Complainant

Respondent

Anonymised Parties

An Assistant Manager

A Forecourt Retailer

Representatives

Patrick O’Shea, BL, instructed by Kevin O'Gorman & Co Solicitors

Sherwin O'Riordan 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-00016397-001

19/12/2017

The complainant worked for the respondent between the 8th April 2009 and the 15th October 2017, when she was dismissed for falsifying company documentation. The complainant asserts that the dismissal was unfair, and the respondent opposes the claim.

The respondent outlined that the dismissal took place on the 15th October 2017. It operates a fast-food restaurant, attached to a service station. The respondent has an exclusive relationship with a restaurant franchise, who impose strict rules in uniformity with their worldwide procedures. Staff complaints in relation to the complainant’s behaviour and attendance were investigated, but the dismissal was based on the complainant’s failure to follow franchise protocols and the issue of food safety. The complainant was meant to attend work at 9am and complete franchise protocols for checking food temperatures and stock quantity.

The respondent referred to a detailed quality checklist for the 12th August 2017. The CCTV showed that on this day, the outlet was only opened at 10.21am as this was when the complainant arrived. It would not have been possible to compile the necessary checks on time. The complainant had to make inputs on a computer to record the checks. On this day, the inputs were made at 11.15am. There was also a late opening without protocols being followed on the 16th September 2017.

The respondent referred to the notes of the investigation. The respondent had a note taker and a colleague took notes for the complainant. While the respondent did not use the term “gross misconduct”, the complainant’s actions fell within the list of gross misconduct in the employee handbook. The respondent submitted that this was falsification as the franchise documentation must be completed before the start of the shift. These were pre-opening protocols and it was falsification to put them in afterwards. It submitted that the records are “false” because they were not created at the correct time. The entries for the 12th August 2017 were also not correct as the complainant is seen filling in the entries without doing the temperature checks on food products.

The respondent submitted that the complainant’s failure to avail of the appeal process was a “black mark” against her as she did not articulate why the dismissal was unfair. The respondent gave an hour to make sure the checks were completed. On these dates, the information was filled in within minutes, so the process could not have been sufficiently thorough.

The respondent outlined that the complainant’s allegation of bullying was news. She had also never mentioned doing checks as she went along and never mentioned writing temperatures down on a separate note. The complainant was given a formal warning for staying overnight and was sent home by her manager. She was not dismissed because of these issues. The respondent accepted that the issue that led to the initiation of the investigation was not the same issue that led to the disciplinary process.

In respect of the Lyons v Longford Westmeath ETB [2017] IEHC 272, the respondent submitted that the complainant never asked to cross-examine a witness and the issue did not lend itself to cross-examination. The respondent could not discuss the later findings at the disciplinary hearing as to do so would be pre-determination. The appeal could have been done by email and could have been lodged late. The respondent denies that the complainant worked excessive hours.

The disciplinary manager outlined that he clarified at the disciplinary hearing that the complainant had broken procedures. This was a health and safety matter and the respondent was required to comply with the franchisor’s protocols. The complainant had also accepted that she had not followed procedures on opening the restaurant.

The respondent submitted CCTV footage of the incident of the 16th September 2017. It shows the complainant sitting in the office, filling in a handwritten sheet without referring to notes. This takes seven minutes starting at 10.17am and finishing at 10.25am. The CCTV footage of the counter showed that the first sale took place at 10.19am.

The complainant outlined that she had worked excessive hours and worked 14 days without a day off. The process was flawed as the complainant’s accusers were not present at the disciplinary hearing to be cross-examined. There was no reference in the notes to what findings were reached. The issue of late opening was not discussed. The complainant said that the time to submit the appeal crossed with Storm Ophelia. She also had depression and under enormous stress. She had worked excessive hours and more than seven days in succession. The respondent was aware of these issues, and the threat to the complainant’s health and safety.

While the complainant opened the restaurant without doing the necessary checks, it was the respondent who was responsible for creating this situation. The complainant had also reported a bullying complaint against the manager and it was no coincidence that this manager was the same person who raised the issue regarding opening the store.

The person chosen as investigator was not appropriate as he had previously failed to deal with the complainant’s bullying complaint. The investigation went beyond the complaints made about her and dealt with the paperwork issue. This had not been part of the initial complaints. There was also no reference to her bullying complaint.

The complainant submitted that the respondent had acted with great haste and this led to unfairness. It showed that there was another agenda. She told the respondent that she had correctly followed procedures. The inputs were accurate and filled in whenever she did the check. She wrote the temperatures down as she checked.

