EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Silvio Munhoz -claimant UD770/2013
MN387/2013
against
Dawn Meats Ireland T/A Dawn Grannagh -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 D. Donovan B.L.
Members: Mr J. Browne
Ms S. Kelly
heard this claim at Waterford on 25th November 2014
and 14th April 2015
Representation:
Claimant: Mr. Neil J Breheny, Neil J Breheny & Co, Solicitors, 4
Canada Street, Waterford
Respondent: Ms. R. Bradley, IBEC, Confederation House, 84/86 Lower Baggot Street,
Dublin 2
Background:
The claimant commenced his employment with the respondent in 2003 at a different workplace location and when the respondent closed this location the claimant left but returned to work with the respondent at its premises in Hatchtown in 2007 and transferred to the respondent at its premises in Grannagh, Waterford on 1st January 2009. The claimant worked as a general operative in the boning hall. The claimant’s employment with the respondent finished on 19th February 2013 and his gross weekly salary at that time was €550.
Until 16th April 2012 the claimant’s work record appears to be uneventful. Following an incident on 16th April 2012 the claimant was issued with a final written warning dated 8th June 2012, in common with some other employees, for leaving his work station 30 minutes before finish time and failing to return to work when directed. Whilst this warning letter was still live it was alleged that the claimant left his work station about 15 minutes before finish time on 14th February 2013, did not clean his worktable down, left meat of value lying on the table and refused to return to his work station when directed. The disciplinary procedure was invoked against the claimant following which the claimant was dismissed for gross misconduct.
The claimant lodged a claim with the Tribunal alleging unfair dismissal.
The Respondent’s Case:
Evidence for the respondent was given by CO.B, the boning hall manager, and by JR, Operations Manager. There was a dispute between the parties as to whether or not the Human Resources Manager was present at the meetings held with the claimant. The claimant maintained that he was present but the Human Resources Manager gave evidence that he was not present.
The evidence was that on Thursday, 14th February 2013 Employee H, the claimant’s supervisor, informed CO’B that the claimant had left his work station early, had not cleaned off his worktable and had left meat trims lying on it. Both CO’B and JR said this was a breach of procedures, affected hygiene rules and that the meat trims had a value. Photographs showing the meat trims lying about were shown to the Tribunal. It was stated that when asked by Mr H to return to the table the claimant had refused. CO’B said he arranged a meeting with the claimant the following day in order to investigate the matter.
Employee CO’B told the Tribunal he reported the matter to JR and when the claimant came into work on 18th February 2013 he called him to JR’s office for a disciplinary meeting. JR said he told the claimant that he could bring representation with him and the claimant brought another employee. At the meeting the claimant was shown photographs of meat trims left on his worktable. It was the respondent’s evidence that at first the claimant accepted these meat trims were his but later changed this and said they had been planted there. It was also put to the claimant at this meeting that he refused to go back on the line to clean up his worktable when requested by his Supervisor and that he was abusive to Employee H. The evidence was that the claimant denied it was his Supervisor who asked him to go back, that it was another employee, that the meat was not worth any value and that everyone called the supervisors names and no disciplinary action was taken. Following this meeting the claimant was suspended.
On 19th February 2013 the claimant was advised of the termination of his employment for failure to follow a reasonable request from a supervisor, for not following the clean down procedures, for verbal abuse and because this happened while the claimant was on a final written warning. He was given a right to appeal the decision within two weeks of the 19th February 2013. It was the respondent’s evidence that the claimant did not appeal the decision.
In cross-examination it was put to the respondent that the claimant’s legal advisers had written to the respondent on 28th March 2013 in effect seeking to appeal the decision to dismiss the claimant and that the respondent had not replied. JR said this letter was outside the two-week timeframe for the appeal.
In cross-examination it was put to JR that there were other sanctions that could have been applied and he was asked did he consider other sanctions. JR said he did but because the claimant was on a final written warning he felt dismissal was appropriate.
The claimant’s contract of employment and the respondent’s disciplinary procedure were opened to the Tribunal and evidence was given that these had been furnished to the claimant in both English and Portugese. It was highlighted to the Tribunal that failure to carry out a reasonable management instruction was listed under the heading “Gross Misconduct” in the disciplinary procedure. It was the respondent’s evidence that the claimant had breached this when he failed to carry out the instruction of Employee H to return and clean down his table on 14th February 2013.
It was the respondent’s evidence that the claimant was not summarily dismissed but was dismissed following the respondent’s own procedures and in accordance with the LRC Code of Practice on Grievance and Disciplinary Procedures (Statutory Instrument 146/2000) and was paid four weeks’ pay in lieu of notice.
Regarding the claimant’s losses it was submitted that because the claimant was unfit for work and was on disability benefit he had no losses and that the four weeks’ pay awarded in such cases had already been paid to the claimant by way of four weeks’ pay in lieu of notice.
The Claimant’s Case:
The claimant’s evidence was that on 14th February 2013 while he was leaving the respondent’s premises an employee, he could not recall his name, and not his supervisor told him to return to his worktable. He said the meat trims were not his and that they had been planted there. He said he told CO’B that if he viewed the CCTV footage he would see it wasn’t the claimant who left the meat trims. In cross-examination the respondent said the CCTV did not cover that area but this was disputed by the claimant who said the respondent told him the CCTV was broken.
The claimant said he did not have representation with him at the disciplinary meeting on 18th February 2013 but brought another employee simply to translate for him. He said the meeting took about 20 minutes.
The claimant denied that he received the letter of 19th February 2013.
After he was dismissed the claimant took legal advice from a foreign lawyer who spoke Portugese and on 26th March 2013 went to his current legal adviser who immediately wrote to the respondent on his behalf in order to try and have the claimant reinstated.
Regarding the incident on 16th April 2012 the claimant said he wasn’t the only employee who left and that many other employees left early also. The claimant said they were complaining about the slow down on the production line which affected them because of piece work.
The claimant gave evidence of losses and his efforts to mitigate his losses. He said he worked for 1 month in AIBP and did some other work helping with lambing. He said he injured his shoulder when working for the respondent and until he had surgery he could not work. In cross-examination he was asked if he wason social welfare/disability benefit. The claimant said he was on disability benefit.
Determination:
Having considered the evidence adduced at the hearing the Tribunal finds that there is a conflict of evidence between the parties as to whether the conduct as alleged occurred or not.
The Tribunal firstly approached the matter on the basis that if the conduct as alleged did occur was the respondent entitled to dismiss the claimant in respect of same and the Tribunal finds that whereas the respondent was entitled to discipline an employee in respect of conduct of the nature alleged a lesser sanction would have been more appropriate in the circumstances.
In the circumstances the Tribunal finds it unnecessary to resolve the conflict of evidence as to whether the incident as alleged occurred or not.
The Tribunal further finds that whereas the claimant was on a written warning at the time of the alleged incident that warning was in effect in respect of an industrial relations matter as opposed to misconduct per se and should not have been taken into account when deciding whether to dismiss the claimant or not. The Tribunal further notes that the final written warning dated 8th June 2012 does not specify that any further breach of company rules or procedures would lead to dismissal but merely states “lead to further disciplinary action”.
Accordingly, the Tribunal finds that the claimant was unfairly dismissed and the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant compensation in the amount of €4,400. In calculating the level of the award the Tribunal has taken into account that the claimant was unavailable for work due to a shoulder injury but also took into account that the claimant may have only been unavailable because of his injury to undertake work of the nature he undertook for the respondent as there was evidence that the claimant had undertaken some work since his employment with the respondent terminated.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, was withdrawn during the course of the hearing.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)