EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
UD2395/2011
Peter Theloke - claimant MN2409/2011
WT959/2011
against
Baxterstorey (Ireland) Limited, - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr J. Browne
Mr F. Dorgan
heard this claim at Kilkenny on 26th June 2013, 10th and 12th September 2013
Representation:
Claimant: Mr Harry Carpendale, Boland & Company, Solicitors, Patrick's Court,
Patrick Street, Kilkenny
Respondent: Mr Aidan Phelan, Peninsula Business Services, Unit 3, Block C,
East Point Business Park, Dublin 3.
The claims under the Organisation of Working Time Act 1997 and the Minimum Notice and Terms of Employment Acts 1973 to 2005 were withdrawn by the claimant’s representative at the commencement of the hearing.
Summary of evidence:
The respondent is a corporate catering company employing over 500 people in Ireland. The claimant worked with the respondent as a chef manager. He had worked with the respondent’s predecessor from 2004 until the contract transferred to the respondent in October 2009. A team of six worked on the site.
It was the claimant’s evidence that initially he catered for around 200 people at the site but this later increased to over 350. He received complimentary feedback from the client and had catered successfully for important client functions as part of his role. He was passionate about his work and denied the respondent’s allegation that he lacked interest in his role. There had been no issues with his performance on the site until after the transfer of the contract and in particular until January 2011 when OM took over as operations manager from TOM.
On the transfer of the site to the respondent in October 2009 the executive development chef (EDC) spent three weeks on site providing training in the standards and requirements of the respondent company and later provided additional training including inter alia two days training on 31 January 2010 & 1 February 2010.
EDC’s position was that while the claimant worked really well for a couple of months he and his team had reverted to the old ways. In an e-mail dated 10 June 2010 to the claimant, EDC listed a large number of issues she found unsatisfactory during a site visitandencouraged the claimant to change and develop his recipe bank to meet the modern customer’s expectations. She later reviewed the implementation of an action plan which was developed following the outcome of a satisfaction survey and in an e-mail sent on 22 June to the claimant’s then Operations Manager (TOM), she stated:
“It was like starting all over again with (the claimant) today. A little hissy fit “I can’t do anything right” were his first words … to my “good morning” He in my opinion will not improve sufficiently, even after outlining in detail with his agreement the corrective action plan he has made no further effort.”
She concluded by stating he had “no interest in improving and developing himself or the food offer”. On a site visit in early July the claimant had just begun annual leave and the unit did not look clean and there were a myriad of problems but on her visit on 15 July 2010, the claimant had returned from annual leave and the premises looked good once more. Following her last site visit on 19 November 2010 EDC e-mailed the claimant to say that it was “a great site visit with a great array of fresh food displayed well”.
OM took over as Operations Manager of the site from TOM in January 2011 and on his first visit to the site on 25 January 2011 he described it as being “a million miles” from other sites which was reflected in the financials, customer feedback and gross profit He directed the general manager (GM) to sort out the issues.
GM then visited the site on 4 February 2011 and discussed 31 issues relating to his work performance with the claimant, including issues relating to food standards, staffing and service, health & safety, finance and budgets and front of house issues.He showed the claimant how to carry out certain tasks and stressed the importance of transferring invoices to the correct accounts which the claimant had not been doing. The claimant was not showing variances in accounts, food wastage was not being recorded and invoices were not being prepared on time. He organised IT training for the claimant. GM’s position was that had the claimant made half the required changes he would have been happy but he did nothing.
The claimant’s evidence was that of the 31 items outlined by GM at the investigation hearing as requiring improvement, he resolved 26 and outlined difficulties he had in attempting to rectify the remaining issues. ‘
Following a further site visit on 2 March 2011 by OM, he sent an e-mail to GM, stating inter alia:
Firstly, he was surprised to see me, he tried to tell me he didn’t have time to sit down for a chat with me, which is his stock answer and incredibly disrespectful. Anyway, I told him in no uncertain terms to make time.
…
Throughout my short meeting with him he was disengaged. In fact while I spoke with him he was looking at customers coming in and acknowledging them instead of listening to me
I know that you are down there with him on Friday and I want you to take action with his shortcomings. He displays absolutely no responsibility or ownership of the management of the site instead he only offers up lame excuses.
