Complainant

Respondent

Anonymised Parties

A Baker

A Bakery

Act

Complaint Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00009150-001

18/01/2017

Complaint    seeking adjudication by the Workplace Relations Commission under Section 11    of the Minimum Notice & Terms of Employment Act, 1973

CA-00009150-002

18/01/2017

The complainant is employed in   a commercial bakery as a baker. He commenced employment on September 13^th   2001 and was paid €586 per week. His employment was terminated on July 22^nd,   2016 following disciplinary action.

The respondent is a bakery and   operates to very high standards of food safety. It has to meet the demands of   both official regulatory bodies and the quality standards of its customers.

On the key issue the respondent   insisted that the water source and the bucket below were part of the food   preparation process for some of its products. The respondent found food (raisins)   in the bucket which it believed were being consumed by the complainant.

At the initial meeting with the   respondent’s Quality Manager he was told this and she gave evidence both of   having told the complainant and to the effect that it was part of the food   preparation process.

When the complainant was   confronted about the issue he said that he had been hungry.

The water fountain closer to   him was perfectly usable and the water in it was drinkable. He made no   mention of this at the disciplinary hearing. In fact the water to that outlet   is filtered and chilled and sent for analysis on an annual basis. There have   been no complaints from other employees about the water quality.

At the initial meeting with the   complainant he accepted the facts as put to him and could offer no   explanation for his actions. He had been fully trained and updated in the   required standards. There were two issues; one was any use of the hose and   also the application of the complainant’s mouth to the hose feeding the   bucket below.

The complainant had been the   subject of a final written warning in August 2015 for a food safety related   breach.

The complainant was charged   with breaches of food safety requirements. It was alleged that he drank   directly from a pipe which drained into a bucket which was a part of the food   production chain.

He does not deny that he did so   and that he made direct oral contact with the pipe which was feeding the   bucket below.

However, he says that the water   was not destined for the food preparation process.

He also says that water in the   drinking fountain was not potable.

In the course of the   disciplinary proceedings he acknowledged that his actions were a mistake but   claimed that other breached of food safety regulations occurred elsewhere on   the premises

I have considered all the relevant evidence that was laid   before me, both before and in the course of the hearing.

There are three ‘pillars’ which guide the adjudicator to a   decision in a complaint of unfair dismissal.

The onus under the Act falls on the employer to justify   the dismissal once it is accepted that a dismissal took place.

In order for a dismissal to be fair there must be some   significant grounds to support disciplinary proceedings or other actions   against the employee related to performance or conduct. In this case breach   of food safety standards in a food production company is a very serious   matter both from the point of view of regulatory compliance and commercial   customers; in both cases for the same reason ultimately

Secondly, in our employment rights system there are well   established procedural obligations placed on an employer who is carrying out   disciplinary action in order to protect the rights of the employee or other   parties affected and ensure that justice is done.

These are not particularly onerous and are generally well   known. They are referred to by such terms as fair procedure and natural, or   constitutional justice.

Many, if not most cases are argued on   the basis of most facts not being in dispute and the outcome normally turns   on alleged inadequacies in the procedures and/or the appropriateness of the   sanction.

In this case, while there is a   conflict in the evidence about the use to which the water in the bucket is   put I accept the respondent’s version.

Finally, there is the matter of   sanction which must fall within what is described as a range of reasonable   responses by the employer.

There has been a decision of the EAT   in Looney and Co v Looney UD843/194 on which the following view of Dr Mary   Redmond to the same effect that has been expressed;

It is not for the EAT to establish the guilt or   innocence of the claimant nor is it for the EAT to indicate or consider   whether we, in the employer’s position, would have acted as it did in its   investigation or concluded as it did or decided as it did, as to do so would   be to substitute our own mind and decisions for that of the employer. Our   responsibility is to consider against the facts what a reasonable employer in   his position and circumstances at that time would have done and decided and   to set this up as a standard against which the employer’s actions and   decisions are to be judged’.

As will be clear from the text this does not entirely rule   out intervention by an Adjudicator but sets the standard to be applied as the   actions of ‘what a reasonable employer   in his positon and circumstances at that time would have done…’

That is the standard I will apply.

In this case the complainant admitted to his actions but   sought to diminish their significance.   I do not accept his submission on this point. He had been fully   trained in the food safety standards that were required and acknowledged at   the hearing that he had made a mistake.

In that context, the respondent had adequate grounds for   concern and a sufficient basis to launch the disciplinary process.

As for that process itself I detect no flaw in how it was   conducted.

There was an investigation, initially by the respondent   Quality Manager on the day of the incident (she had actually observed the   incident), and the disciplinary hearing was convened on July 20^th   for the following day.

The complainant was given details of who would attend and   his right to be represented. He was also put on notice of the potential range   of sanction in the event of an adverse finding.

In   my view, and having regard to the criteria referred to above the respondent   has discharged the burden of proof and has justified the dismissal which I   find to have been fair.

Regarding   his complaint under the Minimum Notice and Terms of Employment Act it was   submitted on his behalf that he was not charged with Gross Misconduct,   justifying summary dismissal and was entitled to be paid his statutory   notice.

Gross Misconduct needs to be   approached with care. While there is certain conduct which clearly falls within   its ambit; e.g. violence, theft, there will be other conduct where it is less   definitively so.

Taking into account the fact   that serious misconduct may suffice to justify termination of employment it   is not always clear why employers opt for the more serious charge if it might   fall within the contended area. It may be particularly problematic where the   disciplinary decision maker’s discretion is fettered in respect of dismissal   being the only sanction where a charge of gross misconduct has been erroneously   preferred.

In this case I find that he is   entitled to be paid notice based on his service from December 2006 to date of   his dismissal on July 22^nd which is four weeks’ notice.

For the reasons set out above I   do not uphold complaint CA-00009150-001 under the Unfair Dismissal Act 1977   and that complaint is dismissed.

Complaint CA-00009150-002 under   the Minimum Notice and Terms of Employment Act 1973 is upheld and I award the   complainant four weeks’ pay at €586.00 subject to the usual statutory   deductions.

Unfair dismissal, notice payment