Complainant

Respondent

Parties

Mary  Walshe

Get Fresh Vending Limited

Complainant

Respondent

Anonymised Parties

 A catering assistant

A catering company.

Representatives

Self.

Company Director.

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-00023312-001

17/11/2018

The Complainant was employed as a catering assistant with the Respondent from  August 2014 until 21^st September 2018.

This complaint was received by the Workplace Relations Commission on 17^th November 2018.

The Complainant alleges that she resigned from her post on 10th September 2018 due to the Directors attitude and behaviour towards her. The Complainant believes the Director left her with no other option but to resign from her post as catering assistant due to his disregard of health and safety in the workplace and lack of fair procedure and natural justice towards her. The following are the main events leading to her dismissal, in her own words:

March 2017

I spoke with my line manager, (chef), with regards to my concerns over recent changes in staff and their working hours that had an impact on me.  She informed the Director of my concerns.   I received a letter from the Director, dated 15th March 2017 asking me to supply a fitness to work certificate. I wrote back to him on 20th March 2017. I received no response. I provided a Fitness to work Certificate as requested with cover letter, noting that he did not respond to my previous letter.  My doctor was surprised that I was asked for a fitness to work certificate, and she noted on the certificate that I have never attended this practice for a sick certificate previously.  Please note that I have never had a day off sick from work prior to this request.

 February 2018

I had a fall at work.  This was due to a wet floor, and the absence of a wet floor sign to warn people of the potential hazard.  The catering assistant, who had washed the floor at the time, had no basic food hygiene certificate/primary food safety course.  No inhouse training had been provided to that catering assistant.  The catering assistant was returning from a long career break, and I believe that if in-house training was provided on starting employment this accident would not have happened.  I still feel pain from this this fall.  At the time of my accident, no safety shoes had been provided to staff.   The Director had previously sent a text to the work mobile, informing staff that due to new insurers, safety shoes are now a new requirement for staff.  I responded, and asked were these not a PPE, and if so should the onus not fall on the company to provide these.  Once again, I received no response or recognition to my query.  I believe that if the MD followed up on my query, rather than ignoring it, this accident may have been avoided. 

PPE (PERSONAL PROTECTIVE EQUIPMENT) - the only PPE that is supplied to staff are protective gloves. They never supplied safety shoes, hairnets, aprons etc. that I believe to be a PPE requirement in a working kitchen.  I purchased my own hairnets and aprons throughout my employment. After my fall, I was provided a pair of safety shoes, free of charge. However, I note that on my contract of employment for the academic year 2018/19, that the Respondent were informing staff that safety shoes will be provided, but at a cost of €20.

May 2018

I emailed the Respondent with regards to my Food Hygiene Certificate/Primary food safety course. I enquired how often this needed to be updated. No response, acknowledgement or advice was received.

25th May 2018 

There was an incident in the workplace, following an evening function in the school on 24th May 2018.   I did not work this shift.  This incident involved the use of my PPE, purchased by myself, by another member of staff, who had pervious mentioned in general conversation in the kitchen that she had not washed her hair for three days due to an ear infection – my line manager was aware that she used my PPE and did not stop her, despite the fact she knew that the catering assistant had an ear infection!   PPE should be provided by the employer. This is Law under the Safety, Health and Welfare at Work (general Application) Regulations 2007 Part 2 Chapter 3.  Hair nets have never been available for staff, in fact, I supplied my own spare hair net to the other catering assistant on her first working day, after which she wore her own baseball styled hat.  Company policy states, under medical: “staff suffering from boils, etc. / or infections of the mouth, throat, ears and eyes will not be permitted to work in areas where food is exposed” – there was no management control measures in place at this time to deal with this, therefore, not only was I being exposed to the risk of infection however, the staff, pupils and parents were also being exposed to the risk. Allowing that catering assistant to work in the food industry, with an infection, was not ethical of the employer, and illustrates his lack of care towards staff and clients.

29th May 2018

Statements were taken by a member of staff from the head office. I continued to work with the other catering assistant and the chef, without any further issues or problems.  We finished work for the summer break (June 2018) 

June 2018 

As usual, I received my contract of employment for the academic year 2018/19, congratulating me on another year successfully completed. I signed the contract and returned it with my Employee Engagement Form and relevant paperwork as requested.

