Complainant

Respondent

Anonymised Parties

An Employee

A Wholesale Poultry Producer

Representatives

 SIPTU-Workers Rights Centre

 IBEC West

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-00014793-001

05/10/2017

The Complainant commenced work with the Respondent, a poultry producer, on 5 January 2001. He was dismissed with effect from 24 July 2017 for breach of the Company ethos in regard to animal welfare.

Background:

The Complainant’s representative stated that, on 4 May 2017, the Complainant and approximately eight other operatives were working on the kill/hanging line. This involved hanging live chickens on a rack which then transferred the animals to another area to be killed.

According to the Complainant, the chickens (as many as 18 to 20 at a time) would come through to him in a large basket, from which they were continually jumping out onto a lower platform. The Complainant stated in evidence that he would retrieve the animals and place them back onto the line. In addition, he stated that this was a fast-moving process and that he was continually picking up chickens at a fast pace and putting them back into the line.

According to the Complainant’s evidence, on the morning of 4 May 2017, the Supervisor came to the Complainant and asked him why he had damaged some chickens. The Complainant stated that he did not agree that he had damaged the chickens and said so to his Supervisor. The Complainant further stated that the Supervisor told him that he was going to the office to report the incident.

According to the Complainant’s evidence, he heard nothing further about the incident and finished his shift as normal that day at 3:00 pm. However, he stated that the following day he was moved to the basement area of the plant where he was working with frozen product. The Complainant stated that he was later told by the Operations Manager to go to the office, however, he was not told what this was about.

The Complainant stated that, when he arrived at the office, the Operations Manager and a representative from HR were there. According to the Complainant’s evidence, he was not advised, at the time, of his right to have support or Trade Union representation. The Complainant stated that he was asked about the allegation made by the Supervisor and he explained about the birds jumping from the baskets and the necessity to retrieve them at speed. The Complainant also stated that he rejected the idea that he had deliberately damaged birds but accepted that this could have occurred unintentionally as he was working very fast and there were many chickens jumping out of the baskets.

According to the Complainant’s evidence, during the meeting, which took about 10/15 minutes, there was no reference to animal welfare.

According to the Complainant’s evidence, following the meeting, he returned to work in the frozen food area. However, he stated that, when he asked the Operations Manager what the next step in the process will be, he was told “not to worry”.

The Complainant’s Trade Union representative stated that he subsequently suffered knee damage which necessitated some time off from work. The Complainant was absent from work due to this problem from 17 May 2017 to 4 July 2017. It was also submitted on behalf of the Complained that he had requested a change of shift and was facilitated on the evening shift, where he worked for the most part in the basement (frozen product) section. However, according to the Complainant’s evidence he was, on a number of occasions, asked to go back on the killing/hanging line when it was busy.

According to the Complainant’s evidence, he received a letter, dated 5 July 2017, signed by the Operations Manager requesting his attendance at a Disciplinary Meeting on 11 July 2017. It was further stated that this letter included copies of statements signed by the Supervisor and the Operations Manager. In addition, it contained a copy of a non-signed statement from the Complainant.

The Complainant’s Trade Union representative stated that he met with the Operations Manager and a representative from HR at the meeting on 11 July 2017. The Complainant attended this meeting on his own and had no representation. It was further stated that, following the meeting, the Complainant worked on as normal and on 24 July 2017 was approached by the Operations Manager who asked him to work on day shift the following day. However, the Complainant was unable to oblige on this occasion but was informed that this was okay by the Operations Manager.

According to the Complainant’s evidence, the Operations Manager handed him his letter of dismissal, which was dated 24 July 2017, at around 7 PM on the evening of 25 July 2017. The Complainant stated that, on handing him the dismissal letter, the Operations Manager stated that he was sorry and claimed that the decision was not his.  

The Complainant lodge an appeal of the dismissal decision on 28 July 2017. The grounds of the Complaints appeal were his good service for almost 17 years with the Respondent and the fact that he believed the Supervisor, who was the instigator of the complaint against him and the only witness to the incident, had never liked him. According to the Complainant’s representative, he received no response to his letter of appeal and the matter had to be pursued by his Trade Union on his behalf.

