UDD1821

The Appellant commenced employment with the Respondent in April 2012 and was dismissed on 31^stAugust 2016. The letter of dismissal referred to an incident on 22^ndAugust 2016 and indicated that due to the serious nature of the Appellant’s actions on that date the Respondent was left with no option but to terminate the employment of the Appellant.

The fact of dismissal is not in dispute.

Summary position of the Respondent

The Respondent submitted that as a food company it is very strict as regards food safety and hygiene. All staff receive training on the importance of personal hygiene, Hygiene law, Hygiene code of practice, food contamination and poisoning, cleaning programmes / management, Importance of ‘clean as you go’ and on HACCP. The Appellant was certified following completion of a training course in Health and Hygiene Awareness in the Bakery Trade in 2013.

The Respondent’s disciplinary policy specifically provides that serious misconduct which could warrant immediate dismissal includes a breach of a rule that ‘No food, drink, or chewing gum is permitted anywhere within the bakery production areas’. That rule is posted on signs throughout the food production and bakery areas and is contained in the Respondent hygiene handbook which is provided to all staff.

The Respondent became aware that the Appellant, on 22^ndAugust 2016, was chewing gum in the production area and that he was drying that gum and sticking it on the production line table legs in the form of a ‘stick man’.

The Appellant, on 25^thAugust, was invited to a preliminary investigation, to be held that day, of his activities on 22nd August. The investigation was conducted by two representatives of the Respondent including the General Manager of the Respondent, TG. The Appellant was invited to have a work colleague present as a representative in line with company policy but the Appellant declined. The Appellant was shown photographs of the ‘chewing gum stick man’ and he admitted that he was responsible for that. The investigation concluded that the matter should be reviewed under the auspices of the company’s Disciplinary Policy.

A disciplinary hearing was convened by TG and SW, the Shift Manager of the Respondent on 30^thAugust. The Appellant was again offered the opportunity to have a representative present but he declined that opportunity. The Appellant admitted that he had been chewing gum and ‘making a stick man’ on 22nd August. The Respondent took the decision to dismiss the Appellant and advised him of that decision on 30^thAugust. The decision was confirmed in writing the Appellant on 31^stAugust.

The Appellant was offered the opportunity to appeal the decision but he made no such appeal.

The Respondent submitted that the investigation and disciplinary procedures employed in this matter were fair and that the Appellant was offered an opportunity to appeal the decision to dismiss which he did not take up. The failure of the Appellant to appeal amounted to a failure on his part, having regard to earlier decisions of the EAT including inPungor v MBCC Foods Ltd[UD584/2015]to discharge the obligations upon him to exhaust internal disciplinary procedures prior to the making of a complaint of unfair dismissal.

The response of the Respondent to the actions of the Appellant was proportionate and within the band of reasonable responses which could be imposed by a reasonable employer having regard to the Respondent’s hygiene and safety standards.

If the Appellant had not been disciplined appropriately it would have given the impression to other employees that such conduct was not viewed by the Respondent as serious or incorrect.

Evidence on behalf of the Respondent

Summary Testimony of TW – Shift Manager

Mr TW stated he was a shift manager responsible for the area of work of the Appellant. He is responsible for enforcement of hygiene policy. He stated that no loose materials like bottles or wrappers were allowed to be on the floor of the production area.

He stated that on 23rd August an operator asked him if he had seen what was on a pillar close to the production conveyor. On inspection he found a ‘chewing gum man’. He reported the matter to TG in light of its seriousness. TG contacted him the next day to say that he had looked at CCTV footage of the area and asked TW to look at same. Having looked at video footage for 22nd August it was clear that the Appellant had attached the gum to the pillar.

An investigation meeting on 25^thAugust was convened by Mr TG with him and TW. At the outset TG advised the appellant that the matter was serious and asked him if he wished to be represented. The Appellant declined.

The Appellant admitted at the investigation meeting that he was responsible for sticking gum onto the pillar. There was no dispute about the matter. At the conclusion of the investigation meeting the Appellant was advised by TG that he was suspended on pay and that a disciplinary meeting would be convened the following Monday.

