Complainant

Respondent

Anonymised Parties

A Chef

A catering provider

Representatives

None

IBEC

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-00015197-001

22/10/2017

The complainant, a chef, was dismissed from his employment due to food safety breaches, including relating to the management of allergens. He asserts that the dismissal was unfair; the respondent denies the claim, asserting that it was entitled to dismiss the complainant for gross misconduct.

The respondent outlined that the complainant was dismissed on the 14th August 2017 and that the fact of dismissal was not in dispute. On the 15th October 2015, the complainant moved to catering service of a large banking client and was the most senior chef. This was a transfer on a higher salary to the role of ‘Head Chef’. The manager and supervisor were based there full time. The respondent conducted mid-year and end of year Performance Development Reviews and could not say how the complainant fared in the most recent review. The complainant was part of the recruitment process for kitchen porters and chefs and could put staff through a disciplinary process, which provides that it is for someone else to make a decision to dismiss.

There had been a poor audit in 2016, which showed some gaps and discrepancies. Training was provided. There was an audit on the 28th June 2017 and the failures identified were more serious and this was when the allergens issue first arose. The display of allergen information became a requirement in December 2015. In 2015, the respondent provided formal training for all managers and chefs and online refresher training. After the 2016 audit, the health and safety manager did training on the issues arising in the audit, but these issues arose again in 2017 and were worse.

The Operations Manager outlined that he met the client every two weeks and sometimes every week. He also met the Unit Manager and followed through on messages, including on allergen training. He would pop in to the kitchen to say hello and they knew who he was. He met the complainant many times before the disciplinary process. He was in the business on the day of the audit. He was not aware how severe the issues were. The client also said that it would have to escalate the issue as the audit findings were so serious. The respondent assigned an investigator to the matter and said there was enough evidence to engage the disciplinary process.

The Operations Manager said that he did not want to treat the Unit Manager and the complainant differently. They went through the audit findings. He adjourned the meeting on the 14th August 2017 to discuss the process with HR. He was only taking account of the June audit and not the July audit. The respondent could be audited at any time by the HSE and could be closed. The Unit Manager had not told him how serious things were. The respondent recommended that a folder of allergens be available for customers to consult. This had to be accurate and on the day of the audit, it was inaccurate.

The disciplinary process was not initiated because of the second audit but because of the failure to follow company procedures at the time of the first audit. The Operations Manager was aware that the complainant left work at 1.30pm but that his shift finished at 2pm, as there was cleaning and documentary work to do. The complainant had mentioned his diabetes prior to the audit, but he could take as many breaks as possible. The Operations Manager had asked for the doctor’s note as he wanted to know how many breaks were needed. The complainant came in at 6am but did not check the kitchen. The complainant wrote his own menus and could plan his working day accordingly. He did not think he laughed at the complainant on the day of the hearing.

The complainant changed his working hours after the first audit in 2017 to stay late and this helped the management of the kitchen. He had never raised issues other than the oven, which was in the process of being replaced and this took longer than it should have. There was a grease trap in the kitchen, but this was blocked with food debris. This could cause drains to block and water to come into the kitchen. The respondent worked with the client to fix and this was solved after the audit.

The Operations Manager agreed that this was a small kitchen and required the chef to work methodically. He said that in his 26 years with the respondent, this was the second worst audit he had seen. He attended conference calls with senior managers of the client to discuss this failure as this was the only site that failed the audit. It was the policy of the client that anyone whose employment is terminated must be removed straight away and return their passes. He said that there were two chefs at the time of both audits. In later evidence, the Operations Manager said that there would be other people in the kitchen even if they were not always chefs. Staff would always back fill positions. It was for the Unit Manager to ensure that they had the required head count. Nothing was indicated to the respondent prior to the audit that there was an issue in the kitchen.

The Appeals Manager said that he was new to the company when he was assigned to hear the appeal. He met the complainant with an open mind and did not take dismissal lightly. The complainant was a good chef, whose food was always good. He could not accept that the complainant took the audit seriously and had concerns regarding customer safety and the respondent’s reputation. He spoke with the auditor and the Operations Manager and saw that the complainant had received training in 2016. He acknowledged that the complainant submitted information about problems in the kitchen.

