Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00009380-001

23 January 2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00009380-002

23 January 2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00009380-003

23 January 2017

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

CA-00009380-004

23 January 2017

The complainant was dismissed following an incident of the 18th November 2016, which the respondent held to be gross misconduct. The incident involved the safe handling of food, in this case, chicken. The respondent denies the claim of unfair dismissal and the other complaints made pursuant to the Terms of Employment (Information) Act and the Organisation of Working Time Act.

In respect of the unfair dismissal claim, the respondent outlined that there had been a previous issue involving food safety a year before. It involved partly cooked food and training had been provided to the complainant. An online presentation on food safety was also available to the complainant. The respondent outlined that the complainant was a team lead. He was dismissed for gross misconduct and breach of trust. It referred to the definition of gross misconduct in the Disciplinary Procedure and the findings of the investigation. The complainant had said that he stored the food items in the freezer as he was going on a break.

In evidence, the Catering Operations Manager described the incident as a very serious one and could have caused food poisoning. The respondent had provided updated training and external audits. The complainant knew what was acceptable and it was not possible for the respondent that this could happen at a client facility, in particular in the light of a danger of a food poisoning outbreak. They had made clear what was not acceptable and had done all they could in the previous 12 months. The Catering Operations Manager said that he considered the complainant’s service but he also looked at the level of risk to customers and what had happened. The food item was in the danger zone when placed in the freezer and this represented a clear breach.

In cross-examination, the Catering Operations Manager gave an account of his academic qualifications and work experience. It was put to the Catering Operations Manager that he referred to there being a “huge knock-on effect” for the client from the complainant’s actions and how could this statement be made when no decision had been made; he replied that he was referring to re-tendering for this client’s contract and the knock-on effect. The Catering Operations Manager referred to possible consequences with the client and on this and other sites.

The respondent submitted that it considered alternatives to dismissal and this was based on the severity of the issues. Corrective action was unreasonable given the serious nature of the issue and the seniority of the complainant. There was enormous risk and this warranted dismissal. The colleague was more junior and was also subjected to disciplinary action. He had acted under the complainant’s supervision and received a final written warning. The respondent submitted that this showed that there was no automatic trigger of dismissal. While there was equality in their breaches, the employees had different levels of experience. The complainant was offered the opportunity to bring a representative and refused to bring one. The auditor’s email did not change the facts of this case and the basis of the dismissal. The quotes from the email in the letter of dismissal were immaterial.

The complainant had been fully trained and did not dispute what should be done. He knew it was dangerous and that the chicken posed a risk. The respondent was not given any comfort in the complainant’s answers. The respondent submitted that “the punishment fitted the crime” in catering in the light of the legal requirements related to the cooking of food. There was a risk to health, reputation and to the tender. The respondent submitted that it was not clear whether the chicken was disposed of, but it should have been disposed of.

In respect of the complaints made pursuant to the Terms of Employment (Information) Act, the respondent outlined that the complainant transferred to it further to a transfer of undertaking in 2008. A contract was issued in 2007 and the complainant raised no issue about the contract. The respondent submitted that canteen breaks were mentioned in the contract and the complainant was also supplied with records for hours of work and breaks. Staff memos also referred to break times and allowances. The respondent provided notice of breaks. The contract stated that hourly rate of pay and the total hours per week. The information supplied in relation to the transfer gave information regarding an increase in pay. The respondent submitted that it was not appropriate to make an award under the Terms of Employment (Information) Act.

In respect of the complaint made pursuant to the Organisation of Working Time Act, the respondent outlined that the complainant had been provided with a break entitlement fact sheet. He opted to take a second break at the end of his shift. The respondent had supplied the records and any breach of section 25 was a matter for the WRC inspection services. It was inappropriate to award compensation as the complainant had taken breaks and he decided when he took them. The complainant relied on a particular Labour Court authority involving the respondent, but this involved the issue of travel time.

