UD1764/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                       CASE NO.

Aloysius Hynes – claimant                                                               UD1764/2014

against

Rosderra Irish Meats Group t/a Rosderra Roscrea – respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Ms. K. T. O'Mahony B.L.

Members:        Mr. J. Hennessy

                        Mr F. Dorgan       

heard this claim at Thurles on 24th March and 16^th June 2016

Representation:

Claimant:         Mr John Madden BL instructed by Michael J Breen & Co. Solicitors,

                        Main Street, Roscrea, Co Tipperary

Respondent:    Mr John Brennan of IBEC West,

                        Ross House, Victoria Place, Galway

The determination of the Tribunal is as follows:

Summary of Evidence  

The respondent company produces pork. The claimant was a supervisor on the leg boning line and had 25/26 employees reporting to him. Production runs from 7.00am to 4.00pm. It was the claimant’s responsibility to keep his production line running every day and he managed absenteeism and leave. The company is regularly audited and customers visit the plant.

The claimant commenced employment in another of the respondent’s plants from 2009 and started as a supervisor in Roscrea in 2005. When he took over the leg line the targets and yields were down and within a short period he had increased output and yields. He had a falling out with supervisor DM about trays falling onto the floor. DM passed derogatory personal remarks about him. The claimant kept to himself. He got on with all 350 employees on the plant except two supervisors.  

On 4 June 2014, a representative of a major customer (AB) visited the plant. He wanted to change the leg specification and to review it with the manager and supervisor. AB gowned up to visit the facility and the production manager (PM) introduced him to the claimant on his return from lunch. However, in front of AB, the claimant refused to engage in the review of the new specification/process. PM was annoyed and embarrassed. Such behaviour jeopardised the respondent’s relationship with its customer.

PM’s evidence was that there had been issues with the claimant over the previous few months: he had the highest number of customer complaints in the company, he failed to have loss control meetings and to write out standard operating procedures (SOPS) and he was not communicating with other supervisors.                                                          

By letter of 5 June 2014 PM invited the claimant to a “disciplinary”/investigation meeting on 6 June to offer an explanation for: his behaviour on 4 June and for other ongoing issues which included his failure to complete the new standard operating procedures (SOPs), the high level of customer complaints in his department, his failure to conduct loss control meetings and his attitude since GHR (the group HR Manager) had issued him with a letter dated 17 October 2012. Following a request by the respondent to implement changes this letter advised the claimant that it is part of his duties to implement specification changes and reasonable changes to process and to do so without requesting additional remuneration. It was common case that the letter of 2012 was not a disciplinary matter.

Investigation meetings were held on 6^th, 9^th and 10^th June. During this process the claimant was suspended on pay pending further investigation. The claimant raised the option of being made redundant but the respondent’s position was that a redundancy situation did not exist and in any case the respondent does not reward bad behaviour. By letter of 11^th June the claimant was invited to a disciplinary meeting on 17^th June. The delay was in part due to the fact that the claimant sought two documents from the respondent. The disciplinary meeting on 18^th June was conducted by the HR manager (HRM) and the operations manager (OM) was also present as was a shop steward on behalf of the claimant.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

There was a dispute between the parties as to what was discussed at the disciplinary meeting on 18^th June, its outcome, the contents of HRM’s letter of 18 June to the claimant and whether the claimant was given a copy of the letter. The respondent’s position was that the claimant gave assurances that he would address the issues set out in the letter of 5 June 2014 and that he would ensure that there would not be a recurrence of the 4 June incident. HRM’s position was that he issued the claimant with a stage 4 suspension without pay for one week ending on 23^rd June. It was common case that PM drafted the letter of 18^th June in the presence of the claimant and that both men had signed the document. OM felt that there were two signatures on the letter when it was brought to him for his signature. Minutes were not taken at the meeting of 18^th June 2014.

The claimant’s position was that he did not know that he was on a stage 4 suspension. HRM had not provided him with a copy/original of the letter of 18^th June, as promised. The letter he had signed for HRM had only one paragraph, about SOPs and loss control meetings, rather than the five in the letter produced by the respondent in evidence. The meeting was held in the OM’s office. HRM said they would “park” the 4 June incident and would discuss SOPS and loss control. HRM told him he would get a slap on the wrist, that a new factory was opening across the road and he did not want to lose him. HRM was “all praise, all nice” at the meeting. OM told him he would get a final written warning but the claimant objected to a final written warning for failing to write up SOPS. OM then told him he would be issued with a first written warning and three days suspension without pay. The claimant took two days’ leave immediately following the three days’ suspension. He was surprised to be suspended without pay as he never received a stage one two or three warning. PM and the claimant then went to HRM’s office where HRM typed a letter containing one paragraph about SOPs and loss control and the claimant signed it. The first time the claimant saw HRM’s letter of 18^th June was when his solicitor received documents under his FOI request. The letter the respondent had produced in evidence was not the one he had signed and the purported signature was not his.