Under cross examination TW stated that there was no practice of operators consuming food or liquids on the production floor. He confirmed that the Appellant had not previously been the subject of a disciplinary procedure. He said that he could not remember if the Appellant was shown a picture of the ‘chewing gum man’ at the investigation meeting. He was not sure that the allegations made against the Appellant were put in writing prior to or at the investigation meeting.

In response to questions from the Court TW state that the Appellant admitted chewing gum on the production floor and making the ‘chewing gum man’.

He said that there were notices on the floor in relation to hygiene and specifically as regards chewing gum.

He stated that he saw, on CCTV, the Appellant taking gum from his mouth, drying it against a fan and sticking it on a pillar in the production area. He said that the CCTV was not shown to the Appellant because he simply admitted that he had done those things.

Summary Testimony of SW – Department Head

Mr SW stated that induction training programmes are delivered to all staff wherein a major emphasis is placed on the hygiene policy of the Respondent including the prohibition of consumption of food or liquid in the production area with a specific prohibition on gum. This induction programme is followed up by regular refresher programmes delivered to all staff including the Appellant.

He said that he was on holiday on the 23rd August but received a phone call from TW over the weekend prior to his return to work. Mr TW, in that phone call, advised that the Appellant had been ‘caught’ sticking chewing gum on a wall and that it was a serious breach of procedures.

On the 25^thAugust TG convened a disciplinary meeting in which he, SW, participated as a member of the disciplinary panel with TG.

At the outset of the meeting TG offered the Appellant the opportunity of representation and he declined that offer. TG showed the picture of the ‘chewing gum man’ to the Appellant and he stated that he had done it. TG showed the Respondent’s hygiene booklet to the Appellant and the Appellant said that he knew what was coming and that he could not defend it. The Appellant offered no explanation at the meeting.

SW said that he had no knowledge at that time of any relationship between his daughter and the Appellant and that he had no involvement in the formation of rosters.

Under cross examination he confirmed that photograph of the ‘chewing gum man’ was shown to the Appellant at the disciplinary meeting.

In response to a question from the Court SW confirmed that he and TG had stepped out of the meeting for a few minutes and agreed on the decision to dismiss in that interlude.

Summary Testimony of TG – General Manager

TG stated that the handbook of the Respondent, which was revised in 2000, 2010 and 2015, placed very significant emphasis on the prohibition of foodstuffs, including specifically chewing gum, on the production floor and it makes clear that any breach of this prohibition would be taken very seriously.

He confirmed that he had looked at relevant CCTV footage and identified the Appellant as the person on that CCTV footage sticking gum to the pillar. He then showed that CCTV footage to TW who agreed that the person sticking the gum on the pillar was the Appellant.

TG arranged an investigation meeting on 25^thAugust. He stated that he asked the Appellant at the outset whether he wanted anybody with him at that meeting and that the Appellant declined that offer.

At that meeting the Appellant admitted several times that he was responsible for the ‘gum figure’ on the pillar. At the end of that meeting TG advised the Appellant that a disciplinary meeting would take place the following Monday. Upon subsequent realisation that SW was away TW conveyed to the Appellant that the meeting would take place on the Tuesday.

A disciplinary meeting was convened on 30^thAugust which TG chaired and at which SW also sat on the panel. At the outset of that meeting the Appellant was invited to have a representative present in light of the serious nature of the situation. The Appellant declined that opportunity.

The Appellant admitted he was responsible for the gum figure and apologised. These were the Appellant’s only comments at the meeting. At the end of that meeting TG asked SW to step outside the room. SW agreed with TG that the appropriate course of action was dismissal.

TG and SW returned to the room and advised the Appellant that his employment was terminated. TG advised the Appellant that he could appeal that decision and that the decision would be conveyed later in writing. A letter issued on the following day to the Appellant.

TG stated that at the time of his making the decision to dismiss the Appellant he saw no other appropriate alternative to dismissal.

Under cross examination TG confirmed that he had become aware of the incident on 23^rdAugust and that he had viewed the CCTV. He stated that he did not consider putting the allegations against the Appellant to him in writing.

