CORRECTING ORDER
EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1541/2013
CLAIM(S) OF:
Sajjad Ahmad Saeed
-claimant
against
Supermac's Ireland Limited T/A Supermac's
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. N. Ormond
Mr. P. Trehy
heard this claim at Carlow on 1st March 2016 and 20th May 2016
Representation:
Claimant: Mr Peter McNamara, Laois Citizens Information Service, Kellyville Centre, Kellyville Park, Portlaoise, Co. Laois
Respondent: Ms. Mairead Crosby, IBEC, Gardner House, Bank Place, Charlotte Quay, Limerick
Note:
This Order corrects the original order dated 20th July 2016 and should be read in conjunction with that Order.
Due to an administrative error the previous Order was not a comprehensive and full order and was not intended to issue in the format which it did. This Order will correct that error.
Background:
A preliminary Determination of the Tribunal previously issued to the parties in which the Tribunal extended the time for the claim. Accordingly, the Tribunal proceeded to hear the substantive matter on the 1st March 2016.
Summary of evidence:
A translator was provided by the Tribunal for the hearing.
The respondent operates a chain of fast food restaurants. The claimant was employed in one such store from September 2009 to November 2012. The General Manager received a complaint from another employee, CB, regarding the claimant’s behaviour on the 29th October 2012. The Tribunal viewed CCTV footage for that date.
The General Manager gave evidence as to how he investigated the matter. The allegations as reported to him by CB were that the claimant pushed CB on two occasions during service. He queried with CB if she believed this was done on purpose and she told him it was not on purpose but because service was very busy on the night in question. CB wanted the General Manager to address the issue with the claimant and he did so. The claimant told him that he apologised if this had happened during service. The General Manager viewed the CCTV but he did not see any evidence of the claimant pushing CB intentionally.
Subsequently, CB told the General Manager that she wanted an apology from the claimant. A meeting was arranged and the claimant apologised. However, CB also provided the General Manager with a letter regarding the allegations and he queried with her whether she was seeking to have a formal investigation carried out but CB informed him that she wished for the claimant to be issued with a written warning.
A further meeting was conducted on the 2nd November 2012 and given the content of the written complaint received from CB, the General Manager had a note taker present for this meeting. The General Manager disputed that the respondent had the entirety of the notes from this meeting contained within their booklet of documents. At the meeting CB was provided with a written letter of apology from the claimant. Both the claimant and CB seemed satisfied with the outcome of the meeting.
At the time of these events PD, the Area Manager, was on annual leave. Upon his return he told the General Manager that he was discontent with the general performance of the store and the handling of CB’s complaint. He shouted at the General Manager and gave him no opportunity to reply. Subsequently, PD informed the General Manager that he was re-investigating CB’s complaint but the General Manager was not given the opportunity to outline the steps he had undertaken. PD accused the General Manager of favouring the claimant as they resided in the same area. The General Manager was issued with a warning for the manner in which he had conducted the investigation into the allegation against the claimant.
PD re-investigated the matter and dismissed the claimant on grounds that he had physically shoved CB during service.
The Human Resources Manager, Ms. G, gave evidence that PD informed her that he had concerns that a complaint raised within the Portlaoise store was “brushed under the carpet” due to the General Manager’s friendship with the claimant and that a complaint brought by CB had not been dealt with properly for this reason.
ovember 2012. They discussed the complaint brought by CB to which there were two aspects:
- That the claimant brushed against her in an unusual way
- That the claimant physically shoved CB
Ms. G believed the details of the allegations were outlined in writing by CB at the request of PD.
When discussing CB’s complaint the claimant apologised for shoving CB but later in the meeting he denied it had happened. Ms. G described it as a “confused” type of meeting.
It was Ms. G’s evidence that there were three warnings already in place on the claimant’s file and that a common theme prevailed as regards the claimant’s treatment of other staff, in particular female staff members. It was her evidence that the claimant was issued with a final written warning in June 2012. An earlier warning issued to the claimant was missing from the employee file. When she raised the warnings with the claimant at the appeal meeting he began to dispute them.
A document submitted by the respondent showed that a warning was issued to the claimant in June 2012. However, under the section detailing the type of warning being issued both boxes for second written warning and final written warning were selected. Ms. G stated that the company does not provide second written warnings.
It was the claimant’s evidence that when he signed this document he believed he was being issued with the second of three warnings that could be given to him prior to a decision to dismiss.
It was the General Manager’s evidence that he is aware and involved in any warnings provided to staff and he was unaware of any warning given to the claimant on the 10th June 2012.