In respect of the unfair dismissal claim, the complainant gave his account of the events of the 18th November 2016. He said that the auditor had said it was “okay” to use the chicken after it had been chilled in the freezer. He submitted that his dismissal was disproportionate. He should have been given a warning and an opportunity to improve. The disciplinary procedure provides for a staged process and a warning was sufficient in this case. The colleague was given a warning and his employment was not terminated. The complainant referred to the cases of Bank of Ireland v Reilly [2015] IEHC 215 and Lyons v Longford-Westmeath ETB [2017] IEHC 272. He outlined that he had not been afforded the right to have legal representation and the opportunity to cross-examine the auditor. The contents of the auditor’s email of the 19th December 2016 were not given to the complainant and this email played a key role in decision-making.

The complainant outlined that he has not worked full-time since his dismissal. He exhibited extensive efforts to find alternative employment. He had worked in casual roles and earned €14,699.88 since his dismissal. His loss to the date of the adjudication was €11,242.10. The complainant worked for the respondent for ten years while his colleague worked for the respondent for two or three years. He submitted that this was a case where the punishment did not fit the crime and he should have been given the opportunity to improve.

In reply to the respondent, the complainant earned €1,000 per month and would have been on €36,054 per year gross. The complainant submitted that the chicken was used that day and served to customers. The auditor said that it was okay to use the chicken.

In respect of the complaints made pursuant to the Terms of Employment (Information) Act, the complainant outlined that the statement provided by the respondent did not comply with section 3 of the Act. It did not comply with subsections (g) and (h). He was not provided the notice periods in respect of the National Minimum Wage Act and information related to breaks. There was also a breach of section 5 following the failure to notify the complainant of the change of the name of the employer.

In respect of the Organisation of Working Time Act complaint, the complainant submitted that he did not receive proper breaks. He commenced work at 7am and finished at 3pm. He received a 15-minute break at 10.30am. Referring to Labour Court authorities, the complainant submitted that an award should be made to compensate for the breach as well as the recovery of loss. Section 25 of the Act imposed an obligation on the employer to keep records. This provided for a rebuttable presumption of non-compliance. There was a high onus on employers to ensure that employees took their breaks.

CA-00009380-001

This is a complaint made pursuant to the Terms of Employment (Information) Act. The substance of the complaint is that the complainant was not supplied with a notice of his terms of employment at the time the respondent took over catering services at the client site. The respondent’s predecessor provided the complainant with a contract of employment dated the 14th November 2007 as well as information compiled at the time of the transfer of undertaking. Given the detail of the documentation supplied by the respondent, the complaint is not well founded.

CA-00009380-002

This is a second complaint made pursuant to the Terms of Employment (Information) Act. The complainant asserts that the statement provided by the respondent does not state his holiday entitlements as well as contract provisions arising from the National Minimum Wage Act. The contract and the transfer of undertaking document both address the taking of annual leave. It is true that the contract does not include the required information arising from the National Minimum Wage Act. The complainant’s earnings were above the national minimum wage. Applying the decision of the Labour Court in Board of Management Kilmeen National School v O’Driscoll (TED1721), I find that the breaches are technical breaches and do not merit an award of redress.

CA-00009380-003

This is a complaint made pursuant to the Organisation of Working Time Act. The complainant asserts that he was not afforded a 30-minute break during his regular eight-hour working day. The respondent replied that the complainant took one break during his shift. It states he took his 30-minute break at the end of his shift, which was scheduled to finish every day at 3.30pm.

It appears from the documentation that the complainant’s contracted end time was 3.30pm; this is stated in the contract of employment and the transfer of undertaking document. The time and attendance sheets provided by the respondent indicate that the complainant ended his shift between 14.15 and 15.30 between June and November 2016. This information does not record what breaks the complainant took.

It is apparent that a practice of taking the more substantial 30-minute break suited the parties. The respondent did not take issue with the complainant finishing before his 3.30pm scheduled end time. On many, but not on all occasions, the complainant was clocked out before 3.30pm.

Section 12 of the Organisation of Working Time Act provides:

12.— (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

The Organisation of Working Time Act is clear that a break at the end of the shift does not meet the obligation set out in section 12. The evidence of the events of the 18th November 2016 portrays this as a busy kitchen. The evidence also suggests that the respondent did not take issue with the complainant clocking out before 3.30pm. I am satisfied that the pace of work in this kitchen falls within the ambit of “required” set out in section 12. It is not a defence that the complainant chose to work through the shift and to sometimes clock out early. The claim is, therefore, well founded.