According to his Trade Union representative, the Complainant’s Appeal Hearing eventually took place on 11 September 2017. The appeal was carried out by the Respondent’s General Manager. The Complainant had Trade Union representation at the Appeal Hearing and, as a result, the matters raised in mitigation were more detailed than originally set out in the Complainant’s letter of appeal. The Complainant’s representative stated that issues such as language difficulty, the duration of time taken to process the matter from beginning to end and the Complainant’s views on the Supervisors dislike of him were put forward at the Hearing.

However, according to the Complainant’s representative, while the   points put forward in mitigation were noted by the Appeals Officer, he appeared to disregard these with little consideration. The original decision to dismiss was upheld on appeal.

Complainant’s Arguments:

In submitting the Complainant’s claim, his Trade Union representative raised a number of issues challenging the fairness and reasonableness of the Respondent’s processes and the decision to dismiss.

It was contended that Management commenced the process based on allegations made by the Complainant’s supervisor, that he had observed the Complainant twice banging live birds against the steel frame of the conveyor. It was stated that the Complainant rejects the assertion that he had deliberately done this but accepted that in the disarray around the line, with birds flying out of baskets and having to be retrieved at speed, that he may have unintentionally banged birds. However, it was further reiterated that this would have been unintended and certainly not done on purpose.

It was stated that as they were no other witnesses to the alleged incident it boiled down to the Complainant’s word, as a General Operative, against that of his Supervisor.

Furthermore, it was stated that, had there been a formal investigation, it could only have found that, overall, there was no actual evidence that a bird was banned or damaged deliberately by the Complainant.

It was stated that there was no acknowledgement by management of the requirement to ensure that the Complainant, a Russian citizen, was able to understand the process and procedure as no interpreter was provided. It was stated that the Respondent contended that, as the Complainant had completed all his training through English, his competency in English was deemed to be more than acceptable to proceed with the disciplinary hearing without the requirement of a translator. However, the Complainant’s Trade Union representative countered that, while he had a grasp of English which got through on a day-to-day basis, the complexities of an issue which could lead to his dismissal is something quite different, as it would certainly require a clear understanding of the matters involved in the procedures.

It was claimed on the Complainant’s behalf that the Respondent failed to make him aware of the seriousness of his situation and that he could be dismissed as a result.

It was also contended that the Respondent instructed the Complainant to work in various areas of the plant, including the kill/hang line, on many occasions between the alleged incident on four May and the date of dismissal on 24 July. It was further contended that this contradicts the assertion that this was a matter of gross misconduct which requires immediate dismissal.

According to the Complainant’s representative, the issue of animal welfare was not mentioned to the Complainant at the initial meeting with the Operations Manager or at the Disciplinary Meeting. It was stated that the first mention of animal welfare appeared in the dismissal letter of 24 July 2017. Furthermore, it is contended, on behalf of the Complainant, that there is no mention of animal welfare anywhere in the Company Handbook and, while the Respondent claims, in their letter of 5 July 2017, that the Complainant breached company rules in this regard, there does not appear to be any policy or procedure in relation to Animal Welfare.

It was further contended on behalf of the Complainant that there is no evidence that any consideration was given to a lesser sanction. It was stated that the Complainant had worked in various areas of the plant and there is no evidence of any consideration having been given to removing him permanently from the kill/hanging line. Likewise, it was contended that there is no evidence to suggest that the Complainant’s length of service and good record had been considered at any stage of the process. It was stated that the Complainant had no previous warnings and, in this instance, he should have been warned about the consequences of a repeat of any unacceptable behaviour, rather than being dismissed.

The Appeal Hearing was delayed for six weeks without the offer of an explanation or justification. It was further stated that the Complainant did not even receive an acknowledgement of his letter of appeal and this had to be followed up by his Trade Union. It was therefore contended that this was denying the Complainant justice, as the longer he was away from his job the less likely he was to be returned to the position.

In conclusion, it was stated on behalf of the Complainant that the Respondent had not shown substantial grounds for dismissal in this case. It was further stated that Gross Misconduct only became a feature when it was mentioned at the Disciplinary Meeting over two months after the alleged event. The Complainant’s Trade Union representative contends that this was not a case of gross misconduct and that the normal Disciplinary Procedures should have been utilised.

