Complainant

Respondent

Anonymised Parties

General Operative

Meat Processing Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00011570-001

25/05/2017

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

CA-00011570-002

25/05/2017

The   Respondent operates a meat processing plant.   The Complainant is seeking compensation in respect of a claim of unfair   dismissal and his entitlement to his statutory minimum notice.   The Complainant was paid €9.399 per hour and worked 40 hours a week. He   hasn’t secured a new employment and has been in receipt of Illness Benefit   from the Department of Social Protection between 2/12/2016 and 15/04/2017 and   from 12/08/2017 to date.   The Complainant had the requisite twelve months’ service for the purposes of   bringing a complaint of unfair dismissal which was brought within the six   month statutory period.  The fact of dismissal is not in dispute.

The   Complainant was employed by the Respondent as Operative for some 16 years   from 21^st November 2000 until he was summarily dismissed for gross   misconduct as a consequence of an incident that had occurred on the 25^th   November 2016. The Respondent dismissed the Complainant   by way of a letter of the 23^rd January 2016. The sanction of   dismissal was upheld and confirmed at the conclusion of the appeal hearing on   the 24^th August 2017.     The Complainant has had a number of incidents in the past (in 2015 and 2016).   He received a final written warning on 13^th February 2015. The allegation substantiated in that case   related to   a) clocking in on the wrong clock machine   b) entering production area without wearing the correct health & safety   and food hygiene work wear  c) clocking in a half hour before   scheduled start time.   The final written warning was active for a period of 12 months from the date   it was applied. Following the 12 months period the Respondent removed the   final written warning from the Complainant’s file. However, in the letter of   26^th February 2016 the Respondent informed him that he “reverted to the previous stage of the   disciplinary procedure i.e. written warning”.     Following a random audit on 17^th February 2016 it was found that   the Complainant failed to clock out for his lunch break. As a result,   following a disciplinary hearing on 25^th February 2016 he was   given a final written warning on the 26^th February 2016.

On   25^th November 2016 the Complainant was accused of a) failure to   wear hair net and beard snood correctly b) leaving wash room unlocked and   unattended c) failure to complete correct documentation for knife control in   the evenings.   On 30^th November he was requested in writing to attend an   information meeting the following day. At the meeting the Complainant denied all   allegations. Suspension from Duty letter was given to the Complainant at the   meeting.   The Complainant was invited in writing by letter dated 2^nd   December to an Investigation Meeting on 6^th December 2016. The   Investigation was conducted by JG, Office Manager. During the meeting the   Complainant requested his Manager who was also one of the persons making   allegations against him (JN) to attend, his request was declined. He also   requested that the Investigator goes down to the area where the knife record   sheets are kept to explain the way they are filled in. The Investigator refused.     On 12^th December Notification of the Intention to hold a   Disciplinary Hearing on 16^th December was sent to the Complainant.     On 15^th December (received on 16^th December) a copy of   the Investigation report was forwarded to the Complainant.  The Complainant submitted medical certificate and was unable to attend the   Hearing until 18^th January 2017. Disciplinary hearing was   conducted by CD, General Manager. During the hearing the Complainant denied   the allegations.   By letter   dated 23^rd January 2017, CD informed the Complainant that he was   being dismissed with immediate effect.   The Complainant did not appeal the decision within   the 10 days’ timeframe set by the Respondent. SIPTU on his behalf appealed   the decision on 8^th of March 2017. An appeal hearing was held on   24^th August 2017 and the decision to dismiss was upheld.

Respondent vehemently rebuts the allegation of   an unfair dismissal.   Respondent submits that in April 2014 the Complainant was furnished with a   verbal warning for his failure to wear safety equipment and essential   protective clothing. In January 2015 the Complainant was furnished with a   written warning on foot of removing company property off site without   adequate consent. A month later the Complainant received a final written   warning for clocking in irregularities and further failure to wear   appropriate equipment in line with company policy. This said warning remained   live on the Complainant’s file for a 12 month period. In late February 2016   the Complainant was again found deficient in his clocking in habits and   failing to wear the correct protective equipment in breach of company policy.   Following a further disciplinary investigation and hearing, he was furnished   with a final written warning. At all stages in the previous disciplinary   matters, the Complainant was informed of the allegation he faced, given the   opportunity to bring representation and afforded the opportunity to appeal   the decision reached following the disciplinary hearing.     Another incident occurred on the 25^th November 2016. The   Complainant was alleged to have a) Failed to wear hair net and beard snood   correctly b) Left the boning hall wash room unlocked c) Failed to complete   correct documentation for knife control.