July 2018

I received a registered letter in the post, Re: Pre-Disciplinary. I phoned the chef, my line manager, to see if she knew what the meeting was about. She informed me that it was probably just

going to be a chat between the Director and myself about what had happened, and not to worry.  I phoned and apologised that I couldn’t make the meeting and agreed to meet with the Director on a new date, Wednesday 25th July 2018.  I received a letter from the Director, dated 18th July, confirming the change.   Prior to this meeting, I emailed the Director and asked him for the statements made after the incident. The Director provided these but did not provide the original signed handwritten statements.  I have requested these original statements on several occasions, and still haven’t received them.  I was very surprised by the statements I received. Having read the statements I was provided with, I feel errors were made when they were typed up.

25th July 2018

 Pre-Disciplinary Meeting.

I met with the Director.  I was so shocked and stressed by the thoughts of this meeting, I wrote a letter, explaining the incident, what I had done, why I had done it, and providing photographic evidence supporting my statement. I feel the nature of this incident did not warrant a disciplinary.  I brought my friend with me to take notes, if necessary, due to my stress and anxiety, I knew I wouldn’t have been able to digest all the information discussed.  The Director thanked me for the letter, and we discussed the incident.  The Director also gave me the opportunity to meet with both the chef and the other catering assistant, that day, to challenge their statements, however, I am not confrontational and felt I had explained myself both in the letter and at the pre - disciplinary.  The meeting ended, the Director said that I would hear from him, by letter, by Friday 27th.

Friday, 27th July 2018

I received a phone call from Head Office, asking to meet with the Director again on Tuesday 31st. I was unable to make this date and asked to re-arrange.  I did not hear back from Head office, so I emailed Head Office, to let them know that I’m still waiting for a date, and that I was also waiting for my letter from the Director.  I received an email from Head Office, asking could I meet on Thursday 2nd August 2018. Head Office noted that they will inquire about the letter from the Director.  I didn’t receive the letter.

2nd August 2018 – 2nd Pre-Disciplinary Meeting with Managing Director.

The Director greeted my friend and me.  He read a ‘Final Warning’ to me and asked me to sign it. I tried to discuss this with him, however he said there was to be “no discussion” and that I was just to sign the document. He also wanted my friend to sign it as a witness. I was so flabbergasted by this Final Warning, that I asked could I discuss matters confidentially with my friend, as he allowed me to do at my first meeting. The Director denied me this opportunity and told me to sign the document.  I refused to sign the document.  He asked my witness to sign it, she refused as well.  He told me I had 2 working days to appeal the decision to the other Managing Director.  I was devastated, outraged and disgusted by his treatment and dismissal of me, that I was reduced to tears. I was emotionally distressed and upset.  I booked an appointment with my Solicitor, to discuss options available to me.  My solicitor sent a letter to the Director on my behalf. The MD did not respond to this letter, until I issued him with my letter of resignation via email, approx. 4 weeks later.

 August 2018

I went to see my doctor.  This was because I was mentally exhausted, emotionally disturbed, and was having restless nights thinking about the incident and what I had done wrong.  I felt my character had been defamed.  The doctor said I had “acute stress reaction”, engendered by the Director’s action towards me. She also stated that I had mental strain related to work.  She gave me tablets to relax me.  She also feels that not only has this incident impacted my well-being, however, it has also contributed to my recent issues with regards my blood-pressure.   The doctor also suggested that counselling might do me good.