Consequently, it is submitted on behalf of the Complainant that the dismissal was unfair.

Background:

The Respondent stated that the Complainant commenced work on 10 January 2001.

The Respondent stated that, on 4 May 2017, the Complainant was working with live chickens on a kill line. At one stage, the Complainant was witnessed banging a chicken’s head against a steel frame of a conveyor. According to the Respondent, these actions are strictly against their Animal Welfare Practice, training for which the Complainant had received.

The Respondent stated that the incident had been witnessed by the Complainant’s Supervisor, who reported it directly to the Operations Manager on site. The Operations Manager removed the Complainant from the kill line to another line within the factory, while investigation into the allegation was ongoing.

According to the Respondent’s evidence, during the investigation, statements were taken from all parties which included: the Complainant, the Supervisor and the Operations Manager. It was stated in addition that a background check was also undertaken to ensure the Complainant had received the appropriate Animal Welfare training. According to the Respondent, once the investigation was conducted, it was agreed that a formal disciplinary hearing should take place.

The Respondent further stated that while this investigation was ongoing, the Complainant was on sick leave from 17 May until 4 July 2017. The Respondent stated that a letter was issued to the complainant on 20 June 2017 with the intention of engaging the Complainant in a disciplinary hearing when he was fit to do so. According to the Respondent, the Complainant returned to work on 4 July 2017 and on the following day (5 July 2017) a letter was issued to him inviting him to attend a disciplinary hearing. According to the Respondents, the Complainant was advised in this letter that he could invite another member of staff or union representative to the meeting.

It was submitted that a disciplinary hearing took place on 11 July 2017. According to the Respondent, this meeting was conducted by the Operations Manager, who was accompanied by a colleague from HR, in the capacity of Note Taker. The Respondent stated that the Complainant chose to attend alone and stated that he did understand that he could have chosen to have representation.

According to the Respondent’s submission, based on the evidence found in the statements given at the disciplinary hearing, the claimant was found to be in breach of Animal Welfare Policies in the company and, as a result, was responsible for serious misconduct as outlined in the Company Handbook. The Respondent stated that the Complainant was, therefore, dismissed from a position with immediate effect.

According to the Respondent’s evidence, the Complainant appealed the decision of the disciplinary hearing to the General Manager, within five days of the disciplinary hearing outcome. The Respondent stated that the Complainant based his grounds for appeal on the severity of the sanction and the language barriers created by the fact that he was not offered an interpreter during the investigation or the disciplinary process.

The Respondent stated that due to staff changeover, there were not in a position to hold the appeal hearing until 11 September 2017. The appeal was heard by the General Manager, who was accompanied by a representative from HR, in the capacity as Note Taker. The Respondent stated that the decision of the disciplinary hearing was upheld and the appeal outcome issued to the Complainant on 14 September 2017.

Respondent’s position:

The Respondent stated that it puts a very high value on its Animal Welfare policies. It was further stated that this can be borne by the amount of time given to training staff members in how important animal welfare is. The Respondent stated that the Complainant had shown scant regard for these policies by his actions on 4 May 2017. Consequently, the Respondent stated that the Complainant’s actions amounted to Gross Misconduct.

The Respondent also stated that the Complainant was afforded all his rights under natural justice. In this regard the Respondent stated that the Complaint was immediately made aware of the allegation against him. In addition, the Respondent stated that a full and thorough investigation was carried out. According to the Respondent, the Complainant was advised of his right to representation. The Respondent stated that the complainant was also given the right of reply and the right of appeal, which he availed of.

In summary, the Respondent stated that, in all the circumstances, the decision to dismiss was fair and reasonable.

The Complainant was dismissed by the Respondent on the basis that his actions, when he “allegedly banged a live bird repeatedly against to create in a purposeful manner”, were a “complete contradiction to our company ethos in regards to animal welfare” and that this behaviour was “so serious that the Company considers it to be a significant breach of company rules and accepted practice.”

Therefore, the assessment of the Complainant's complaint relates to his dismissal arising out of the incident on 4 May 2017.

Section 6 (1) of the Unfair Dismissal Act 1977 states that:

“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 the circumstances, there were substantial grounds justifying the dismissal."

