Complainant

Respondent

Anonymised Parties

General Operative

Meat Processing Company

Representatives

SIPTU

Alastair Purdy & Co Solicitors

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-00015199-001

23/10/2017

The Respondent operates a meat processing plant. The Complainant was employed by the Respondent since 2nd May 2006 as a General Operative. He was paid €351 gross per week and worked 32 hours. His employment was terminated on the 30th May 2017. He claims that he was unfairly dismissed and seeks compensation. The Respondent rejects the claim.

The Complainant was employed by the Respondent as a Cleaner at the Respondent’s meat plant. Following a report from site security to the HR, the Complainant was called to a meeting with Ms S of HR and Mr. C, Abattoir Production Manager. He was informed that an allegation was made that he had taken product belonging to the Respondent company off site without permission. Due to the nature of the allegation, the Complainant was suspended with full pay pending the outcome of the investigation. An investigation meeting took place on 1st December 2016 and the Complainant was represented by the Shop Steward. Ms A of the Respondent’s HR Department carried out the investigation and, as part of the process, obtained statements from both the security guard who has raised the matter and Mr. N, Boning Hall Manager. Taking into account the Complainant accepting that he had removed product (albeit that he continued to state that he had permission) and due to a concern that had arisen during the investigation that the Complainant had interfered with CCTV equipment while removing the product, a decision was made that the matter be progressed to a disciplinary hearing. The allegations that the Complainant was facing were that of removing company property off site and interfering with company CCTV cameras. The disciplinary hearing was scheduled on 9th December 2016. However, it was deferred on several occasions. Firstly, same was postponed to make sure that the Complainant had copies of all applicable documents that had emanated from the investigation. Secondly, as the Respondent had arranged for a translator to meet with the Complainant to go through all the papers should there be any language issues. The Complainant failed to show for the Disciplinary Hearing that was finally scheduled for 23rd December 2016. In the Complainant’s absence and on foot of the material before him, Mr. D, General Manager decided to dismiss the Complainant. On the 4th January 2017 the Complainant attended at the plant to dispute the hearing proceeding in his absence. It transpired that the Complainant had dropped a sick certificate into the site the day before the hearing that had not come to the attention of Mr. D. In order to be as open and reasonable as possible, it was decided that the decision of Mr. D would be rescinded and a new Disciplinary Hearing chaired by Ms G, Office Manager would be arranged. The hearing was to take place on 18th January 2017. However, the Complainant continued to submit sick certificates and remained out of work until May 2017 and the hearing was not possible until 25th May 2017. The hearing was chaired by Ms F, plant HR Manager. In this meeting, the Complainant and his SIPTU representative raised certain queries on the statements and CCTV equipment. These matters were investigated and information passed to the Complainant. The information confirmed that Mr. N was confirming that he had not given the Complainant permission to remove company property off site and further, evidence was furnished confirming that the CCTV equipment was in working order and it was not a fault of the system that caused the camera in question to be obscured. On foot of that and the fact that the Complainant once again agreed that he had removed company product and property, under cover of correspondence date 30th May 2017, the Complainant was summarily dismissed for gross misconduct. The Complainant appealed this decision under cover of correspondence dated 6th June 2017 and furnished his grounds for appeal on 13th June 2017. The Complainant was not in a position to attend appeal hearing scheduled for July. The hearing chaired by Mr. M, the Respondent’s Group HR Manager took place on 24th August 2017. The Complainant was represented by SIPTU. Mr. M upheld the decision to dismiss on 21st September 2017. The Respondent submits that the Complainant’s behaviour was such that dismissal was warranted in the first instance. The Complainant accepted that he removed company product on more than one occasion and the evidence obtained throughout the procedure did not show that he had permission to do so. This is a clear breach of the Respondent’s policy which designates same in its disciplinary policy as gross misconduct. In addition, on the balance of probabilities, sufficient evidence was displayed that the Complainant had been interfering with the Respondent’s CCTV equipment. The Respondent confirms that the Complainant received every opportunity to defend the allegations before him and was offered and received adjournments and additional investigations when sought. The Respondent submits that the Respondent was reasonable in its consideration of matters, however, taking into account the severity of the allegations and the fact that there are matters of gross misconduct, the Respondent took the reasonable decision to dismiss.

The Respondent relies to Hennessy v Read and Write Shop Ltd. UD 192/78.