At the investigation, there was no mention of the franchise protocols as the complaints were the complainant being late and drinking coffee. She needed the right to cross examine to challenge the allegations. The respondent gave five days to appeal and it was physically impossible for her to appeal. The respondent was not concerned about health and safety when this outlet had no manager for nine months, when the complainant did her job and acted as manager. When the respondent wanted to get rid of her, they raised the issue of health and safety. The senior managers had previously praised her. The complainant wrote to the WRC about the bullying issue.

In respect of mitigation, the complainant said she found another role in a service station after four months. She was paid an hourly rate of €10 and worked 45 to 50 hours per week.

CA-00016397-001

This is a complaint of unfair dismissal. The complainant commenced working for the respondent on the 8th April 2009 and progressed to the role of Assistant Manager. The respondent dismissed the complainant by letter of the 13th October 2017. It based the decision to dismiss on two findings, the first being “breach of company health & safety procedures: opened [franchise restaurant] without the correct paperwork and safety checks in place. Falsified documentation which could [have] endangered customers” and the second “brand exposure to the company: falsified documentation and massively exposed the company the brand and [the franchise]. Brand exposure with late opening of department without communication on more than one occasion.”

The statutory presumption is that the dismissal was unfair unless the respondent can show substantial grounds justifying the dismissal. While the letter of dismissal does not state “gross misconduct”, the respondent relied on this ground. The employee handbook sets out a non-exhaustive list of examples of gross misconduct and this includes “falsifying company documentation.”

The genesis of the disciplinary process were complaints made against the complainant regarding events in August and September 2017. The complaints mainly related to allegations of rude behaviour, although there is reference to the late opening of the restaurant. They were referred to investigation. The employee handbook refers to the respondent carrying out a “full investigation” and “where the company is considering disciplinary action, the employee will be advised in advance of the nature of the disciplinary meeting, given every opportunity to respond to any charges being made and may be accompanied by a work colleague/representative connected to the company but not a family member.”

At the investigation meeting, the respondent presented CCTV footage of the restaurant counter to show the time it opened. It is from viewing the CCTV that the respondent concluded that the complainant had also opened the restaurant without completing protocols. This formed the basis of the later conclusion of “falsifying documentation”. The outcome of the investigation states that the following facts: “noncompliance with [franchise] standards, policies and procedures” and “inappropriate behaviour towards fellow colleagues and performance”. The letter of the 1st October 2017 states that the disciplinary process will deal with the issues of “breach of [franchise] and [respondent] standards, policies and procedures on more than one occasion” and “lack of respect to colleagues and poor performance.” The letter also suspends the complainant with pay.

At the disciplinary hearing, the complainant accepted that she had opened the restaurant counter late and had not followed health and safety protocols. She denied being rude to colleagues. I note that the specific term “falsification” was not used by the respondent in the disciplinary invitation or mentioned at the disciplinary hearing.

In Allied Irish Banks plc v Purcell [2012] 23 ELR 189 the Circuit Court held:

 “The correct test is: was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view, another quite reasonably another view.”

In assessing the evidence, I note that the central allegation against the complainant changed during the investigation. The matters at stake became more serious. This occurred following viewing the CCTV. The issues are serious ones as they pertain to food safety and compliance with worldwide franchise standards. In these circumstances, so long as the disciplinary process was procedurally fair, the respondent was entitled to include the more serious issues relating to protocol compliance. The complainant accepted that she had not followed health and safety protocols. I note that the complainant was required to complete a daily sheet prior to opening. This did not occur and was completed later. The daily sheet is a substantial document and I count it required 89 entries of quality checks relating to food safety. It is obviously important as it relates to food safety.

I note, however, that both grounds cited by the respondent to justify the dismissal refer to the falsification charge. This specific allegation was not included in the disciplinary investigation and nor mentioned at the disciplinary meeting. I appreciate that it may have been included in the disciplinary outcome because this is given as an example of gross misconduct in the employee handbook. Falsification is qualitatively different to the other charges and the respondent may not have opted for the sanction of dismissal without its inclusion. The fact of the documentation being completed after opening and in breach of protocol is not falsification.

It follows from the above that the respondent has not rebutted the presumption that the dismissal was unfair, and the complaint is well founded. In assessing redress, I note the complainant’s substantial contributory role to her dismissal. I, therefore, award €2,000.

CA-00016397-001

For the reasons set out above, I find that the complaint of unfair dismissal is well founded, and I award redress of €2,000.

Unfair Dismissals Act

Allied Irish Banks plc v Purcell [2012] 23 ELR 189