In closing comments, it was the respondent’s position that the dismissal was fair. The audit identified serious issues, which could have resulted in the closure of the unit or in fatalities. The seriousness of the issues was investigated and referred to an independent disciplinary process. The labour structure had not changed and the complainant’s lack of ownership regarding the seriousness of the findings led to the decision to summarily dismiss him. The policy grounds included serious breach of food safety and the complainant received fair procedures and natural justice. The appeal was heard by an independent manager, who made detailed findings based on the severity of the issues. The respondent submitted that this was a procedurally and substantively fair dismissal.

The complainant said that he had been with another client and followed his manager when she moved to this banking client. He had worked at the first client for ten years. They were a good team, but he noticed that there was a problem with old equipment in the kitchen. There were issues with the oven and dishwasher. They did their best and some staff were complaining. The manager had to leave for health reasons and in 2016, the Unit Manager started. This is when procedures changed. He changed everything, and the Unit Manager hid the calorie and allergen signs. The complainant reported this to the Unit Manager and asked why he did not follow procedure. He said that he was going to do things his way. The complainant started to push the Unit Manager and would list allergens on menus.

The complainant said that the Unit Manager was in place before the 2016 audit. The complainant was not aware of the results of the audit and could not remember whether training took place after this audit. He said that there were lots of agency staff and it was hard to train them. A colleague sent a few letters to complain about the pressure in the kitchen but never received a reply. The complainant did not send letters and reported issues verbally. After the colleague left, the remaining three staff had more work and it was hard to take breaks.

In mid-March 2017, the complainant attended hospital with the onset of diabetes. He reported this to the Unit Manager and said he needed breaks and to have meals at the same time of day. He went on annual leave in June 2017. After he returned, he was alone in the kitchen as the second chef went on annual leave. There was no agency support, so he had to do the work of two chefs and to cover the kitchen porter, who was agency.

The complainant said that there were occasions when his sugar dropped, and he felt dizzy. He got a liver infection. He was on sick leave for three days in July and visited family. On his return, he found out that on Monday that there would be an audit on the following Wednesday. He reported to the Unit Manager about the gaps in HACCP and the dirtiness of the kitchen. There had been three agency chefs covering his annual leave. He worked alone on the Monday, Tuesday and Wednesday. He should have closed the kitchen. There was a big issue with the client, who wanted high standards. This led to big pressure. It was hard with his diabetes as he could not focus on one thing and this led to mistakes.

The complainant said that the 2017 audit was the first he was provided with. He saw this document the week after the audit. They did not have a staff meeting following the 2016 audit and this differed from previous years. He said that the 2017 audit was not very bad. The audit said that the fridge was off, but the light on the fridge was broken. There was a new kitchen porter who did not want to sweep. The gaps existed on the audit day, but they arose when the complainant was on annual leave.

It was too much work for one person. He had to work with a disability. He spoke with the Operations Manager on the day of the audit, but he laughed when the complainant said that he needed extra breaks. The Operations Manager asked for a note from the doctor. The complainant later went to visit his doctor who advised that he should watch his health. The complainant submitted a letter from the GP. The complainant said that he had never spoken to the Operations Manager before the day of the audit and he never introduced himself.

The complainant said that he thought he would have a chance to fix things, with a little help. He wanted to show to the Operations Manager that he could work with a second chef. An agency chef started the following week and helped with labelling. It was much easier in the weeks after the agency chef started. There was a second audit on the 26th July 2017 and the complainant went on annual leave between the 19th July to the 8th August 2017.

The complainant attended a disciplinary meeting on the 14th August 2017. The complainant said that the investigator had worked as a chef and understood why this happened. The Unit Manager said that the complainant should not worry, and they would get a warning. After the disciplinary meeting, the Operations Manager said that the complainant should empty his locker and go home. The disciplinary meeting started at around 10am or 11am and lasted between 30 and 45 minutes. The complainant had to take his knives and clothes and go home. A few customers saw this and wished him the best.

The complainant outlined that he appealed to HR. They listened but the complainant did not feel any support. He wanted to follow the procedure. He also wanted to say ‘thank you’ for the chance to say that the decision was too harsh, given his track record. He commented that this was how the respondent treated him after 10 years. He said that as soon as the respondent found out he was diabetic, they felt that they did not need him anymore.