In the e-email OM outlined the areas of dissatisfaction with the claimant’s performance: banking, signage, failure to deal with the absence of a catering assistant, transferring cost between accounts and gross profit (GP) (which was below target and the claimant did not understand it). OM’s evidence was that the claimant was not responsive to the support he and GM offered to get the site back on track and he never co-operated.
GM’s evidence was that there had been no improvement in the claimant’s performance in the subsequent weeks and he invited the claimant to attend a meeting on 25 March 2011. The claimant was given one day’s notice of this meeting. This was an investigation meeting. The same issues, as those discussed on 4 February, were again discussed. The claimant had been given an action plan but none of the goals were being achieved. He asked the claimant a number of questions but the claimant completely switched off and stopped answering his questions. The claimant became “very upset” but did not ask him to end the meeting. The claimant was not answering his questions and GM ultimately terminated the meeting. GM believed that he had covered everything at that meeting and concluded that the claimant had taken no responsibility for the management of the site and had no regard for standards, food staff, H&S or financial aspects of the business. He presented his report of the meeting to OM and that concluded his involvement in the matter.
The claimant’s position was that he had not been given prior notice of the nature and purpose of the 25 March meeting and believed it was to be a routine meeting. Had he been given prior notice of the meeting and its purpose he would have brought documentation with the relevant information. He was intimidated and bullied at this meeting and was not given the opportunity or sufficient time to respond to the issues raised. He was so intimidated and became so upset during the meeting he broke down and could not answer the questions. It was not a term of his contract of employment prior to the transfer of the contract that he must be proficient in the use of computers. GM denied bullying or intimidating the claimant and insisted that what the claimant perceived as bullying was a series of questions put to him about standards on the site.
On 27 March the claimant sent an e-mail to OM complaining “in the strongest possible terms” about the intimidation, aggression, bullying and harassment, to which he had been subjected by GM during the investigation meeting and stating that this rendered him unable to answer the questions coherently or put his position and he further highlighted that problems with his performance only started when TOM left. In his response dated 28 March OM informed the claimant that if he wished to pursue a grievance he would organise a hearing and enclosed the respondent’s grievance policy. In his reply dated 31 March the claimant indicated his wish to pursue his grievance. There was no response to the claimant’s email.(The claimant had inadvertently sent the e-mail to his own mail box.)
HRM conducted a disciplinary hearing on 4 April 2011 and the claimant was represented by a trade union official. He was given prior notice of the issues which were to be discussed: food displays and standards, cash handling procedures, management of the financial performance of the site, management of employee’s adherence to company policies, failure to record wastage and failure to record and monitor cleaning records correctly.HRM’s position was that the claimant did not refute the alleged breaches. They discussed the necessity tofollow up on till discrepancies and on the high levels of absenteeism. He had problems with the system of invoicing and could not open files on the system. He requested training in the use of spread sheets. HRM felt that he was not taking the issues seriously. He put forward no reasons for his failings. He understood what was expected of him. Having considered all the facts HRM issued the claimant with a final written warning, by way of letter dated 6 April 2011. She further informed him that an immediate and sustained improvement in his conduct and performance was expected, that she would continue to monitor his performance on a monthly basis and that if further issues were to arise it could lead to further disciplinary action which could lead to dismissal. HRM undertook to organise training in ‘Evolution’ for the claimant. HRMconcluded that the claimant had the capability but was disengaged.
HRM was not aware during the investigation meeting of the claimant’s letter alleging intimidation, bullying and harassment or that he was stressed and overworked. Although given the opportunity to raise any issues, neither the claimant nor his trade union representative mentioned it. If the claimant had raised a formal grievance she would have dealt with it. She accepted that the respondent should have informed her about the claimant’s letter of grievance. She agreed that it would be usual to stop the disciplinary process to deal with a grievance but in this case the grievance came in on the back of a disciplinary process and therefore it was dealt with as one.HRM confirmed that the claimant had not been upset during the disciplinary meeting and that he responded accurately. As well as the training given by EDC, further training was given by GM.She considered that the respondent had given him ample training and opportunity to improve.