Respondent   noted that, despite the gravity of the allegations in stand-alone situation,   the fact that the Complainant has received several previous warnings for   similar failings showed a complete disregard for company safety standards and   policy.

In line with   procedure, the Complainant was further formally notified of the allegations   and invited to an investigation meeting with representation. On foot of it   being found that the Complainant had a case to answer, he was further invited   to a disciplinary hearing with the plant’s General Manager. Post this hearing   the Complainant was informed that due to his gross misconduct and further,   taking that he had a live final written warning on his file, that he was   being dismissed.

Respondent   maintains that at all times it has followed its own disciplinary procedure and   adhered with the rules of natural justice and fair procedures and furnished   the Complainant with every possible opportunity to amend his errant behaviour   and remain in employment. Unfortunately, the Complainant has continued to   breach company policy.   The sanction of dismissal is proportionate. This is further emphasized by the   fact that the Complainant had a live final written warning on his file and   had previously been sanctioned on several occasions for similar offences.

SIPTU representative on behalf of the   Complainant contends that there were a number of significant   procedural deficiencies with the process conducted by the Respondent.

He claims that the Suspension from Duty letter   was prepared prior to the Information Meeting on the 1^st December   2016 and handed to the Complainant at the meeting and therefore, the   Respondent envisaged no other outcome of the meeting but disciplinary   process. Similarly, an undated Investigation Report was completed on 14^th   or 15^th December 2016. However, a letter informing the Complainant   of the disciplinary hearing was issued on the 12^th December 2016.   Therefore, it is asserted that the Respondent pre-empted the outcome of the   meeting and the investigation respectively.   SIPTU representative questions also whether an adequate opportunity was given   to the Complainant to cross-examine the witnesses in language he understood.

He also points out that the correspondence   from the Respondent to the Complainant was issued in English which is not his   first language.     The Complainant requested CCTV footage related to the events to be reviewed   and that the Respondent reviews other knife control records to explain the   way they are prepared but these requests were denied.  In relation to the events of 25^th November 2016 the Claimant   disputes the Respondent’s version of the events. The Complainant’s   representative submits that the Complainant was approached and challenged by   the Manager about protective clothing after clocking in at around 10.45am but   before he entered the wash room. Moreover, the Complainant maintains that at   the relevant time he was not one of the wash room key holders and that his   knife control record was in order.

In   considering the Respondent’s decision to dismiss the Complainant, a number of   factors or "tests" need to be considered.

Firstly,   it needs to be established whether or not there were sufficient grounds for   the Respondent to initiate disciplinary action against the Complainant.   Secondly, any investigation/disciplinary process applied must be in   accordance with the requirements of fair procedure, due process and natural   justice. Finally, consideration must be given to whether the sanction   emanating from such a process falls within what might be considered a range   of reasonable responses by the employer.

Grounds   to initiate disciplinary action

I   am satisfied, based on the evidence adduced that the Complainant

a)       was witnessed wearing his beard snood incorrectly,

b)       that the washroom door was left unlocked (although it seems that there   is conflicting evidence in relation who was the key holder at the relevant   time) and

c)       that the knife control sheet was not filled in correctly by the   Complainant.

Consequently,   taking all the above into consideration, I am satisfied that the Respondent   had sufficient grounds to initiate investigation process in relation to the   allegations.

Disciplinary process

The   second factor for consideration relates to the conducting of the disciplinary   process.   In relation to procedural fairness, I am guided   by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code   of Practice on Grievance and Disciplinary Procedures) which provides that the   procedures for dealing with disciplinary must comply with the general   principles of natural justice and fair procedures. The contractual and   constitutional rights to fair procedures are also well established (In Re: Haughey [1971] IR 217).