 I was due to return to work on Monday 27th August, however, I was still stressed and upset due to the Director’s treatment of me.  By not responding to any of my letters, I felt marginalized and unwanted in the workplace.  The Director breached his own procedures, and my contract of employment, by not following the company’s disciplinary procedure. This issue is also highlighted in my solicitors’ letter.  The disciplinary procedure states that “in most instances, the Company will initially attempt to resolve any complaint in an informal manner…” the Director clearly did not attempt to resolve this issue in an informal manner, which further contributed to my stress.  Furthermore, the disciplinary procedure outlines 4 stages an employee must go through in order to warrant the issue of a final written warning. As outlined in the solicitor’s letter, the company made absolutely no attempt to offer counselling, issue a verbal warning or give a written warning. This is a clear disregard for company procedure and my contract of employment.  There were never any other previous allegations/complaints made about me in the Workplace, and the fact that the Director believed that this issue warranted a final written warning demonstrated his lack of fair procedure.  Moreover, he also breached an integral part of my contract of employment by not following the Company’s “personal hygiene policy”. Under this policy, namely, the Medical section, it states that “staff suffering from boils, infected wounds and infectious skin disorders on their face, hands or forearms and/ or infections of the mouth throat, ears and eyes will not be permitted to work in areas where food is exposed”. Seeing as the other catering assistant was permitted to work with an ear infection, not only was the Director breaching policy, but, as stated previously, was also exposing both myself and clients to the potential hazard of catching an infection. This illustrates his lack of concern for staff.   If MD /line manager had followed procedure, this incident would never have happened.  There was no documentation/record of the ear infection.

I have highlighted the lack of health and safety within my unit to my line manager, and on occasions the Director himself. I feel this incident has provided him an opportunity to force me to resign.  As an employer, the Director has a duty of care to staff. The Director did not fulfil his duty of care especially when himself, and the chef, permitted the use of an e-cigarette in the kitchen by other members of staff.

The Final Warning will remain of my record for 6 months, which has added to my stress, ill-health and has knocked my confidence with regards looking for a new job.   If I was emotionally and physically fit to find new employment I would not feel confident looking for a reference of him. This is due to his negligent attitude towards me.

The Director still hasn’t supplied me with my P45 which further illustrates his negligence towards me as an employer.

Working hours were reduced over my period of my employment with the Respondent as follows;

When I originally arrived the hours for my current position were; 8:30 – 2:30 Hours were then changed to 9:00 – 2:30 Hours changed again to 9:30 – 2:30 Despite changes in working hours, and the increase in the number of pupils in the school, the Director still expected the same amount of work to be done. This further added to my work-related stress. There was no discussion with staff about the changes, they were simply implemented.

Although requested, the Director has not provided me with the original signed minutes for the disciplinary, and to date, they still haven’t been issued to me.

 Due to my distress, I contacted a health and safety at work expert, to see whether the health and safety issues that I raised were valid.

I believe the Director gave me this final warning because as I was still on “light duties”, due to my fall in the workplace in February, and, furthermore didn’t appreciate me highlighting health and safety issues in the workplace. I feel this was an indirect way of getting rid of me, and not having to deal with my ongoing health problems, precipitated by the fall. As an employee, I have a responsibility to take reasonable care for my own safety. I believe as a director he lacks responsibility by not ensuring enough resources were made available to the unit. Therefore, by not managing / ignoring my Health and Safety in the workplace, he has not tried to protect me. I believe this is his responsibility by law.

My understanding is that I have followed all company policies and the director has not, and I have been penalised for this. Three people worked in my unit, two catering assistants, and one chef (line manager). Due to the high staff turnover in this unit, the burden fell on me to show the new members of staff, “the ropes”. This was because my line manager had no desire to train these new members of staff. Due to my managers unhelpful nature, showing new staff “the ropes” became the norm for me. There was lack of communication between new staff and the manager, which led to on occasions, organizational silence and an undesirable atmosphere. Training staff added to my duties, which created a superfluous amount of stress in my life, especially when new members of staff didn’t appreciate someone, in the same position as them, advising them on what to do. It was the accumulation of all the above issues regarding the Respondent that caused me to resign. The director left me in such a position that it would not have been plausible for me to go back to work. 

Furthermore, after the way he treated me, and his total disrespect for company policies and health and safety procedures, I would not be mentally able to work for his company again and would feel unable to voice any future concerns that I may have if I did continue to work for him. Working for a company that in no way supports their staff was challenging and has significantly impacted both my mental and physical health. A disciplinary procedure was provided to me on commencement of employment, and again during this incident. It is blatant that the director did not follow the provisions of his own procedure, which is in breach of an integral part of my contract of employment.  As seen in my solicitors’ letter, although the director told me I have 2 working days to appeal the Final Warning, he provided me with no written mechanism for appealing A Final Warning. My reason for not appealing the decision is highlighted in the solicitor’s letter. Furthermore, at the time the final warning was issued, I was not mentally fit or able to challenge the director’s decision and go through the same process again. As far as I am concerned, I was honest and open, and I had no more evidence to give. There was no point in going through that degrading process again when it was unlikely that the director’s decision would not have been overturned.