Section 6 (4) of the Act further states that:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose 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….”

Section 6 (6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal are 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 for justifying the dismissal.”

The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established in case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances. It is not the function of the Adjudicator to establish the guilt or innocence of the employee.

On the contrary, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show the fair process and procedures were applied when conducting the disciplinary process.

In cases where the dismissal relates to gross misconduct, the EAT set out the appropriate test to be applied in such circumstances. In O'Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows:

"In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

With regard to the case in hand, the Complainant presented compelling evidence in relation to the challenges presented by having to extract live chickens from creates and place them on a rack for transfer to another area where they would be killed. The Complainant referred, in particular, to the difficulties presented by the chickens continually jumping out of the creates and his having to retrieve them at speed and place them back in the creates. The Respondent did not provide any evidence to counter that presented by the Complainant in this regard.

It is clear from the Complainant’s evidence that while he admits to possibly having handled the animals roughly, as he placed them back in the create, he denies having deliberately banged an animal on the side of the create, which is the allegation made against him by his Supervisor. The unavailability of the Supervisor to provide evidence is noted. The Complainant’s evidence that there may have been ongoing animus between him and his Supervisor is also noted.

Consequently, taking all of the above into consideration, I have significant concerns with the fact that, in the absence of any corroborating evidence, the Respondent has relied solely on the Supervisor’s account of the incident, in its decision to dismissal the Complainant. Given that the Complainant’s account of the event, which appears to have been consistent throughout the process, differs from that of his Supervisor, it is clear that the Respondent had conflicting evidence from the only two witnesses to the incident. In such circumstances then, I find it difficult to understand how such weight was given to the Supervisor’s account of the event, when coming to a decision to dismiss the Complainant.

Further concerns arise from the role played by the Operations Manager in the investigation and disciplinary process. A significant body of case law exists with regard to the issue of the separation of the investigation stage from the disciplinary decision-making process in the context of providing fair procedure, particularly in a process that results in the termination of an employee’s employment.

In one such case, Joseph Brennan Bakeries v Rogers   (UDD1821), the Labour Court stated:

“The Court considers that the multiplicity of roles undertaken by TG [ the General Manager] in the process calls into question the fairness of the procedure. TG was the person who initiated the investigatory procedure and he oversaw the 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.”

The circumstances pertaining to the role of the Operations Manager, in the within case, are very similar to those set out by the Labour Court above. The Supervisor first reported the incident to the Operations Manager, who then proceeded to investigate the issue with the Complainant. Then, having completed that stage of the process, the Operations Manager proceeded to conduct the Disciplinary Hearing, in which the documentary evidence suggests he was the decision-maker with regard to the disciplinary sanction.

Having conducted a preliminary investigation, insofar as it could be described as such, I find it inappropriate that the Operations Manager would have then participated as the disciplining officer, on whose decision the Complainant was dismissed.

My concerns, in this regard, are further deepened by the evidence presented by the Complainant that, when presenting him with his dismissal letter, the Operations Manager indicated that the decision to dismiss had not been made by him. In the absence of any evidence from the Operations Manager, the Complainant’s evidence in this regard suggests that, despite conducting the entire process right through to the decision-making stage, the actual decision may, in the end, have been influenced by a person(s) whose role in the process is not transparent.

Consequently, taking all of the issues into consideration, I find there to be a distinct lack of objectivity and independence in the carrying out of the investigation and disciplinary processes, which ultimately led to the Complainant’s dismissal.

With regard to the disciplinary process itself, the evidence suggests that the Complainant was not, at   any stage prior to receipt of his dismissal letter on 25 July 2017, advised that his actions on 4 May 2017 were considered to be so serious that they could lead to his ultimate dismissal. The Complainant stated that, following the meeting with the Operations Manager the day after the incident (5 May 2017), on enquiring from the Operations Manager as to what would happen next, the latter informed the Complainant “not to worry”.   In a context where the Complainant had not been formally advised as to the seriousness of his actions, I believe that the Respondent’s contentions that those actions warranted dismissal are further undermined.