The Complainant submits that on the morning of 28th November 2016 as he was leaving the factory the Security Officer approached him having seen him put what was described as two white boxes into the back seat and a pallet into the boot of the car. The Security Officer asked the Complainant if he had permission to take the stuff and the Complainant replied he did. The Security Officer allegedly asked what was in the bucket to which the Complainant replied “ribs”. The Security Officer allegedly asked if he could look in the bucket and he asserts that the Complainant did not respond. The Complainant submits that the Security Guard did not ask the question because if he did the Complainant, believing he had permission would have no difficulty in complying. Rather than exercising his authority to safeguard company property the Guard allegedly merely responded “on camera and will get in trouble for this”. The Complainant at this stage repeated that he had been doing this for some time and he was doing so on the basis that he understood that he had permission from the management, namely Mr. N, the Boning Hall Manager. The Complainant further asserts that it was common practice in the factory. The Complainant submits that the statement from Mr. N in relation to the permission given includes a handwritten rider to that statement which the Complainant contend is not Mr. N’s handwriting and it cannot be verified when it was added to the statement. The Complainant was invited to the Investigation Meeting on the 1st December 2016 with Ms A, Investigating Officer (IO). The Complainant was represented by his Shop Steward at the meeting. During the meeting the IO showed the Complainant CCTV footage of the factory from 19th November 2016, the IO asked what was in the pallet and a bucket and the Complainant said it was ribs and bones. The Complainant said that others do the same thing. The IO showed further CCTV footage from the 22nd November which showed the Complainant driving the forklift, the issue for the IO appears that the Complainant should not drive the forklift as he does not have the requisite license, there was no suggestion that the Complainant took the load or any part of it to his car. There was a suggestion by the IO that the Complainant covered the camera in the lairage locker room on occasions and it was suggested that this amounted to evidence that the Complainant was covering that particular camera so that he could remove company property notwithstanding that there are cameras all over the factory and that the Complainant had put broken pallets and buckets into his car in full view of the Security Officer as he believed he had the permission of the Boning Hall Manager. The IO issued an Investigation Report to the Complainant on 16th December 2016. The investigation concluded that the Complainant “removed company property off site without obtaining permission form a member of management”. It should be acknowledged that the Complainant did acknowledge that he removed pallets and buckets from the site, that it was common practice and that he believed fundamentally that he had permission to do so. The second issue in relation to the cameras is somewhat a moot point as there were both cameras and Security covering the car park area where the Complainant brought out the pallets and buckets in full view of cameras and Security personnel. Following on from the Report a Disciplinary Hearing took place and the Complainant was dismissed. The Complainant did participate in an appeal process but was unsuccessful and the decision to dismiss was upheld.

At all times it is the Complainant’s case that he had permission to take the ribs and broken pallets from the factory. It is also his case that it is common practice and other workers believe it to be okay. At no time did management issue instructions to the Complainant that he could not take waste ribs or broken pallets from the factory. It is the Complainant’s case that the management behaved unreasonably in their decision to dismiss him. It is further his case that given his unblemished disciplinary record and the fact that he had the permission of the Boning Hall Manager to remove the broken pallets and buckets that they should have considered a sanction less than dismissal. The Complainant relies on Marc Bentley v Tesco Ireland Limited UD818/2012 that in cases where serious allegations are made attracting serious consequences to one’s reputation, career and general prospect or allegations bordering on or amounting to criminal liability, it is essential and imperative that the corresponding procedures adopted in the investigatory and disciplinary process be carried out with the utmost vigilance, care and fairness especially when the onus of proof lies on the party making the allegations. It is the Complainant’s contention that the Respondent in the herein case has failed to discharge to the highest level of the balance of probabilities that the Complainant was guilty of theft of company property. In the referenced case the EAT set out that regards should be had to the Complainant’s unblemished and untarnished record and the fact that his integrity had not been impugned at any time before this incident and that during the appeal hearing no account was taken of his previous record. The Complainant contends that the Respondent failed to adequately consider the previous good record of the Complainant and failed to give adequate consideration to a sanction other than dismissal and that the actions of the Respondent have impugned the character of a worker with a previous good character without adequate proof of wrongdoing.

In his direct evidence the Complainant stated that had he not removed the material, the Respondent would have to pay someone to recycle the items.

Preliminary matter:

In its submission, the Respondent included details relating to criminal investigation in respect of the Complainant. The Complainant’s representative objected to the material in question being part of the Respondent’s submission and on that basis requested that the Adjudication Officer recuse herself on the basis that viewing the material in question is prejudicial. I allowed both parties to make submission on the subject. I adjourned the hearing to consider the matter. 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. I am satisfied that viewing of the material in question in no way compromised my integrity and impartiality of the hearing and consequently, I am satisfied that it is appropriate for me to proceed with the hearing.