The claimant received two copies of the investigation notes which contained a notable variation: the first copy stated, “this investigation is to discuss the management performance of (the claimant) and the sub-standard operation at the … site” and the second, which was sent to him subsequent to his e-mail of complaint on 27 March 2011, stated, “this investigation is to discuss [the claimant’s] performance since [OM] has taken over as Operations Manager”. HRM could not give any explanation for the variation.She refuted that the “old” version demonstrated that there was a pre-determined outcome.
The claimant was not provided with his terms and conditions of employment prior to the disciplinary meeting but the respondent’s position was that it honoured his original terms and conditions which carried over from his previous employment under the transfer of the business to the respondent. Although he had requested it, the claimant was never given the respondent’s capability policy. The claimant’s position was that he was neither offered nor given the support he needed. HRM had issued him with a final written warning, although he had no previous warnings. He did not appeal the final written warning because OM had ignored his earlier e-mail indicating that he wished to pursue a grievance against GM. It was the claimant’s evidence that under his previous employer, TOM (OM’s predecessor)wasresponsible for the financial performance of the site.
OM and a newly appointed General Manager (GMN) carried out a site visit on 30 June 2011 and found some problems there. The claimant told them that a deep cleaning had been ordered by GM. There was a high concentration of sales at the deli counter as opposed to the hot counter but OM felt this could be due to demographics or the food on offer. GMN paid another visit to the site on 8 July and had informal meetings in relation to a grievance raised on 6 July by a member of staff (MS) against the claimant and also in relation to issues raised at the time of the claimant’s final written warning that had allegedly still not been addressed by him.
By letter dated 12 July 2011 the claimant responded to the formal grievance raised by MS and the performance issues raised by GMN. As regards the complaint by MS his explanation was that he was implementing the directions of his managers to ensure that company policy was adhered to by the staff but that MS took great exception to this; MS regularly flouted regulations, consistently refused to adhere to the dress code in the kitchen in particular as regards wearing an apron and tying up her hair, she was issued with several warnings on issues such as time-keeping, absenteeism, non-adherence to company policy and performance. The claimant went on to suggest that MS’s complaint may be a response to his recommendation to HRM a week earlier that, (following a further absence from work while on a final written warning for absenteeism) she should be dismissed. HRM did not follow his recommendation and after that MS’s arrogance and insolence had been breath-taking. The claimant then continued (in his letter) to answer the other complaints relating to his performance by management and adamantly denied that GM has to call him on a monthly basis for information on financial matters. The claimant then continued by way of general comment, stating:
“At the above meeting you asked me what was preventing me delivering the standard required.
The reason is simple: as per myprevious correspondence, since February 2011, I have been endeavouring to carry out my duties under an air of harassment and intimidation as opposed to support and helpfulness. Thinking I had deleted your e-mail intentionally is a case in point. I am rebuffed and vilified at every turn when I look for support. Consequently, I am endeavouring to manage the unit … independently without recourse to any helpful advice, or support from the management team …. This issue is totally supported by the fact that my letters detailing the harassment and intimidation experienced by myself at my place of work have gone totally ignored.
I have worked at (the site) for 7 years, and believe it or not, I actually love my job. If in the eyes of (the respondent) I am not achieving the standards required, why not support me and enable me to achieve them? Constructive criticism I would welcome. However, I am made to feel incompetent, useless and inadequate. When I look for advice, (e.g. with the staff) I am told I am unable to manage them. When I ask what is wrong with the food I cook, I am told it is terrible. When there is a grievance meeting, I am made to feel guilty before being proven innocent.
Due to my dyslexia, I am unable to provide the quick-fire retorts necessary at these meetings in order to defend myself, leaving me humiliated and stressed (case in point: GM’s report of my disciplinary meeting which corroborates the fact I was unable to answer many of his questions). This was never an issue with me before as all meetings prior to February 2011 were conducted in a climate of co-operation and helpfulness.
…
I take my responsibilities very seriously, I love my job. However, I will concede that it is a very pressurised position, and in order to ensure that my customers’ needs top priority, I find myself unable to take any breaks, in the course of my working day.
