UD1378/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                               CASE NO.

Krasen Stayanov Todorov      -claimant

                                                                                                                   UD1378/2013

Against

Master Burger Investments Limited T/A Gourmet Burger Kitchen-respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms V. Gates B.L.

Members:     Mr E. Handley

                  Mr J. Flannery

heard this claim at Dublin on 24th April 2014 and 6^th October 2014

Representation:

Claimant:        In person

Respondent:    Ms. Christina Ryan B.L. instructed by Ivor Fitzpatrick & Company Solicitors,

                        44-45 St Stephen's Green, Dublin 2

Summary of Evidence

The respondent’s Deputy Operations Manager (Adrian Capelle) gave evidence that the head chef of the respondent’s Temple Bar branch informed him of an incident on 12 November 2012. The head chef reported that the supervisor (C) had reported to him that she was assaulted by the claimant at the end of her shift on the 6 November 2012.

The deputy operations manager met with the supervisor and she confirmed that the claimant made physical contact with her and she provided a statement to this effect. The statement was opened to the Tribunal. The supervisor stated that there had been a disagreement with the claimant regarding staff food and when she addressed this with the claimant he became aggressive, stepped away and then made physical contact. Another employee witnessed the incident.

The deputy operations manager interviewed the other employees present that night and one employee (JN) confirmed that he had witnessed the disagreement and saw the claimant kicking the supervisor in her side.   Employee J was not working the night of the incident and employee M said he had not witnessed the incident.

An investigation meeting was arranged and subsequently rearranged and took place in a sister restaurant on the 26 November 2012 and another employee was present as a witness. In this meeting the claimant said he pushed the supervisor gently with his knee and he demonstrated the movement when requested to do so by the deputy operations manager. The claimant said the incident with his knee was carried out in good humour but the witness to the incident had disputed this and the supervisor had said the force was quite hard.

A decision was taken to invoke the disciplinary procedure. A meeting under this procedure was arranged for the 29 November 2012 but the claimant did not attend. A letter was received from a solicitor on behalf of the claimant stating that he would not be attending the meeting. The claimant was absent on sick leave from this time.

During cross-examination it was put to the deputy operations manager that he had held a second meeting with the supervisor at which she had said she was unsure whether she was kicked or not. The witness confirmed he had spoken to the supervisor on a second occasion and that she had been unsure whether it was the claimant’s foot or knee that had made contact.

The claimant queried in cross-examination why the supervisor waited until the 13 November 2012 to report the incident to the head chef with whom the claimant had historical interpersonal difficulties. The claimant believed the issue with the supervisor was connected to the issues he had with the head chef.

The deputy operations manager recalled the claimant mentioning about an issue that arose in a social setting with the head chef but as it was outside work the company could not take it any further. The claimant and the head chef worked in different branches following the difficulties that arose but later worked in the same branch again. The claimant put it to the manager that once again this caused difficulties as the head chef started playing “dirty games” and messing with the claimant’s roster. The claimant complained by email to the Operations Manager but he just ignored it and he also complained to the deputy operations manager. The deputy operations manager replied that the claimant had only complained to him about the roster and not about the head chef. He stated that he showed the claimant that of all the staff he was in fact working the least amount of closing shifts. The claimant put it to the manager that he was the only one doing split shifts and the manager replied that this was because the claimant had requested them.

In reply to questions from the Tribunal the deputy operations manager stated that the supervisor could have reported the incident to either the head chef or the restaurant manager. He confirmed that after speaking to the claimant about the nature of the contact he spoke to the supervisor again and she said she was unsure whether it was the claimant’s foot or knee but that she felt it was quite aggressive. The supervisor told him she had waited to see the head chef to raise the complaint but the witness could not recall if he had asked her why she had not reported the incident to the restaurant manager.

The operations manager gave evidence that he oversees six outlets. The head chef was based in the Temple Bar branch as a training centre. In October 2012 the operations manager transferred the claimant back to the Temple Bar branch but he was unaware of an issue between the claimant and the head chef when he made this decision. The first time he became aware of an issue was when the claimant emailed at the end of October to say he felt he was being prejudiced with the shifts. The deputy operations manager was asked to consider this matter and reported back that the claimant was given a fair amount of the different shifts.

The claimant was examined by Medmark in January 2013 and deemed fit to partake in both a grievance and disciplinary procedure. The grievance arose as a result of a letter received from a solicitor on behalf of the claimant. Dates for both meetings were arranged in February 2013 and the claimant was informed that if he did not attend a decision may be taken in his absence. The claimant failed to appear for both the disciplinary and grievance procedure and the outcomes were communicated to him. A medical certificate for the claimant was received on the 26 February 2013 for a period of sick leave covering the 14 to the 24 February.

The operations manager conducted the disciplinary procedure and having read the statements reached a conclusion that the incident did in fact happen and that it constituted gross misconduct. The sanction of dismissal was communicated to the claimant in early March 2013. In reply to questions from the Tribunal, he confirmed that he did not speak directly to the supervisor or the employee who witnessed the incident and he did not recall whether or not he differentiated between the claimant using his knee or his foot.

At the resumed hearing on the 6 October 2014 the operations manager told the Tribunal that the claimant was informed that the disciplinary meeting would take place in his absence. Had the claimant attended he would have given him an opportunity to question the witness statements. The grievance issues only came to light after the disciplinary process had commenced. The claimant had an opportunity to raise any grievances at his performance appraisal meetings which were held with all staff. On the day of the disciplinary meeting the witness had no knowledge the claimant was sick and no medical certificate was submitted by the claimant. It was confirmed that the notifications of the meetings were sent to the claimant’s old address and to his new address as well as his solicitor.

