EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Declan Cotter UD2117/2011
against the recommendation of the Rights Commissioner in the case of:
Ferrero Ireland Limited,
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. L. O Catháin
Members: Mr. D. Hegarty
Mr. O. Wills
heard this appeal at Cork on 15 May 2013
and 8 October 2013
and 4 February 2014
Representation:
_______________
Appellant(s):
Mr. John Kane instructed by Ms. Colleen Minihane, S.I.P.T.U.,
Liberty Hall, Dublin 1
Respondent(s):
Ms. Sophie Crosbie, IBEC,
Knockrea House, Douglas Road, Cork
The determination of the Tribunal was as follows:-
This case came to the Tribunal as an employee appeal under the Unfair Dismissals Acts, 1977 to 2007, against Rights Commissioner Recommendation r-097699-ud-10/DI.
From September 1999 to the start of July 2010 the appellant was a general operative for the respondent (a sweet manufacturer). In mid-June 2010 the respondent raised an issue with the appellant and another employee. The two employees were requested to have a discussion with the respondent. They were subsequently put on paid suspension.
At the end of June 2010 a disciplinary meeting was held. In early July 2010 the appellant was dismissed for gross misconduct. The respondent believed that there had been a breach of trust, that it could no longer have confidence in the appellant’s integrity and that, given the potential negative results of the appellant’s conduct, dismissal was not disproportionate. The respondent believed that its procedures in effecting the dismissal had been fair.
The appellant’s position had been that when a superior had wanted a chat on the day in question the value of having representation had not been realised by him as neither he nor his colleague had thought that they had done anything to warrant a meeting. Although he was suspended, production was not suspended and the respondent suffered no loss or damage. It was argued that dismissal was disproportionate in this situation and that more serious (and costly) incidents had resulted in as little as a verbal warning such that the respondent had shown a lack of consistency. P45s were issued before the appeal such that it was felt that the matter had been prejudged. The appellant had merely tried to help a workmate afflicted by a back complaint when lifting equipment was not working by loading weighty material into a tank. The appellant’s workmate had wanted to sustain production but, far from breaching any trust, they had been quite open and forthcoming about their actions.
However, given that the respondent was engaged in the manufacture of foodstuffs, it was found that the respondent had a right to regard as unacceptable conduct a non-compliance with its recipe and manufacturing process. As the said non-compliance was found to have been deliberate, dismissal was considered to have been within the range of reasonable responses open to the respondent.
Appealing to the Tribunal, the appellant contended that he had not knowingly changed the recipe, that he had merely assisted a colleague in maintaining the normal and expected level of production and that there had been no abnormality to lead to a potential recall of product. It was added that the incident in question would never have occurred if the respondent’s equipment had been working properly. It was felt that praise might have been accorded to the appellant for showing initiative in face of an impending difficulty and that he had had nothing to gain from lifting bags in a manner that was additional to his own workload and was not an attempt to cut corners in any covert way of making production easier.
The respondent maintained the position that it was a food manufacturer and that the appellant had been in breach of procedures in that he had changed product recipe and falsified records.
The Tribunal heard a great deal of sworn testimony from the respondent, the appellant and the appellant’s colleague. The respondent’s case was that there had been serious misconduct in that there had been non-compliance with recipe production procedure and that the respondent had to be able to trust its employees especially as the importance of adherence to procedures had been stressed to employees only weeks before the day in question. There was no excuse for a highly experienced employee not being familiar with the respondent’s procedures and the potential dismissal that could follow breach of them. The respondent rejected that non-compliance with recipes was widespread in the workplace and pointed out that this argument had not been made during the respondent’s disciplinary process. It was not denied that there might have been some minor non-adherences to fair procedures but it was argued that, in the overall scheme of things, all aspects of fair procedures were substantially afforded and that dismissal had been a proportionate sanction because trust was fundamentally undermined.
The appellant’s case was that the respondent’s procedure had been flawed in that the material events of 16 June 2010 had been followed by a phoned invitation to a chat such that proper notice was not given of the seriousness of the situation. It was also argued that the respondent’s investigator had not known enough about the respondent’s recipe to understand the facts surrounding the allegations and that another member of the respondent’s management had attended the appeal until advised to leave. It was not accepted that the respondent’s appeal and overall procedures had been adequate. It was contended that dismissal had been a disproportionate sanction especially as other employee misdeeds had not received that response. The appellant had been in the wrong place at the wrong time. The respondent produce had not been damaged in any way. There had not been any delay in production or any reprocessing. It was contended that there had been a general ad hoc approach to ingredients around the respondent workplace. Training and traceability recording were queried. Documents were alleged to have been fraudulently falsified rather than incorrect. It was pointed out that both dismissed employees were alleged to have been equally at fault.
Determination:
The Tribunal considered whether or not there had been serious misconduct and whether or not the respondent’s procedure was flawed. If employees had been frequently loosely interpreting the respondent’s requirements this should have been addressed. Ingredients were vital. What the dismissed employees did was wrong. Instructions were given but it was alleged that they were vague and that this had been going on for years. The Tribunal felt that procedures were flawed even if not all employee criticisms of them were accepted by the Tribunal. Two wrongs do not make a right. An employee should obey instruction rather than think to know better. What the appellant described as a mistake was not necessarily seen by the Tribunal as only a mistake even if the manufacturing process was not affected. The Tribunal did not feel that the punishment fitted the crime even if the Tribunal did not have unshakeable trust in the appellant’s account of events. It was felt that it was too much to say that he had been guilty of falsification of records even if it might have been felt that he had totally ignored a strict following of what he had to do. He had certainly colluded with the other dismissed employee. One of the respondent’s reasons for his dismissal was a lack of trust. His wrongdoing might conceivably be argued to have been minimal but it was also thought that he had not felt obliged to follow procedure. The culture of the business was such that adherence to a high degree of compliance was not the norm.
Having considered the appellant’s overall financial loss resulting from his dismissal, his efforts to mitigate that loss and his very substantial contribution to the events that led to his dismissal, the Tribunal, in reversing Rights Commissioner Recommendation r-097699-10/DI, finds that the appellant was unfairly dismissed within the meaning of the Unfair Dismissals Acts, 1977 to 2007. In all the circumstances of the case, the Tribunal considers compensation to be the appropriate redress and unanimously awards the appellant the sum of €19,000.00 (nineteen thousand euro) under the said Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)