EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Joe Smith – claimant UD1195/2012
MN737/2012
Against
Gate Gourmet Ireland Limited – respondent
under
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: Ms V. Gates BL
Members: Mr T. O'Grady
Ms M. Mulcahy
heard this claim at Dublin on 19 December 2013, 7 July 2014 and 14 July 2014
Representation:
Claimant(s) : Mr Stephen O’Sullivan
Mr Killian Carty
Kent Carty, Solicitors, 47/48 Parnell Square, Dublin 1
Respondent(s): Ms. Paula O'Hanlon
IBEC
Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
Summary of Respondent’s Case:
The claimant was employed as a supervisor in a catering business which provides inflight meals for various airlines. He worked in the food stores area.
On 22nd April 2012 the company received an email from one of its customers which stated that out of date product had been supplied on one of their flights. The product was a chicken wrap out of date since February 2012. The Managing Director (MD) gave evidence that the company takes such incidents very seriously and that in this case an investigation was launched immediately.
An initial investigation was led by SF. On foot of this a larger investigation was launched to track the order through each department it passed through. Orders begin in the food stores area, through to the production group and customer service agents test the final product to ensure all the products are present and food safety checks carried out. Everyone was spoken to along the line.
A meeting was held with the claimant on 7th March 2012. There were concerns during the previous few months over stock control in food stores. This was the second or third discussion with the claimant. Detailed stock takes are done monthly and this had been erratic over the previous few months and late 2012. The MD attended this meeting as previous meetings were not ‘having traction’ and he wished to reinforce the importance of the issue. Previous meetings were held with the Production Manager. The claimant stated that his team were not listening to his instructions. The MD told him to escalate matters if this was the case. He wanted the claimant to take ‘ownership’.
Products due to go out of date are moved to a quarantine area to avoid them being accidentally picked. A rack was installed for this purpose but it was not being utilised. Also airlines rotate their menus during the year and as cycles change product needs to be removed to avoid errors in picking. Standard Operating Procedure (SOP) was not being adhered to. Exactly what went wrong was not clear but who was accountable was clear. The claimant had received SOP training and was familiar with company requirements.
The contract in question which was due to expire in July 2012 represented 15% of the company’s annual revenue and thirty jobs. The MD had a difficult task to retain their business. He had to issue credits to the company for the mistake and made assurances that the cause would be ascertained and remedied.
In cross-examination the MD confirmed that the claimant had not touched the order in question. The issue was the claimant’s conduct and performance. He had not done anything deliberately. Some out of date stock, which was still safe for consumption was put aside for the staff canteen.
March 6th 2012 was the first documented meeting with the claimant. He was not given any verbal, written or final warning. He was dismissed at the next meeting. The Production Manager made the decision to dismiss. Two other employees were given final written warnings, but not dismissed, for not noticing the products were out of date. The Stores Supervisor is responsible for determining what is available for issue. A substantial variety of frozen goods are held in stores and defrosted onsite for inflight consumption.
The services manager (SM) who was bond manager at the time confirmed her role as investigator in the process. She was assigned to the task by the HR manager. She interviewed all those involved in the handling of the wrap. She held two meetings with the claimant on the 26 and the 30 April 2012. Her investigation concluded that the claimant failed to follow standard operating procedures (SOP) in relation to the chicken wrap incident. She referred her conclusion to the PM without making any recommendation.
The production and purchasing manager gave evidence of meeting the claimant on two occasions prior to the chicken wrap incident. The quality control department had highlighted a problem with out of date product and stock rotation was a problem. The other issue was the monthly variation in stock ordering. A new off cycle sheet was introduced by the witness in February however in March 2012 it came to his attention that the claimant had failed to use the new sheets. At a meeting on the 7 March the claimant indicated that he was not happy with staff performance in the stores area. In the days following the claimant’s suspension on the chicken wrap issue a full check of all freezer stock was conducted. The PM gave evidence of dismissing the claimant because he did not take responsibility for his job as store supervisor and failed to address poor performance of his staff. Other reasons for the dismissal included the chicken wrap incident, the out of date stock and stock control issues.
The appeal of the claimant’s dismissal was carried out by SMcL. He reviewed the case in full and the sanction imposed. His evidence was that he travelled to the airline who reported the chicken wrap in order to save the contract at the time. In upholding the dismissal he took into account the fact that the claimant put the respondent’s reputation at serious risk.
Summary of Claimant’s Case
The claimant commenced employment in February 1993. He was appointed supervisor in October 2000 and received no specific training for the role. As supervisor he had responsibility for monitoring staff performance, taking deliveries, ordering, checking critical control points (CCP) and stocking twenty flights daily. He dealt with minor disciplinary matters such as time keeping with staff but any serious disciplinary matters he referred to management. He also took responsibility for training staff. Prior to the appointment of the purchasing and production manager the store department had a manager based there.
With regard to the airline where the chicken wrap incident came to light he explained that the product was the only product which left the stores without a date being recorded. This product moves from the freezer store directly to plating where at that point the best before dates are checked and recorded. Another employee took responsibility for not checking and recording the product.
In the months leading up to his dismissal he had discussed the increase in the volume of work with the production and purchasing manager. He had sought assistance and the attendance of his manger at a staff meeting which he hoped would have the effect of staff taking their role more seriously. Management did not attend any meeting he had with staff following the request.
Following the 2nd February meeting he was of the view that the off cycle sheets introduced by the production manager was time consuming and unsuitable for recording in a freezer with poor lighting. He used a different recording sheet.
Prior to his dismissal the claimant had no warnings or disciplinary matters on his record.
Determination
A preliminary investigation was undertaken by SC, branch manager at the date of the incident which led to the claimant’s dismissal. The investigation was confined to how the out of date product had been supplied to the customer and she had no role in making a recommendation in relation to the disciplinary process. However, the investigation concluded that the disciplinary procedure should be invoked on the grounds that the claimant had failed to comply with “in house” policies in relation to monitoring out of date stock.
On the 8 May 2012, the claimant attended a disciplinary hearing conducted by EK, production and purchasing manager. Prior to the hearing date, the claimant was notified by letter dated the 2 May 2012, that following a full investigation, four allegations against him would be included on the agenda as follows;
- Failure to comply with standard operating procedures in the store area
- Failure to implement appropriate processes to monitor stock rotation
- Very serious breach of food safety standards
- Failure to effectively supervise the stores with significant potential risk to public safety as well as to create serious damage to customer relations with the airline affected.
The Tribunal is of the view that the appointment of EK to conduct the disciplinary hearing in relation to the four allegations against the claimant was unfair and contrary to the principles of natural justice given that EK had a day to day operational function within the respondent company and ultimate responsibility for the stock and stores department. Furthermore, EK headed an investigation into the current stock control procedures, the results of which formed the basis of the allegations against the claimant and in the absence of any evidence to the contrary, it appears that EK made the decision to dismiss.
Having heard the evidence of all the witnesses, together with the submissions of the parties representatives, the Tribunal is of the view that there was a failure of the standard operations procedures in relation to stock control. The Tribunal finds that it was unfair and unreasonable to conclude that the claimant was solely and exclusively responsible for such failure. Termination of employment on the grounds of gross misconduct was a disproportionate sanction in all the circumstances, particularly but not exclusively taking into account that the claimant was employed by the company for a period of nineteen years with an unblemished record and the claimant received no formal verbal or written warning in the time preceding the incident and other personnel investigated received only final written warnings following the conclusion of the investigative process.
The Tribunal determines that the claimant was unfairly dismissed and awards compensation in the amount of €45,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal further awards the claimant €5,899.84 in lieu of eight weeks minimum notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)