In conducting the appeal Ms. G also met with CB on the 4th December 2012. CB felt she was “up against the system” and fearful of losing her job. The minutes of this meeting were submitted to the Tribunal.
Ms. G spoke with PD but not the General Manager when carrying out the appeals process. CB felt she was "up against the system" and fearful of losing her job. The minutes of this meeting were submitted to the Tribunal.
Ms. G upheld the decision to dismiss the claimant. She was aware there had been previous difficulties with comments made by the claimant to other employees and one such comment was noted in the meeting PD conducted with the claimant on the 10th November 2012. The context left Ms. G uncomfortable, she considered the respondent’s duty of care to all employees, the lack of remorse or regret on the part of the claimant and the fact that the claimant apologised, retracted that apology and then later denied the matter. Ms. G felt nothing was learned and there could be further possible issues.
The claimant was informed by letter dated 5th December 2012 that the decision to dismiss him was upheld on appeal. The letter stated:
On reviewing CCTV, I was disappointed to note your behaviour towards CB, particularly in relation to how you purposely move her from where she is standing at the till, in order for you to stand there, without any acknowledgment or apology.
It was the claimant’s evidence that he did not recall bumping into CB during service on the night in question but it was possible that he had due to how busy it was on the night in question. He was taken aback when the General Manager told him a complaint was received against him and he apologised to CB if something had occurred unintentionally during the course of service.
In relations to comments noted at a meeting with PD on the 10th November 2012, the claimant stated that he had asked for the notes to be amended as he was unhappy with the content but the amended notes were never returned to him. He did not sign the notes as given and PD became angry with him.
The claimant gave evidence of his financial loss arising from the dismissal and efforts to mitigate that loss.
Determination:
Both parties and the Tribunal were significantly disadvantaged by the unavoidable absence of evidence from some of the principal participants in the process that led to the claimant’s dismissal.
The claimant took issue with the content of some of the minutes produced by PD (who was not available to attend before the Tribunal) and advised PD directly at the time that he was dissatisfied but gave evidence that his observations were ignored.
The claimant’s General Manager at the time gave evidence of his informal approach to dealing with the complaint against the claimant and his belief that the matter had been successfully resolved to the satisfaction of all involved. When it was pointed out to him that the handwritten meeting note of the 2nd November suggested that the allegation against the claimant was of bullying and that the “injured party” was not happy with the claimant’s apology, the Tribunal was informed by the witness that the notes of that meeting ran to 3 or 4 pages and that, taking a single page out of that context, gave a wrong impression and an incomplete account.
On balance the Tribunal accepts that the General Manager, at the time, believed that he had resolved the issue, however, he may have been mistaken. In all of the circumstances and though the Tribunal does have some reservations as to PD’s motivation for doing so, the Tribunal concludes that it was reasonable for PD to initiate a fresh investigation and process.
PD launched an investigation and the Tribunal is satisfied that it was not in response to a complaint from the “injured party” but that he approached her. Though dated 29th October 2012, the Tribunal had evidence from the respondent’s Human Resources department that the “injured party’s” written complaint was submitted at the request of PC and this was some time after 29th October 2012.
The Tribunal has grave concerns about the manner in which both investigation and disciplinary processes were conducted. There are significant issues around transparency. PD who initiated the investigation at his own initiative, then proceeded to conduct the investigation himself and then made the decision to dismiss. In the particular circumstances of this matter, the Tribunal finds this to be wholly unacceptable.
The Tribunal viewed the CCTV evidence relied upon by PD and is of the opinion that far too much weight was given to this by PD in his deliberations. The Tribunal saw little of consequence in the footage. Having then decided that there had been a physical shove on the “injured party” by the claimant, PD then concluded that the claimant should be dismissed for that alone. The letter of dismissal reads:
“The claim of a physical shove on service has been upheld”
From the footage one could not conceivably establish the true level of contact or whether it was deliberate or simply incidental to the claimant discharging his duties in a very busy and demanding environment. Rude perhaps, but certainly not enough to deprive the claimant of his employment.
The Tribunal is satisfied that the procedures here had serious and fundamental shortcomings and that the decision to dismiss was not justifiable
The Tribunal further considers that the opportunity for the respondent to reverse the unfair dismissal was not taken on the internal appeal. The Tribunal is not satisfied that Ms. G acted independently and suspects that there was far too much communication between her and PD around the appeals process. It was completely unacceptable that Ms. G would assure the “injured party” that the claimant would not be returning to his employment before the appeals process had been concluded.
The Tribunal is satisfied that the claimant was unfairly dismissed. The process itself was procedurally flawed and the decision arrived at was unfair.
The Tribunal awards the claimant the sum of €25,000 by way of compensation under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)