I note that the Complainant has been furnished   with written Disciplinary Procedure translated into his native language.     Point 14 of S.I. No.   146/2000 stipulates that “Warnings should be removed from an   employee's record after a specified period and the employee advised   accordingly”.   The document provided by the Respondent correctly points out that “5. All warnings issued under this   procedure shall have duration of twelve months from the date of issue.”   It provides however for an unusual course of action whereby “At the twelve months an employee will   revert back to the previous stage of the disciplinary procedure”. The   document further clarifies the possible reversion from Final Written Warning   and Suspension Stage to the Verbal Warning Stage at maximum (Stage 1) after 2   years. I do not believe that this was   the intention behind point 14 of the Code of Practice on Grievance and Disciplinary   Procedures.

I   would have some concerns that the notifications of the information and   disciplinary meetings may not have been consistent with what one would   consider as best practice in this regard.

The   evidence suggests that the Complainant was informed on 30^th   November 2016 of the Information Meeting that was due to take place on the   next day. Similarly, letter requesting his presence at Investigation Meeting   on 6^th December was posted on 2^nd December (Friday) and   would be received, at best, on Monday 5^th December. Despite the   fact that I believe the Complainant was aware of the reason for the meeting,   the short notice was less than ideal in terms of preparation.

I   note also that the letters of 12^th December 2016 and 12^th   January 2017 in relation to the Disciplinary hearing arrangements stipulate   that “These arrangements have been made   in consultation with you and I would remind you that the hearing may proceed   in your absence”. As there was telephone contact between the Parties made   around the 12^th of January I accept that preliminary decision re:   hearing date of 18^th January 2017 could have been reached.   However, it is clear that the Complainant was not consulted in respect of the   date of 16^th December.

I   note that while the Respondent encouraged the Complainant to be accompanied   at the interview and subsequent disciplinary hearing the Respondent also   pointed out to him in the Suspension from Duty letter that “you are not to discuss any aspect of the   investigation with anyone other than named in this letter”.   The Complainant exercised his right to representation and was accompanied at   the Investigation Meeting on 6^th December 2016 by the Shop   Steward.

I   would also have some concerns in relation to the matter of suspension.   The case   of The Governor and Company of the Bank of Ireland-v-James Reilly took a   close look at suspending the employee on full pay in this case. The High   Court recognised that suspending someone-even on full pay-is a very serious   measure with potential reputational damage which may never be overcome, even   if the employee is subsequently found to be not guilty of the allegations. It   held that a suspension should only be imposed “after full consideration of   the necessity for it pending a full investigation” of the issues.

The Court   identified four circumstances where it would be justified:

1.   To prevent repetition of the conduct complained of;
2.   To prevent interference with evidence;
3.   To protect individuals at risk from such conduct; or   
4.   To protect the employer’s business and reputation.

In   the case before me the reason for the suspension given to the Complainant was   not linked to any of the above or to the seriousness of the allegations but “because he is already on a final written   warning”.

Second   difficulty I would have with the matter of suspension is that the Suspension   from Duty letter was handed to the Complainant during the first, Information   Meeting. It is therefore clear that the decision to suspend the Complainant   was taken without the Complainant being afforded opportunity to defend   himself.

Similarly,   it is worrying that the General Manager (GM) of the Respondent wrote to the   Complainant to “formally advise you   that you are required to attend a disciplinary hearing as detailed below…” on 12^th December 2016, prior to   the Investigation Report being   concluded. This may suggest that,   again, the Responded pre-empted the outcome of the investigation. Moreover,   in the letter GM writes “A copy of the   evidence the Authority will be presenting has been forwarded to you.” I   note that the Respondent has sent by post copies of minutes of meetings and   interviews to the Complainant shortly after they have taken place. However,   the key piece of evidence, namely the Investigation Report was forwarded on   the 15^th December and was received by the Complainant on the day   of the planned disciplinary hearing.   I note that the Complainant submitted a medical certificate and was not in a   position to attend the meeting. Nevertheless, I find the manner in which the   above matter was handled concerning.

I   would also have some concerns in relation to the matter of the knife control   records. It seems that each of the two employees, the Complainant and his   work colleague MP had difficulty with the other’s method of populating the   sheet. For that reason rather than completing one spreadsheet each of them   had a separate one. The Respondent outlined at the hearing that the   procedures in relation to record keeping is extremely important. Yet, it   seems that there was an ongoing unaddressed issue between the two employees,   which consequently led to one of them being disciplined.