In assessing the gravity of the breach, I apply the authority of Svoboda v IBM Ireland Ltd (DWT0818) in assessing the degree of “culpability” of the employer and employee in the breach. Taking these factors together, I award redress of €1,500.

CA-00009380-004

This is a complaint pursuant to the Unfair Dismissals Act. The complainant’s employment commenced on the 18th December 2006 and ended on the 12th December 2016. The letter of dismissal refers to the complainant’s very serious breach of procedures which irrevocably breached the bond of trust. At the adjudication, the respondent pointed to the following examples of gross misconduct, as set out in its disciplinary policy: “breach of company health and safety rules or failure to comply with employee responsibilities under the Safety, Health and Welfare at Work Act 2005 or any action that threatens the health and safety of employees or other persons or failure to comply with any health or safety requirements at Client or Company site” and “Negligence which causes, or could have caused, injury, loss or damage to the company, client, colleague’s property, and customer equipment, property or premises.”

The respondent describes the incident of the 18th November 2016 as a very serious breach. It is difficult to disagree with this characterisation. The complainant and a colleague had partly cooked chicken with the intention of completing their cooking in ovens. They were preparing lunch in the kitchens of a client production facility. The ovens were full of other items. The investigation meeting considered why the complainant did not take low-risk items (for example, baked potatoes) out of the oven and put in the high-risk chicken items. In any event, the chicken was placed in the freezer, in breach of HACCP policy. This was discovered by an external auditor. It is unclear what happened to the chicken. The complainant states that they were served, while the respondent was clear that this should not have happened. It is apparent from the minutes that the decision to place the chicken was made because the complainant wanted to take his break.

The issue in such gross misconduct unfair dismissal cases often centres on whether the employer’s decision to dismiss is within the reasonable band of responses. This includes the application of fair procedures, so that the employer makes its decision, having given the employee the opportunity to present their case.

In this case, the incident of the 18th November 2016 was subject to investigation, a disciplinary process and then an appeal. The investigation minutes identify that there was a breach of HACCP procedures. The minutes were forwarded to the disciplinary meeting. The file note of the disciplinary meeting states “… [the disciplinary team] had reviewed the material and notes to date and that it would be the responsibility of the disciplinary team to decide what sanction would be applicable to [the complainant] in this instance.”   The disciplinary meeting spent 60 minutes going through the incident in detail. The letter of dismissal cites the complainant’s failure to follow the correct HACCP procedures, the reputational damage for the respondent and his responses.

The difficulty with the approach of the disciplinary process was that it did not first consider whether a disciplinary breach or breaches had occurred and how serious any such breaches were. It took the breaches identified in the investigation as disciplinary breaches and then, explicitly, only considered the issue of sanction. At the adjudication, the respondent pointed to the respondent disciplinary policy to suggest where the breaches might fit in. This did not occur during the disciplinary process. This leads to a finding that the complainant’s dismissal was unfair. Such a breach is not a technical breach as it involves the conflation of the investigation and the disciplinary processes.

In assessing redress, I note the complainant’s efforts to mitigate his loss. I note his financial loss to the date. In the circumstances, I find that the complainant is 50% liable for the dismissal. I make an award of €6,000.

CA-00009380-001

The complaint made pursuant to the Terms of Employment (Information) Act is not well founded.

CA-00009380-002

The complaint made pursuant to the Terms of Employment (Information) Act is not well founded.

CA-00009380-003

The complaint made pursuant to the Organisation of Working Time Act is well founded and the respondent shall pay redress to the complainant of €1,500.

CA-00009380-004

The complaint made pursuant to the Unfair Dismissals Act is well founded and, for the reasons set out above, the respondent shall pay redress to the complainant of €6,000.

Terms of Employment (Information) Act

Board of Management Kilmeen National School v O’Driscoll (TED1721)

Organisation of Working Time Act / section 12

Svoboda v IBM Ireland Ltd (DWT0818)

Unfair Dismissals Act