The supervisor involved in the incident of the 6 November 2012 which led to the claimant’s dismissal gave evidence to the Tribunal. Her evidence was that following a dispute the claimant kicked her with his knee or his foot. She described the claimant as aggressive. She reported the incident to the head chef the claimant’s line manager a few days later. She later prepared a written statement. She was interviewed by the appeals officer (DZ).

During cross examination the claimant apologised to the witness. A further incident occurred between the supervisor and the claimant on the 8 November but this did not form part of the respondent’s case in deciding to dismiss the claimant.

The witness was in charge on the restaurant floor and the claimant was in charge in the kitchen on the night of the 6 November 2012.

The claimant appealed the findings of both the grievance and disciplinary procedure.

The group managing director (DZ) carried out the appeal. Before meeting the claimant he met with the supervisor and one other witness. He wanted to hear their account of what happened and outlined the seriousness of the allegation. He met with the claimant who had been informed that his solicitor could attend if he wished. The claimant declined the offer and attended alone. At the appeal meeting the claimant demonstrated what happened and admitted that there was physical contact between him and the supervisor. The claimant was offered an opportunity to question the witnesses who had provided statements and he declined. The claimant offered no additional evidence or information and the dismissal was upheld. DZ could not recall what reference the claimant made to the head chef at the meeting and was only in a position to deal with the appeal rather than any other grievances the claimant had.

The claimant in his evidence to the Tribunal submitted that his dismissal was as a direct result of a grievance he had raised regarding his contracted hours. He was regularly required to work over his contracted hours. Initially when he complained he was moved to a different branch of the respondent company where it was known he previously had difficulty working with the head chef. He admitted that an incident had taken place on the 6 November 2012 but did not accept that he deserved to be dismissed. His account of what happened was that he was cleaning a grill in the kitchen on the 6 November 2012 when the supervisor came in and said that the head chef had asked her to keep an eye on him, it was at that point the claimant made physical contact with the supervisor.

He had worked as a chef for over thirteen years and had no previous disciplinary issues. The claimant made reference to three grievances he had attempted to raise with management:

1. Rostering
2. History of issues with the head chef
3. Overtime (contract hours)

The claimant accepted that the rostering issue was resolved. In February 2013 the contract issue was resolved and AC was aware of the issues between the claimant and the head chef. The supervisor was aware that there were issues between him and the head chef and it seemed to him that she was constantly checking up on him when the head chef was not on duty. The claimant did not attend a disciplinary meeting or a grievance meeting arranged in February following the advice of his solicitor at the time. He submitted that he was on certified sick leave from the 14 to the 24 February 2013.

Determination

The claimant was dismissed from employment on the grounds of gross misconduct following a complaint from one of the restaurant’s, supervisors, namely JN that the claimant had kicked her in the course of an incident which took place on the 6 November 2012. The claimant’s case was that the sanction imposed was disproportionate to the offence in that, whilst he admitted the physical contact, he denied acting aggressively.

On the 13 November, 2012, JN made a formal complaint to her employer and a full investigation ensued. By letter dated the 20 November 2012 the claimant was informed that, pending a full investigation, he was being placed on administrative leave on full pay and that an investigation meeting would take place on the 23 November 2012, at which meeting the claimant would have an opportunity to respond to the allegation and would have the right to representation and to appeal if dissatisfied with the outcome. The meeting of the 23 November 2012 was rescheduled for the 26 November 2012 as the claimant failed to attend. On the 26November 2012 an investigatory meeting took place, at which the claimant was given an opportunity to explain his position and to demonstrate the manner in which he had made the physical contact. In the course of the investigation, another staff member who had witnessed the incident provided a statement to the effect that he had overheard a verbal confrontation between JN and the claimant and had witnessed the claimant kick JN.

A decision was made by the respondent company to invoke the disciplinary procedure and the claimant was invited to attend a disciplinary meeting on the 29 November, 2012. However, this meeting was postponed for some months as the claimant submitted medical certificates to the effect that he was unfit for work. The respondent arranged for the claimant to be medically assessed on the 15 January, 2013 and a copy of the medical report dated the 21 January, 2013 which confirmed that the claimant was fit to participate in the disciplinary investigation was forwarded to the claimant’s solicitors. By letter dated the 7 February, 2013 the respondent company wrote to the claimant’s solicitors requesting that, without prejudice to the outcome of the disciplinary hearing, that the claimant return to work on the 11 February, 2013 and further requesting that the claimant engage with the grievance procedure invoked by the claimant and with the disciplinary process.

A disciplinary hearing was arranged for the 22 February, 2013 and the claimant was notified of the date and time of the said meeting by letters to both an old and new address and a letter was also sent to his solicitor to the same effect. The claimant failed to attend the disciplinary hearing and no request was received by the respondent company to again postpone the hearing.

Notice of termination of employment was sent to the claimant on the 4 March. 2013 effective as and from the 17 March, 2013. The claimant appealed this decision and a full appeal hearing took place on the 11 March, 2013 at which the claimant was in attendance and was afforded the opportunity to be legally represented and to question witnesses. The claimant declined to do so. The dismissal was upheld on appeal.

The Tribunal is of the view that the respondent undertook a full investigation into the incident, offered the claimant an opportunity to challenge all witnesses and explain his position and carried out a full appeal into the decision of the disciplinary hearing. The Tribunal has carefully considered all of the evidence adduced, particularly the evidence of the claimant and JN in relation to the incident which gave rise to the dismissal. JN’s evidence was that in the course of the incident, the claimant was aggressive and his actions were offensive, degrading and she had been physically hurt by the force of the kick and there was corroborative evidence from another staff member. In all the circumstances, the respondent company acted fairly and reasonably in the investigative process, the disciplinary process and the appeal process in concluding that the incident constituted gross misconduct on the part of the claimant. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)