HRM responded on 15 July 2011 in the following terms: “As the points raised were related to an on-going disciplinary process, the allegations for which an investigation with yourself has been conducted, we will not be dealing with these issues through the company grievance procedure.” In his letter of reply dated 18 July 2011, the claimant referred to his formal complaint, lodged on 27 March with OM, on the humiliation and intimidation suffered by him at the investigation meeting on 25 March 2011 and his later indication to OM that he wished to pursue his grievance, which pre-dated the commencement of the disciplinary process but he had not got a formal hearing. He continued:
“I refer to your letter of 6th April in which you affirmed that at all times I would receive support from (the respondent) in order to maximise my performance. This situation has not happened. It would appear there is an orchestrated action to consolidate evidence against me, in order to lead to my dismissal. (GMN’s) recent report and my rebuttal comments are a case in point.”
Later in his letter he stated that the promised training, which he was to ‘immediately’ receive in ‘Evolution’ computer software ‘has neither been organised nor received’ three months down the road. He concluded by stating that he is looking forward to having the above matter addressed.
HRM’s response to this was to write to the claimant on 25 July 2011 suspending him on pay and calling him to a disciplinary meeting, to be conducted by OM, on 28 July 2011. The complaints against the claimant were outlined in her letter and comprised of the seven issues put to him at the disciplinary hearing on 4 April 2011 as well as three further complaints: failure to follow basic management requests, misappropriation of management e-mails and treating one employee differently to other members of his team. When the claimant produced the e-mail of late March between himself and OM it transpired that his e-mail of 31 March, indicating his wish to pursue his grievance, had been addressed to the claimant himself rather than to OM, which the claimant asserted was due to his lack of computer skills. OM felt that the training and support provided to the claimant had “fallen on deaf ears.” OM felt the claimant was capable but had no interest. He took the decision to dismiss the claimant and communicated his decision to the claimant by letter dated 3 August 2011. Since the claimant’s dismissal sales on site have increasedfrom under 30% to 42% and while there had been reductions in the figures in other sites over the same period, the reduction in the site managed by the claimant was greater. OM did not know the current gross profit as he does not manage the contract any longer.
There was no alternative to dismissal as there was no opportunity to demote or transfer the claimant. In cross-examination OM denied that he wanted to get rid of the claimant. HMR deals with grievances. He assumed the claimant would follow up on his grievance. OM could not say why he did not contact the claimant about it.
The claimant’s position was that OM had not considered his responses. Members of management were aware that he was under huge pressure in performing his role but they consistently criticised him rather than give him encouragement or support.
OM could not recall when he received the letter dated 28 July 2011 from the claimant. In this letter the claimant stated that he was surprised when it emerged at the disciplinary meeting that OM had not received a copy of his detailed response dated 12 July 2011. The claimant also included a copy of his grievance confirmation of 28 March 2011.
The claimant appealed his dismissal. His appeal was based on the grounds that during his employment he “was the recipient of intimidating and harassing behaviour, that was neither dealt with nor acknowledged by the management therein. This intimidation escalated to such an extent that I felt bullied and threatened constantly in my place of work … even though I wrote repeatedly to managers and the HR department … no support was forthcoming.”
Another operations manager (AM) heard the claimant’s appeal. As part of the appeals process she had access to all notes and relevant personnel. When she met with the claimant on 19 August 2011 he did not offer any evidence to allow her to overturn the decision to dismiss. AM believed that the claimant had been afforded an adequate opportunity to respond to the case against him.
MP, who gave evidence on behalf of the claimant, had worked alongside him from November 2010 to November 2012. During that time the kitchen was clean and she did not recall receiving complaints about the food served until after the claimant has been dismissed. She found the claimant to be a very fair and understanding manager and he was always very busy. MP noticed that the price of certain items increased after the claimant was dismissed.
Determination:
Over the first seven years of his employment on the site (most of which was under, his previous employer, the transferor of the business to the respondent) the claimant enjoyed a good relationship with his employer and management and had, in the absence of evidence to the contrary, a good performance record but this changed when OM became the operations manager replacing his predecessor (TOM) in January 2011. While EDC had problems with the claimant’s performance in June and July 2010 she reported “a great site visit” in November 2010. It is notable that there was no documentary evidence before the Tribunal that the operations manager at that time (TOM) had any such problem with the claimant. (TOM was not in attendance at the hearing).