Submission of the Employer/Respondent

1. The claimant was employed as a catering assistant. She was employed since September 2014 and that at the arrival of each summer break the employment was terminated with the P45 for social welfare purposes and then at the end of the school holidays she was offered a renewed contract.

2. The claimant claims she earned €224 gross per week or €223 net per week. This is disputed. See a copy of the P60 for the last full year of employment 2017.

3. Regarding the incident 25/5/18, a fellow employee (Ms BC) reported the incident to the principal of the school who reported the matter to a Director (Mr BMcG) and said that the claimant's behaviour was unacceptable in the school as it was in front of students. Ms BC then made a complaint to the Respondent company; her employer and Mr JD conducted an investigation. The matter was moved to a disciplinary hearing which was conducted by Mr BMcG.

4. The claimant was invited to a disciplinary meeting 17/7/18 and 18/7/18 to take place on 25/7/18. The claimant was furnished with a copy of the disciplinary procedure. She was furnished copies of statements from her two fellow employees. It was clear from the letters that what was taking place was a disciplinary meeting on the allegation against the claimant.

5. The allegation was that on 25/5/18 the claimant abused Ms BC for having worn the claimant's hairnet while working and that this had been witnessed by the chef/manager.  

6. The claimant made a statement in response to the allegation.

7. The Complainant was somewhat apologetic for her behaviour in the first disciplinary meeting. At this meeting the claimant was offered the right to question the two witnesses but did not take up this right. The second disciplinary meeting was the purpose of informing her of the decision.

8. Billy McGill Director issued a final written warning to the claimant on 2/8/18. The last paragraph of the warning indicates the claimant could appeal the warning. The claimant accepts that she was told she had 2 working days to make the appeal. This is in accordance with the procedure.

9. Instead of appealing the warning the claimant sent a letter from her solicitor dated 9/8/18. It made the point inter-alia that the disciplinary process was not in accordance with fair procedures and that there was no attempt to resolve the complaint informally and that the employer should not have jumped to a final written warning. There was a request to retract the final written warning.

10. The Complainant resigned by letter 10/9/18. Apart from arguments as to why the claimant should not have received a final written warning the claimant complains of other things which she says led to her resignation including in summary.

·         A complaint in March 2017 regarding changes in staff working hours.

·         The claimant allegedly suffered a fall at work in February 2018.

·         She complains that safety shoes were not provided and when they were it was at cost

·         She e-mailed on 10/5/18 querying how often she needed to renew the food hygiene certificate.

·         The claimant was requested in an e-mail 27/8/18 to attend pre-start meeting with management.

·         She claimed she was owed €95.50 in relation to lost hours attributable to the disciplinary hearing.

·          She said she was denied handwritten minutes of the disciplinary meetings,

11. Specific to the allegations the claimant makes in relation to the incident 25/5/18 and the warning on foot of this 2/8/18, the employer makes the following additional points inter alia:

         I.            Hair nets are generally provided and sourced by unit managers directly. The employer has a supplier for them and supplies them regularly.

       II.             Insofar as the claimant complains that the kitchen was untidy on 25/5/18, there was a graduation the night before, which was a very big event, and the chef manager worked until 20.30 hours and decided finish off any other work at a 80.00 hours the next morning. The claimant had declined to work the previous evening.

     III.            There was no report to the employer that Ms BC was suffering from an ear infection or hadn't washed your hair. There was specific evidence that Ms BC had showered on the evening 24/5/18.