I can find no evidence to suggest that, prior to reaching his decision to dismiss the Complainant, the Operations Manager give any consideration to an alternative sanction.   At the date of the incident, the Complainant had been in the Respondent’s employment for over 17 years. It appears from the evidence presented that this was the first occasion on which there arose any issue in relation to the Complainant’s employment and there is no record of any previous disciplinary actions/sanctions been taken against him.

In the context of a once off incident, which the incident of 4 May 2017 clearly was, I am of the view that it would be reasonable that the Respondent would, at minimum, consider the possibility of alternative sanctions. It is noted in the evidence that, immediately following the incident on 4 May 2017, the Complainant was moved to alternative work within the plant. This, with the exception of intermittent relocation back to the kill line, remained his work-station until his dismissal on 24 July 2017.

It is difficult to understand how, in a context where the Respondent considered the Complainant’s actions 4 May 2017 to be of such gravity as to warrant dismissal, the Respondent allowed the Complainant to remain at work for a period of over two months. It would be more typical, in such circumstances, that the Complainant be suspended, with pay, pending completion of the investigation and disciplinary process. When the Complainant’s evidence, that the Operations Manager told him “not to worry” after the initial meeting on 5 May 2017, is taken into consideration it appears likely, based on the balance of probability, that the Respondent’s view of the Complainant’s actions may well have changed over the period of the process, to the detriment of the Complainant.

Taken all of the above into consideration, it is difficult not to conclude that the eventual sanction of dismissal was disproportionate in all of the circumstances.

The final aspect of the disciplinary process considered relates to the matter of representation and the provision of an interpreter. The evidence adduced demonstrates that (1) the letter of 5 July 2017, calling the Complainant to the Disciplinary Hearing, clearly indicated that he may be accompanied by a colleague or trade union official of his choice and (2) that the Complainant indicated his willingness to attend the meeting on his own. However, notwithstanding that, I am of the view that it was remiss of the Respondent to have proceeded with the Disciplinary Hearing in those circumstances.

It is clear from the evidence that the Complainant had not been advised in advance that a possible outcome of the process might be the termination of his employment. This may have been further compounded or influenced by the comment from the Operations Manager that the Complainant had nothing to worry about. In such circumstances, I believe that a prudent employer would have affirmed the seriousness of the situation to the Complainant and requested him to reconsider his decision to attend the meeting on his own.

While I consider the decision by the Respondent to allow the Disciplinary Hearing to proceed without the Complainant being accompanied/represented to have been inappropriate, I’m strongly of the view that the failure to provide the services of an interpreter at this meeting was even more detrimental to the provision of a fair process.

The Complainant is a Russian national who, despite residing in this country for over 17 years, has a rather limited command of English. The Complainant was provided with the service of an interpreter for the WRC hearing and I am fully satisfied that without the assistance of the interpreter it would have been very difficult for me to conduct the Hearing. Given that experience, I am also fully satisfied that it was wholly inappropriate to conduct something as serious as a Disciplinary Hearing without providing the services of a translator.

I am also of the view that the Complainant’s language limitations bring into question his ability to have understood the training provided, which the Respondent placed much significance on both in terms of his having been made aware of the policies and in justifying its decision not to provide a translator.  

It is undisputed that the responsibility is on the employer to ensure that an employee, being subjected to a disciplinary procedure, is provided with fair procedure. Ensuring that the employee is fully aware of the process, the serious nature of the matters at issue and has a full understanding of what is transpiring at the hearing are all key components of any fair procedure. For the reasons set out above, I find that the Respondent, in this case, did not provide the Complainant with the fair procedure.

In summary, taking all of the above into consideration, I find that the Respondent, on a number of levels, as set out above, did not provide the Complainant with a fair procedure and that they did not behave in a reasonable manner in relation to other aspects of the process.

Consequently, I find the Complainant’s dismissal by the Respondent to be on unfair.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the sanction of dismissal in this case was disproportionate to the alleged action of the Complainant, was contrary to fairness and natural justice and that the Respondent had acted unreasonably in deciding the dismiss the employee.

Consequently, I find that this was an unfair dismissal and, therefore, in breach of the Unfair Dismissal’s Act, 1977.

Based on the above decision, I award the Complainant €40,000.00 in compensation.

Unfair Dismissal

Fair Procedure