The complainant said that when you work 10 years in one place, you lose your confidence. He started looking for work the following week and registered for agency work on the 14th August 2017. He started agency work on the 23rd August 2017 for four months. He met a former Operations Manager and started work on similar terms and conditions on 6th November 2017. The complainant said that he expected someone to say sorry to him. The complainant was not surprised that the Unit Manager was dismissed, and he also attended a disciplinary meeting on the 14th August 2017.

In reply to the respondent, the complainant commented that training would take two or three hours. Other units did training at head office, but they could not do so as the Unit Manager would not allow this. The complainant never had time to do training, including the online allergen training. He did this in his own time after the audit. Agency staff were not the same as full-time staff. There were two chefs on duty at the time of the second audit. The complainant said that he used to work 7am to 3pm and was asked to start earlier to cover breakfast. He then worked between 6.30am to 2.30pm so was asked to start at 6am, to finish at 2pm. He gave the Unit Manager documentation regarding his disability and the Operations Manager should not have asked him for another letter. The complainant said he worked to 2pm every day and could have been in the storage area when the Operations Manager called in. There was only one chef on duty from the 5th June to the date of the audit. The complainant was on his own in the kitchen.

In closing, the complainant outlined that the parties would not be here if he had received the necessary help and support. He was a person with a disability left alone in the workplace and blamed for all mistakes and blamed for everything. He incurred big financial loss as he earned less as an agency worker.

CA-00015197-001

This is a complaint pursuant to the Unfair Dismissals Act. The complainant worked for the respondent between the 26th November 2007 and the 14th August 2017. He was summarily dismissed at the disciplinary meeting of the 14th August 2017 and informed by letter of the reasons for his dismissal on the 29th August 2017. The dismissal was confirmed by the appeal outcome, dated the 17th October 2017. The dismissal is grounded on gross misconduct, namely “serious breach of health, safety and hygiene procedures including food safety.”

The dismissal arises from a gap audit of the 28th June 2017. This found “major non-conformances” in food safety, requiring immediate action. This included not providing correct allergen information, for example gluten, nuts and dairy. It identified food handling and cleaning issues, as well as general structural and training issues. The complainant pointed to issues arising with broken equipment in the kitchen, for example the dishwasher and an oven. The gap audit report of the 26th July 2017 showed significant improvement. While the HSE inspection of the 10th November 2017 advised that a ventilation system be installed to address a “wall of heat” in the kitchen, the report found that the kitchen was then in compliance.

The questions in this adjudication are whether the dismissal was procedurally sound and whether the respondent’s decision to dismiss the complainant was within the range of reasonable responses for an employer. In respect of procedure, I note that the investigation followed the detailed gap audit. The complainant was able to contribute to the investigation. The respondent invoked the disciplinary process and the invitation letter warned that this could lead to his dismissal. While it is striking that the complainant was informed of his dismissal at the end of the disciplinary meeting, the thoroughness of the gap audit, the investigation and disciplinary processes do not render as unfair the decision to immediately dismiss him. The respondent supplemented this with the detailed “notice of dismissal” of the 29th August 2017. The respondent has also explained why the complainant had to be escorted off the site; this was client policy.

In respect of substantive fairness, I note the importance of food safety and proper food handling, in particular relating to allergens. The issues raised in the gap audit were serious ones. I appreciate that the complainant faced difficulties with the turnover of agency staff and with broken equipment. I note his health issues. I also note his longstanding in the company and his successful working relationship with managers; he had worked with different managers at several high profile clients. The complainant criticises the performance of the Unit Manager (who was also dismissed). Given the complainant’s standing with the respondent, it is notable that he did not raise the issues about the Unit Manager with the respondent.

Whether or not the complainant was a senior chef or just a chef, he was an established and permanent member of staff, tasked with providing a catering service to employees of the client. Central to this role is compliance with food safety standards, including those pertaining to allergens. While the later gap audit pointed to improvements in the kitchen, I find that the respondent was entitled to reach a finding of gross misconduct because of the gravity of the issues identified in the first audit. I also find that the sanction of dismissal was within the range of reasonable responses, in spite of the improvements shown in the audit report of the 26th July 2017 and the complainant’s undoubted good service with the respondent. While another employer may have resorted to a final written warning or other sanction, this employer, the respondent, was reasonably entitled to act as it did. For these reasons, the complaint of Unfair Dismissal is not well founded.

CA-00015197-001

For the reasons set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is not well founded.

Unfair Dismissals Act

Reasonable range of responses / food safety / allergens