would have been lost if this was the real audit for the Brand Excellence Awards and more worrying all of the food laws IS341 have been broken.

Q44 The temperature probe in the store was not calibrated so even if the temperatures had been taken they would not lawfully be correct.

Traceability

There was no traceability on open packs of cooked streaky bacon or cheese in the cold room, these should have three dates on, use by date, opened on date, new use by date, this also applies to all the cooked meats, salads, sandwich fillers, in the serve over deli counter (all products should be labelled and also info put on a traceability sheet)

IS341 states that all HACCP is TEMPERATURE and CLEANING records should be kept in the store at all times.”

This audit was provided to OM who brought the matter to the attention of the CEO. On 9 June 2011 CEO wrote to the claimant to confirm the claimant’s suspension with pay pending a disciplinary hearing arising from FF’s audit. The claimant was advised of her right to representation and was further advised that the outcome of the disciplinary hearing could result in her dismissal for gross misconduct. The claimant was furnished with copies of both the audit and the HACCP records and files from the operation before the hearing.

The disciplinary meeting was held on 14 June 2011, it was conducted by CEO and OM, the claimant was accompanied by her solicitor.  In response to the allegations put to the claimant she said that she held her hands up to all the breaches and failures identified in the audit.  She said she planned to change in the future.  The claimant knew what was required of her and wanted a chance to rectify matters.

The respondent’s position was that the issues identified amounted to gross misconduct and to be a serious breach of food safety legislation requirements and could have serious consequences for the public and overall business.  The respondent could no longer trust the claimant. On 17 June 2011 CEO wrote to the claimant setting out the complaints raised in the audit and confirming that the claimant was dismissed with immediate effect for gross misconduct.

The claimant’s solicitor wrote to MD on 23 June 2011 in order to lodge the claimant’s appeal which MD heard on 8 July 2011.  On 14 July 2011 MD wrote to the claimant and confirmed the decision to dismiss her.

Determination:

In the claimant’s contract of employment, among the examples of what the respondent considers to be gross misconduct is deliberate vandalism or breach of safety or hygiene regulations. The claimant suggested that the spent verbal warning issued in February 2010 by MD played a part in the decision making of both CEO to dismiss and MD in rejecting the claimant’s appeal against dismissal. She further suggested that she had been provided with inadequate training in order to carry out her duties and that she had insufficient time to carry out those duties in a situation where, because of declining sales, there were fewer staff employed in the deli which the claimant was supervisor of.

In this case the Tribunal has come to a majority decision with Mr Gill dissenting. The majority are satisfied that, having regard to the specific terms of the contract of employment, it was reasonable for the respondent to conclude that the claimant’s failings as identified in FF’s audit of 31 May 2011 alone amounted to gross misconduct such as to justify dismissal. The majority are satisfied that the claimant was afforded sufficient training and assistance in order to be able to fulfil her role and note that the claimant was unable to point to any example of where she had brought her dissatisfaction with either the level of training or the level of assistance afforded to her to the notice of her superiors.

Accordingly, by the afore-mentioned majority the Tribunal finds that the dismissal was not unfair and the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

Having been dismissed for gross misconduct a claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 does not arise.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)