    IV.            Statements were provided in typed form for clarity and for the ease of the claimant.

12. The disciplinary procedure was included as part of the Respondent submission. It is submitted that the employer is not required to always follow the strict sequence of counselling, warning, written warning and final written warning if it deems that particular conduct merits a heavier sanction and that is what occurred here. The disciplinary procedure makes clear that there is 2 working days to appeal the sanction and that the person hearing the appeal must have had no previous involvement in the disciplinary decision. It is submitted that the Managing Director was an appropriate person to hear an appeal if the appeal was lodged. The reason Mr BMcG chose that sanction was to take account of the fact that the abuse occurred in front of students and he was fearful that the contract would be lost, which would mean the claimant would lose her job too. Before 2/8/18 the unit manager confirmed that she found the behaviour of the claimant challenging and had tendered her resignation. The start back meeting was proposed in an effort to resolve such issues and with a view to setting out duties of all staff in the new academic year.

13. It was submitted that the claimant resigned because she had received a final written warning in relation to the incident 25/5/18. It was also submitted that fair procedures were applied in that process. It was submitted that the claimant did not appeal the decision as she had a right to do.

14. Insofar as the claimant complains about other matters in the letter of resignation, it was submitted that many of these matters long predate the letter of resignation and did not cause the resignation. It was also submitted that insofar as the claimant was having difficulties outside of the disciplinary process she could invoke the grievance procedure and didn't. It was submitted that the matter she complains of in the letter of resignation are quite normal difficulties that an employee might experience or perceive over the course of a long employment relationship and are not in themselves serious enough to make it reasonable for the claimant to resign, certainly without invoking the grievance procedure. Many of the matters the claimant complains of the letter of resignation were not raised with the employer before the resignation and were not raised in writing or in any formal sense.

15. The employer operates a high level of compliance. The claimant did not return for that academic year. There are various procedures and policies in place that cover matters relevant to what the claimant is complaining about including the employee handbook, health and safety policy and statement, risk assessment document. There is specific reference in the letter to safety shoes.

16. It is not clear at this point whether the claimant got alternative work since resignation on 10/9/18. If the claimant has been on social welfare, it is not clear what category of social welfare the claimant has claimed and in particular whether she has been on illness or disability benefit.

Contained within the Respondent’s submission was a comprehensive Employee Handbook, this appears to be a handbook revised in November 2018. The Complainant resigned from her employment on 21/09/2018, some two months before this handbook was issued.

From the date of completing the investigation into the incident 25^th May 2018 the Complainant was issued copies of statements on 23^rd July, just over eight weeks after the investigation. On reading these statements the Complainant disagreed with some of the content.

In relation to the incident of 25^th May 2018 the Complainant was upset with another employee wearing her hairnet, a hairnet that she purchased herself. Several times during the period from May until her resignation the Complainant has pointed out that employees had to purchase their own PPE. The Complainant has pointed out, in my opinion correctly, that this is a breach of health and safety legislation.

From reading the statements I accept that the use of inappropriate language was used on one or two occasions in relation to one employee wearing the hairnet of another employee.

Had the Respondent complied with legal obligations i.e. supplying PPE to employees, this may never have happened.

In G4S Secure Solutions (Ire) Ltd v Shine (UDD 1744), the Labour Court affirmed the decision of the Adjudication Officer finding that it was not reasonable for the claimant to terminate his own employment. Citing the case in both Beatty v Bayside Supermarkets (UD142/1987) and Allen v Independent Newspapers (Ireland) Ltd [2002] ELR 84 the Court concluded that the failure by the Claimant to utilise the respondent’s internal grievance procedure meant that it could not be said that the Respondent was guilty of conduct such as to entitle the claimant to consider his employment terminated.

In relation to this instant case I have had to think very carefully prior to making a decision.

In relation to the Complainant not appealing the issue of her Final Warning I note from the complaint form; “There was no point in going through that degrading process again when it was unlikely that the Directors decision would have been overturned”

I agree with the Complainant and have decided that the complaint as presented is well founded.

At the hearing it was established that the Complainant is not fit for work. She is suffering from back and ankle problems. I cannot therefore consider a loss of earnings.

I order the Respondent to pay the Complainant the sum of 4 weeks pay that I calculate to be € 859.50. (Based on contract for 2018/2019 Academic Year- €9.55 per hour x 22.5 hours x 4 weeks).

This sum should be paid within 42 days from the date of this decision.

As outlined above.

Constructive Dismissal.