I   note that the Respondent provided interpretation over the phone or in person   where possible at the meetings with the Complainant.

With   the exception of the request not to discuss the matter included in the   Suspension Letter the Complainant was provided with opportunities to respond   to the allegations and make representation.

The   Complainant was given access to an appeal process. He didn’t exercise his   right to appeal within the time frame outlined in the Dismissal Letter.   Nevertheless, the Respondent accommodated his late request submitted some two   months later.

Based   on the above, I am not satisfied that, despite the Respondent making some   effort, the disciplinary process was   conducted in accordance with the requirements of fair procedure, due process   and natural justice.

Proportionality of   Sanction

The final test for   consideration relates to the proportionality of the sanction and whether or   not it falls within the range of reasonable responses that might be expected   in the circumstances.

As to whether there were substantial grounds for   the Complainant’s dismissal on the ground of gross misconduct, the applicable   legal test is the “band of reasonable responses” test, as   comprehensively set out by Mr Justice Noonan in the context of Section 6 of   the Unfair Dismissals Act, 1977 in the High Court case of The   Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241.

Of significance in my view is the reference by the   Respondent to previous incidents “it is   my decision that your actions constitute an act of gross misconduct due to   the accumulation of previous misconduct”. The Respondent goes on “it is my decision to terminate your   employment with immediate effect from the date of this letter under Section   3.2. Disciplinary procedure; Dismissal (Stage 4); If, following a period of suspension   without pay or a final written warning an employee is guilty of further   breaches, the employee will be dismissed; of the company handbook”

I note that there were   three allegations of misconduct against the Complainant:

a)      failure   to wear hair net and beard snood correctly

b)     leaving   wash room unlocked and unattended

c)      failure   to complete correct documentation for knife control in the evenings.

The   Investigation Report concluded that the Complainant was in breach of company   hygiene policy by not wearing his beard snood correctly and left the wash   room unlocked and unattended. The Investigator did not conclude definitively   whether or not the Complainant failed to complete knife control paperwork.

The Respondent’s Disciplinary Procedures include   a list (“not necessarily comprehensive”)   of 19 examples of gross misconduct. None of the above breaches or breaches of   a similar nature are included.

I note that the Respondent’s Definition of   Hygiene Policy states that the hygiene rules “must be observed”. However, neither of the documents indicates   that breach of hygiene policy constitutes gross misconduct.

The established jurisprudence in relation to   dismissal law in this jurisdiction takes a very restricted view of what   constitutes gross misconduct justifying summary dismissal. This is evidenced,   for example, by the determination of the Employment Appeals Tribunal in Lennon   v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair   Dismissal Cases and Commentary (IBEC,

1996)) wherein the Tribunal states: ‘Section 8 of the Minimum Notice and Terms   of Employment Act 1973 saves an employer from liability for minimum notice   where the dismissal is for misconduct. We have always held that this   exemption applies only to cases of very bad behaviour of such a kind that

no   reasonable employer could be expected to tolerate the continuance of the   relationship for a minute longer; we believe the legislature had in mind such   things as violent assault or larceny or behaviour in the same sort of serious   category. If the legislature had intended to exempt an employer from giving   notice in such cases where the behaviour fell short of being able to fairly   be called by the dirty word ‘misconduct’ we have always felt that they would   have said so by adding such words (after the word misconduct) as negligence,   slovenly workmanship, bad timekeeping, etc. They did not do so.’

I find that the grounds for dismissal in the case   before me considered in the context of the events of 25^th November   2016, do not come within the category of ‘very   bad behaviour of such a kind that no reasonable employer could be expected to   tolerate the continuance of the relationship for a minute longer’,   described above by the Tribunal.

In any event, the evidence before me was that the Respondent   allowed the Complainant to continue working for some five days on and after   25^th November 2016 before he was suspended.

It follows, from my discussion above that the   Complainant’s failure to wear his beard snood correctly and leaving the   washroom unattended and unlocked cannot reasonably be considered to amount to   gross misconduct justifying the imposition of a sanction of dismissal. In   this regard, therefore, I find that the sanction of summary dismissal imposed   by the Respondent was disproportionate and unwarranted in all the   circumstances.