TG stated that the photograph of the ‘gum man’ may not have been shown to the Appellant at the investigative meeting but stated that it was shown to him at the disciplinary meeting. TG confirmed that no record was taken at the end of the disciplinary meeting as regards the fact of his and Mr SW stepping out of the room. He confirmed that the CCTV footage was not shown to the Appellant at the investigative meeting or at the disciplinary meeting.

In response to a question from the Court TG confirmed that he was the final decision maker as regards the dismissal of the Appellant and he stated that the Appellant had confirmed that he was responsible for the ‘gum man’.

Summary position of the Appellant

The Appellant submitted that the reason for his dismissal was that he had had a short relationship with Ms NW who was the daughter of Mr SW. He submitted that he was rostered in an unusual manner after his relationship with NW and that Mr SW was very formal in his interactions with him.

He submitted that the Respondent did not enforce a policy against food or drink being permitted in the bakery area. He submitted that it was commonplace for workers to bring food or drink into the bakery area and for workers to use chewing gum in that area. He submitted that discarded food wrappers and bottles could often be seen on the bakery floor.

He submitted that he did not receive adequate training in the area of food safety and submitted that no signs were posted in the area highlighting the prohibition of gum on the bakery floor.

The Appellant submitted that he worked with approximately 20 workers and it was commonplace for those workers to chew gum on the bakery floor. He submitted that in the weeks prior to 22^ndAugust 2016 he became aware that workers had taken to sticking chewing gum to a pillar on the periphery of the factory floor and that on or about 22nd August 2016 he stuck two pieces of chewing gum to that pillar. He submitted that he was not the only worker to do so.

On the morning of 25^thAugust he was summoned to a meeting with TG and TW. At the outset of that meeting he was offered representation but he declined that offer on the basis that at that time in the morning very few people were at work and in any event he was unaware of the subject matter of the meeting.

He admitted at that meeting that he did stick gum to the pillar but he did not admit to being solely responsible for the ‘chewing gum man’. He apologised at that meeting.

At the end of that meeting he was advised that a disciplinary meeting would take place on 29^thAugust which was subsequently changed to 30^thAugust.

At the disciplinary meeting, which lasted 15 or 20 minutes, he was advised of a decision to dismiss him. That decision was confirmed in writing by letter of 31^stAugust 2016.

He submitted that the Respondent did not take any account of the fact that other workers were engaged in the same activity as the Claimant and no disciplinary action was initiated in respect of those persons.

The Appellant submitted that the procedure employed by the Respondent was unfair insofar as (a) at no stage was the Appellant advised in writing of the allegations against him and in particular no such notification was given to him in advance of the investigation meeting. Neither was he advised in writing in advance of the disciplinary meeting of the potential sanctions which might be applied to him as a result of that meeting, (b) the ultimate decision maker in the matter, TG, chaired both the investigatory and disciplinary hearings, and (c) he was not offered representation at the disciplinary meeting albeit he had been offered such representation at the outset of the investigative meeting.

The Appellant submitted that the dismissal had no substantial grounds and the decision to dismiss was arrived at in breach of fair procedures. He submitted that he had been singled out for disciplinary sanction notwithstanding the fact that a number of employees had engaged in the same activity.

Summary testimony of the Appellant

The Appellant gave evidence. He stated that on the morning of 25^thAugust 2016 he was approached by TW to go to the office. He asked TW if the matter was serious and TW told him it might be. At the start of the meeting that morning with Mr TG and Mr TW he was asked if he wanted representation. He declined that offer on the basis that there was nobody there that early in the morning.

He was told at the end of that meeting that a disciplinary meeting was to take place and he ultimately attended that meeting on 30^thAugust 2016.

He received nothing in writing from the Respondent as regards the allegations being made against him. He admitted at both the investigative and the disciplinary meeting that he had stuck gum on the pillar. He was never shown a photo of the ‘stick man’.

He said that he had never, in the course of his employment, been told that he could be dismissed for chewing gum on the bakery floor or. He said there was lots of gum on the bakery floor and he was a ‘fall guy’.

Under cross examination he said that he was aware that the chewing of gum was a breach of the Respondent’s hygiene policy but took the view that everybody breaks rules. He stated in evidence that he was aware that what he did was wrong. He said that he was aware in advance of the disciplinary meeting that dismissal was a possibility.