The claimant felt the respondent was throwing everything at him. He did not conduct loss control meetings as he needed an interpreter. He had asked PM on numerous occasions for an interpreter but every time he asked he was told the interpreter was not available. The claimant had only had two English speaking workers on his line. There was very little loss on his line. It was not true that he had the highest number of customer complaints. The claimant denied HRM’s assertion that he had one-to-one meetings with him regarding customer complaints. There was no evidence or record of any such meetings before the Tribunal. PM denied the claimant’s assertion that he had a clean disciplinary record up to June 2014 and maintained that he had ongoing issues over time.

As regards the incident with AB, the claimant’s position was that AB and PM were present when he had returned from his lunch break. PM asked him to bone a few legs. He told them that he would not. He explained to the Tribunal that M, who does specifications, was available to do it. On an earlier occasion, when M was off, he had boned a leg for AB and he was told he had taken off too much meat. PM denied that it was part of M’s duties to do specifications for a customer. The claimant was adamant that M (an engineer) did specifications and yield tests.

The claimant returned to work on 23^rd June. His evidence was that he was short gloves and three men that morning and the line was down for forty minutes while he got the gloves and the three replacements from supervisor MU’s line. On 24^th June 2014 he started one boning line but was short two skilled boners for the other line. There were skilled boners on DM’s line but there would be a row if he took them. He made three calls over the tannoy including a call to OM and PM. OM came and got the replacements for the line. The tray return was also broken. The claimant felt he was being set up. There is downtime every day. He did not know of any supervisor who had been disciplined for downtime. While the claimant had a set allocation of workers he needed to find two more every morning.

PM’s evidence was that at 7.35am on 24^th June it was brought to the attention of PM that the claimant’s line was down. This was significant as production starts at 7.00am. It was the claimant’s responsibility to keep the line in production. He was one person short. He should have contacted other supervisors to ask if they had surplus staff. PM or HRM, if contacted, would have freed up a member of staff to help. The claimant is an experienced butcher and could have done production himself. It was within the claimant’s capacity to maintain production but he allowed the line to stay down for 35 minutes without taking action. PM went to the boning hall and within two or three minutes got a man from the shoulder line and production started. Production is paramount.

There was a conflict of evidence as to whether the disciplinary meeting was held on 24^th or 25^th June. The claimant’s position was that at 2.25 pm on 24^th June PM told him that HRM wanted him in the office and he did not know why. HRM, OM and a senior shop steward were in office when he got there. HRM told him he was fired for not having started the line and his attitude. The meeting lasted about five minutes. He explained to them that he was two men down. By letter of 30^th June 2014, HRM confirmed his dismissal for failure to remedy the downtime for a period of up to 35 minutes and stated that this was “a deliberate ploy to undermine production standards and requirements” of his department.

PM’s evidence was that supervisors sort problems among themselves but the claimant comes to him with problems. He had not come to him that morning. PM accepted that downtime occurs on lines but it does not last for 35 minutes. PM agreed that the particular downtime was not a catastrophe and cost the company around €70.00. It was a serious issue because the claimant did not look for help. PM could not dispute whether the claimant had sought help over the tannoy. He had not heard it. The claimant told him said that it was not his job to maintain the manning of the line. OM did not hear the call over the tannoy; he normally goes around the plant in the morning. OM felt that the claimant had been dismissed for his attitude rather than downtime.

A witness on behalf of the claimant, who had been interposed early in the respondent’s case, gave evidence that he was at work on 24^th & 25^th June and that the claimant was at work on 24^th but he did not see him on 25^th June.

The claimant’s appeal was heard by GHRM. He upheld the dismissal as the claimant had failed to carry out his duty seek replacements and man the lines. At the appeal hearing the claimant kept making the point that it was a set up and that PM was out to get him  

The claimant was not a member of the trade union and as the TU representative of his choice was absent a shop steward selected by the respondent had been present at the meetings and a senior shop steward was present at the meeting on 24^th/25^th June. The claimant was accompanied by the shop steward of his choice at the appeal meeting.

Determination:

There were conflicts of evidence on several issues in this case. These include but are not limited to whether the claimant was short one or two boners on the morning of 24^th June, whether the non-availability of gloves was on 24^th or 25^th June and similarly whether the disciplinary meeting, which culminated in the claimant’s dismissal, was held on 24^th or 25^th June.

Under section 6 of the Unfair Dismissals Acts 1977 to 2007 the onus of proof in an unfair dismissal claim rests on the respondent. The failure to take minutes of the meetings, and in particular of the final meeting on 24^th or 25^th June was a serious handicap for the respondent in this case in seeking to discharge the burden placed on it under the Acts.  

The Tribunal notes that in the earlier process that occurred between 5^th and 18^th June the respondent notified the claimant in writing of the upcoming investigation and disciplinary meetings. There was no evidence of similar notification for the disciplinary meeting held in late June. The Tribunal finds on the balance of probability that the disciplinary meeting with the claimant was held on 24^th June 2014 and accepts the claimant’s version of that dismissal meeting. The respondent failed to investigate the events of that morning or to adopt fair or any procedures in effecting the dismissal. There was no prior notification of the meeting or of its purpose or any meaningful or any discussion at that meeting. The Tribunal finds that the dismissal was procedurally unfair.

For these reasons the claim under the Unfair Dismissals Acts 1977 to 2007 succeeds. Compensation is the appropriate remedy in this case and the Tribunal awards the claimant the sum of €38,000.00 under the Acts.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)