Substantive matter:

The Unfair Dismissal Act, 1997 stipulates that:Section 6(1) ”Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: ...

(b) the conduct of the employee…”

In relation to a complaint of unfair dismissal arising from an employee’s conduct, the relevant legal provisions and the factors to be considered are contained in Section 6 of the Unfair Dismissals Act 1977 including: “(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal. (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

The Applicable test to establish whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.” An adequate investigation has to be assessed by the standard that could be objectively expected of a reasonable employer as per J Sainsbury Plc v Hitt (2003) ICR 111. 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).

It is not a matter for me to decide on the issue of guilt or innocence of the Complainant. In the case of Philip Molloy v Wincanton Ireland Limited (UD 187/2011) the EAT stated – “The role of the Tribunal is not to determine whether the Claimant was guilty or innocent of the disciplinary matters. The role of the Tribunal is to determine whether a reasonable employer in similar circumstances and a similar line of business would have dismissed the employee”. 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.

There was no dispute between the Parties that on the dates in question the Complainant removed company property. The Investigation Officer interviewed all relevant persons including the Complainant, Security Guard and Boning Hall Manager and found that the Complainant removed company property off site without permission. She also concluded that the Complainant was interfering with the CCTV camera. The Complainant denies the latter and claims he had permission to remove company property. I am satisfied that sufficient grounds existed for the Respondent to initiate the disciplinary process.

In relation to the process itself, I reviewed the evidence presented before and at the hearing and I am satisfied that the Complainant was afforded a comprehensive and thorough disciplinary process. He was given an ample opportunity to defend his actions. There was a full investigation followed by the disciplinary process. The Complainant was provided with full detail of the allegations and supporting material and he was represented. The Respondent arranged interpretation service. I note the Complainant insisted on interpretation and translation of all documents being provided. However, at the hearing he did not take advantage of the interpreter’s assistance and, when asked by this Adjudication Officer he confirmed that his understanding of English language is such that he can follow the proceedings without interpretation. The Complainant has received details of Disciplinary Procedures in a language of his understanding. The document outlines clearly the details of the disciplinary code and process as well as gives examples of gross misconduct. The hearings were adjourned on numerous occasions, so there cannot be any “rush to judgement” claim.

I note that the statement from Mr. N, Boning Hall Manager was obtained on the 9th December 2016. I note also that the Investigation Report (undated) was handed to the Complainant on 16th December 2016. I would therefore have some concerns in relation to the scheduling of the first Disciplinary meeting on the 9th December 2016. However, as the hearing did not actually take place until May 2017 I am satisfied that the Complainant’s defence of the claim has not been prejudiced.

In totality, I find the Respondent adhered to its disciplinary procedures and considered all issues presented to it in the course of its investigation.

The final matter 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.

I note that the Complainant had over 10 years of employment with no disciplinary record. I note also that the Respondent's disciplinary procedure provides a list (“not necessarily comprehensive or in order of gravity”) of examples of what constitutes gross misconduct. It includes amongst others theft and wilful violation of company rules including safety precautions and statutory regulations. I note the Respondent’s assertion that the Complainant, as a long-standing employee was aware of the highly-regulated nature of the industry and the regulation in respect of waste disposal. The Complainant’s justification that other staff take leftovers and that if he hasn’t taken the items the Respondent would have to pay someone to recycle the items is irrelevant to these proceedings. In any event, the decision as to whether and in what way the items in question were to be disposed of was not his to make. His actions breached the trust reposed in him by the Respondent and, primarily on the breach of trust ground I conclude that the Respondent was justified in considering a lesser sanction as not appropriate.

I find that the Respondent completed a full and fair investigation and disciplinary process. In light of the facts gathered and the admission on the part of the Complainant himself, the Respondent’s conclusion that the Complainant’s actions amounted to gross misconduct was not unreasonable. Moreover, given the seriousness of the misconduct from the Respondent’s point of view, the decision to dismiss could not be considered as unreasonable.

In all the circumstances, and having regard to the foregoing, I find that the Respondent had reasonable grounds to summarily dismiss the Complainant.

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this claim in accordance with the relevant provisions. Based upon the reasoning as set out aforesaid I find that the complaint made pursuant to the Unfair Dismissals Act is not well-founded and accordingly, the complaint fails.

Gross misconduct, removal of property, unfair dismissal