He said that he did not offer any explanation at the investigative or disciplinary meetings for chewing gum and did admit to sticking gum on the pillar.

He said that he may have received the Respondent’s hygiene and safety policy but he did not read it and was unaware of its contents. He accepted that he did sign for receipt of the relevant policies.

He stated that he had received external advice within a week of his dismissal and as a result made a complaint to the WRC. He said that he did not appeal the decision to dismiss him.

Discussion and conclusions

The Court notes that the disciplinary policy of the Respondent sets out clearly a prohibition on the chewing of gum on the bakery floor. The Court accepts that such a policy is reasonable in a food production facility. The Court further notes that the policy makes clear that a failure to observe this prohibition is a serious matter and could lead to dismissal. The Court also notes the Appellant’s acceptance that he may have been provided with this policy.

The Court finds that the Appellant was provided with the Respondent’s hygiene policy and that it is clear and explicit as regards the chewing of gum on the bakery floor and the consequence of a breach in that regard.

There is no doubt therefore that the Respondent’s initiation of an investigation and disciplinary procedure was in response to the alleged behaviour of the Appellant, which was clearly identified as behaviour which could lead to dismissal, was appropriate and reasonable.

The Court notes that no notice given to the Appellant of an investigation meeting on 25^thAugust 2016. The Court also notes that the Appellant was not provided with any detail, written or otherwise, in advance of the investigation meeting of the matter at issue or the allegation against him giving rise to the investigation meeting.

The Court notes that following the investigation meeting a disciplinary hearing was convened. The Appellant was not provided in advance of that meeting with any written detail of the outcome of the investigation meeting or any other written notification of the matters giving rise to the disciplinary meeting or the potential consequences which might arise therefrom.

The procedure employed by the Respondent in this matter involved at all stages a role for TG, the ultimate decision maker in the dismissal of the Appellant. TG was the first person to review the CCTV footage which allegedly showed the Appellant sticking gum on the pillar. On foot of that review of footage TG decided to carry out an investigation procedure. That procedure involved a hearing chaired by TG. The Appellant was advised by TG, at the conclusion of the investigation meeting, that a decision had been taken to convene a disciplinary hearing. That hearing was chaired by TG. At the end of that hearing and following a short meeting outside the room between TG and SW, TG, as the ultimate decision maker, conveyed the decision to dismiss to the Appellant.

The Court notes that the Appellant was offered representation at the commencement of the investigation meeting. The parties dispute whether such an offer was made in respect of the disciplinary hearing.

The Court finds that the failure of the Respondent to set out in writing to the Appellant the detail of the allegations against him and the failure to share with him all relevant material, including the CCTV footage which gave rise to the initial investigation, are significant failures of the procedure followed in dealing with this matter. The Court also believes that the absence of notice of the investigation meeting or advance notification of the nature of that meeting undermined the offer of representation made to the Appellant at the outset of that meeting.

Finally, the Court considers that the multiplicity of roles undertaken by TG in the process calls into question the fairness of the procedure. TG was the person who initiated the investigatory procedure and he oversaw that procedure himself. That procedure resulted in a disciplinary procedure which TG also oversaw. The Court is satisfied that the within enterprise is of a nature which afforded the Respondent the opportunity to ensure a clear separation of investigation and disciplinary processes by selection of available management level personnel to carry out the different stages of the procedure.

In all the circumstances the Court finds that the dismissal of the Appellant was procedurally unfair. The Court however also finds that the Appellant, through his behaviour, contributed significantly to his dismissal and this has been taken into account in considering redress. The Court has also taken account of the Appellant’s failure to appeal the decision to dismiss.

The Court notes that the Appellant has secured alternative employment and finds that compensation is the appropriate form of redress.

The Court has received submissions as regards the Appellant’s earnings at the time of his dismissal, his loss arising from his dismissal and his efforts to mitigate those losses. The Court has taken account of these submissions.

Determination

The Court determines that the complaint is well founded and that the dismissal was unfair. The Court however determines that the Appellant, through his conduct, was 60% responsible for his dismissal. The Court orders the Respondent to pay the Appellant compensation in the amount of €6,000.

The decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
LS______________________
16 April 2018Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.