EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO. UD960/2013
Mauro Panico -appellant
against the recommendation of the Rights Commissioner in the case of:
Ashdown Park Hotel Limited -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Browne
Ms S. Kelly
heard this appeal at Wexford on 9th December 2014
Representation:
Appellant: Ms. Caroline Panico, Scarnagh, Gorey, Co Wexford
Respondent: O'Doherty Warren & Associates, Solicitors, "Melrose",
Charlotte Row, Gorey, Co. Wexford
Background:
This claim came before the Tribunal by way of an employee (the appellant) appealing against a Rights Commissioner’s Determination (reference: r-129099-ud-12/MMG).
An independent interpreter was present to assist at the hearing. The appellant worked as a chef at the respondent’s hotel since July 2008. The employment appears to have been uneventful until November 2012.
The Tribunal heard evidence from the Food Purchasing Manager (Mr. F) and from the appellant. Mr. F stated that he had a food safety concern regarding the temperature of chicken supremes ready for service on 14th November 2012. He observed the chicken to be submerged in water and was concerned at the temperature reading he obtained. Mr. F gave evidence as to the potential impact to customers and to the hotel’s business and that he believed this issue warranted summary dismissal.
Separately, but on the same date one of the hotel owners complained to him about the quality of a sandwich prepared by the appellant. This issue alone however would not have warranted the dismissal of the appellant. The issue with the chicken supremes was the more serious issue.
Mr. F instructed the Head Chef to summarily dismiss the appellant when he was next due to for work which was
Saturday, 17th November 2012. This instruction was carried out and the appellant was summarily dismissed. Despite this the appellant worked the following day.
It was Mr. F’s evidence that he met the appellant early the following week and reiterated that he was dismissed for the two reasons outlined above. However, it was the appellant’s evidence that when he was dismissed by the Head Chef on Saturday he was only told of the issue with the sandwich. When he saw Mr. F early the following week he was again told he was dismissed due to the issue with the sandwich. When the appellant raised the unfairness of this he was then informed that there was also a food safety issue with chicken but the appellant did not believe what he was told. In addition the appellant stated that the kitchen was short staffed the day he prepared the sandwich for the hotel owner but this was refuted by Mr. F
The appellant gave evidence of loss and efforts to mitigate that loss since the dismissal.
Determination:
There was a complete absence of proper procedure in the manner in which the respondent addressed the issues it had with the appellant.
Mr. F the respondent's Food Purchasing Manager advised the Tribunal that the decision to dismiss the appellant arose out of the manner in which chicken was intended to be served at the respondent's carvery by the appellant. He found the chicken to be submerged inwater intth hot holding unit at a temperature of 41.5 degrees when the IS340 minimum temperature for food safety purposes is 63 degrees. Indeed, he advised the Tribunal that it is recommended that food in such circumstances be held at in or about 72 degrees.
In addition, there was an issue surrounding the quality of a sandwich served by the appellant to one of the hotel’s owners on the same date, however, Mr F confirmed that this issue would not have resulted in dismissal.
Mr. F advised the Tribunal that there could be no compromise on issues of food safety and that summary dismissal of the appellant was the only appropriate step to be taken.
The Tribunal was impressed by Mr. F’s justifiable concerns on the issue of food safety and his consequent concern for both customers and the hotel alike. Where the Tribunal had considerable concerns was the manner in which Mr. F addressed the issue, in the absence of any meaningful investigation of the issue and denial of any opportunity to the appellant to be heard on the issue or to defend himself.
Mr. F found chicken supremes ready for service in the hot holding unit of the carvery. These were submergd in water and on testing were found to be at an unsafe temperature. He concluded that this was a summary dismissal issue. Little by way of investigation was carried out and certainly any investigation where the appellant was not spoken to would have been completely defective. Without ever speaking to the appellant. Mr F instructed the Head Chef to dismiss the appellant when he turned up for work the following Saturday.
The appellant advised the Tribunal that he was told on the Saturday that he was being dismissed because of the sandwich issue. There was no disciplinary process whatsoever and it was only when the appellant sought to question his dismissal on the following Tuesday that Mr F first raised the issue of the carvery chicken with him. At no point was the appellant given the opportunity to appeal the decision to dismiss him.
In the absence of a proper investigation and enquiry into the matter at the time, the respondent is unable to satisfy the Tribunal that the dismissal of the appellant was merited. Further, the complete absence of any meaningful disciplinary procedure and the denial of basic rights to the appellant are unjustifiable.
The appellant was unfairly dismissed and is entitled to be compensated. The Tribunal awards the appellant the sum of €14,600 by way of compensation under the Unfair Dismissals Acts, 1977 to 2007, thus varying the Rights Commissioner’s Determination (reference: r-129099-ud-12/MMG).
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)