The Tribunal finds that the respondent had a markedly negative attitude towards the claimant. The Tribunal bases this finding on inter alia a number of e-mails (in particular EDC’s of 22 June 2010 and OM’s of 2 March 2011), the very first written comment by the new general manager (GMN) in the memoranda prepared following her first meeting with the claimant viz “I was introduced to (the claimant) who shook my hand but never made eye contact and we were told immediately he was too busy to talk.” and the evidence on the investigation meeting on 25 March.
The Tribunal finds it extraordinary that OM, who was conducting the disciplinary hearing on 28 July, had not been furnished with the claimant’s letter of 12 July 2011, sent presumably to GMN and copied to HRM, containing his response to MS’s grievance and responding to the on-going complaints about his performance. In light of the claimant’s written responses dated 12 July to MS’s grievance the Tribunal can only conclude that it was unreasonable to include that grievance as an issue for the claimant’s disciplinary hearing on 28 July, in particular given that one of the respondent’s earlier complaints about the claimant’s performance was his failure to follow up on staff absenteeism. Furthermore, there was no evidence that any other employee was interviewed as part of the investigation into MS’s complaint. (GMN was not in attendance at the hearing.)
The Tribunal finds there is no evidence that the respondent gave any consideration to the claimant’s responses to their complaints against him or to the fact that he was working in a very pressurised position.
The extensive lists of problems presented to the claimant throughout the investigatory and disciplinary process had an overwhelming effect and demonstrate a critical and unhelpful rather that an encouraging, supportive and efficacious approach, as would be expected of a reasonable employer. The Tribunal had to remind itself of the claimant’s prior clean record, including the survey results in June 2010 which had a 77.4% finding of good or satisfactory (evenly divided). The Tribunal cannot accept management’s assertion that the claimant had the capability but was not performing or consistently; the lists of problems presented by the various members of management suggest he had never been performing adequately. The respondent failed, despite requests by the claimant, to provide him with its capability policy. The Tribunal notes that prior to 2011 the responsibility for the financial performance of the site was part of the previous operation manager’s function and furthermore the claimant’s contract had not required him to be proficient in the use of computers.
The respondent’s failure to deal with the claimant’s grievance relating to the claimant’s allegations of bullying and harassment against GM at the initial stages of the process was due to the claimant’s having inadvertently sent his e-mail of 27 March, indicating that he wished to pursue a grievance, to his own mail box. On this point, the Tribunal notes that it is not an uncommon phenomenon that those who are proficient in the use of computers have difficulty in understanding the problems of the less experienced in their use. Following the claimant’s letters of 12 July & in particular 18 July 2011 (on which there was only brief mention in the evidence before the Tribunal) the respondent was on notice respectively that the claimant had and wished to pursue his grievance and in the particular circumstances of this case a reasonable employer would have at the very least considered dealing with the grievance at that stage rather than suspending the claimant and calling him to a further disciplinary meeting on 28 July. The claimant’s grievance was not dealt with at the disciplinary hearing on 28 July. This failure to deal with his grievance and the allegation of continuing bullying formed a major plank in the claimant’s grounds of appeal but the manager conducting the appeal failed to deal with this adequately or at all. A fair appeal requires inter alia the application of a fair and independent mind to the issues before the appeal manager. The mere rehearsing of the facts and outlining of the earlier procedures does not satisfy this requirement. The Tribunal is not satisfied that the manager hearing the appeal adopted such an approach to the claimant’s appeal.
The change in the title of the investigation notes, for which the respondent failed to give an explanation, tends to support the claimant’s contention that EDC’s e-mails, which were not put to the claimant at any stage during the disciplinary process, may well have formed a significant part of the respondent’s deliberations leading to the claimant’s dismissal.
For reasons set out above the Tribunal is not satisfied that the respondent approached the disciplinary process with an open mind. This and the aforementioned procedural flaws render the dismissal unfair. The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds. Compensation is the appropriate remedy in this case. The Tribunal awards the claimant the sum of €28,000.00 as just and equitable compensation under the Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)