Undue Weight Placed on Previous Incidents   Involving the Complainant

As stated previously, the Complainant had had a   number of incidents in the past (in 2015 and 2016).

It is evident that the decision to dismiss the   Complainant was informed to no small extent by those previous incidents. It is confirmed by the wording of the   decision “it is my decision that your   actions constitute an act of gross misconduct due to the accumulation of   previous misconduct”.

I note that the Respondent relies on Charles   Sukore v Carphone Warehouse Ltd UD604/2015 in support of the “accumulation of   previous misconduct” matter. I reviewed the case and it is my opinion that it   does not apply in the case before me. Moreover, in DHL Express (Ireland) Ltd v Michael Coughlan UDD1738 (decision of 28^th   July 2017) the Labour Court criticised the Claimant (DHL) for placing undue   weight on previous incidents.    

In hearing this claim,   it is not a matter for me to decide on the issue of guilt or innocence of the   Complainant. The question for me as Adjudication Officer is whether,   following a fair and transparent investigation and disciplinary process, the   Respondent’s decision to dismiss was one that a reasonable employer might   have made. (EAT – UD690/2012).  

For the aforesaid reasons, I find this complaint to be   well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977 and   conclude that the Complainant was unfairly dismissed by the Respondent.

Section 7 of the Unfair Dismissals Act 1977 sets out the   various forms of redress including reinstatement, re-engagement and financial   compensation which may be awarded and relevant to the instant case where   compensation only is sought, Section 7(1) (c) (i) of the Act provides:   “…if the employee incurred any financial loss attributable to the dismissal,   payment to him by the employer of such   compensation in respect of the loss (not exceeding in amount 104 weeks   remuneration in respect of the employment from which he was dismissed   calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the   circumstances,…”

Section 7(1)(ii) of the Act provides: “…   if the employee incurred no such financial loss, payment to the employee by   the employer of such compensation (if any, but not exceeding in amount 4   weeks remuneration in respect of the employment from which he was dismissed   calculated as aforesaid) as is just and equitable having regard to all the   circumstances…”

Section 7(2) sets out the factors which should be   considered when determining the amount of compensation and of most relevance   to this case is the measures adopted by the employee to mitigate his loss.

The Complainant submitted four documents confirming that   he applied for three jobs in total and inquired about one in March 2017.None   of the jobs related to his work qualifications and experience with the   Respondent.

There were conflicting statements given at the hearing.   Complainant’s representative stated that he has secured a new employment.   However, the Complainant himself stated that he is in receipt of Illness   Benefit from the Department of Social Protection since the date of dismissal and   therefore unavailable for work.

It was subsequently clarified that the Complainant has   been in receipt of Illness Benefit between 2nd December 2016 and 15^th   April 2017 and form 12^th August 2017 to date.

Therefore I consider it just and equitable in all the   circumstances to award the Complainant €751.92 (2 weeks salary at €9.399 per   hour x 40 hours), subject to any lawful deductions, within 6 weeks of the   date of this decision.

The Complainant asserts that he did not receive his statutory entitlement   under the Minimum Notice & Terms of Employment Act, 1973.

The Respondent submits that on   foot of the fact that the Complainant was summarily dismissed for gross   misconduct he is not entitled to his statutory minimum notice.

The evidence before me confirms that the Respondent   dismissed the Complainant with immediate effect and did so without adhering   to its obligations under the Minimum Notice and Terms of Employment Act, 1973   which under Section 4.2 (e) requires eight weeks’ notice if the employee has been in the   continuous service of his employer for fifteen years or more.

In accordance with Section 4(2) d of the Minimum Notice   and Terms of Employment Act, 1973 I find that the Complainant was entitled to   eight weeks’ notice as she has over 15 years’ service at the time of his   dismissal.   In accordance with Section 12(1) of the Act I direct that the Respondent pay   the Complainant compensation of €3,007.68 amounting to eight week pay within   42 days of the date of this decision, subject   to any lawful deductions.

Summary dismissal, minimum notice, gross misconduct