Complainant

Respondent

Anonymised Parties

General Operative

Meat Processing Plant

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-00011746-001

05/06/2017

The claimant was employed as a Dispatch Officer  with the respondent from the 4^th.March 2008 to the 24^th.Jan. 2017 when it was contended he was fairly dismissed.It was submitted that the claimant was dismissed for gross misconduct following breaches of the company health , safety and hygiene rules.It was submitted  that the claimant was guilty of previous breaches of hygiene rules  and that all of his rights were observed in effecting his dismissal.

IBEC set out the background to the  company and highlighted the importance of compliance  with hygiene requirements and HACCP as a beef processing plant.It was submitted that the wearing of appropriate PPE (Personal Protective Equipment)  was an integral element of the company’s food safety controls – with food safety training for all staff and signage throughout the plant with reminders about PPE.

It was submitted that the claimant received  a first written warning on the 15^th.Sept . 2016  for refusing to follow direction from his supervisor on 3 occasions  and for breaching the hygiene rules by refusing to remove eye piercing.It was asserted that the claimant did not appeal this sanction.It was submitted that an investigation was carried out into a second breach  of hygiene rules in December 2016 ; the matter progressed to a disciplinary hearing  with respect to the claimant’s alleged wilful and deliberate breach of hygiene rules ; refusal  to carry out reasonable instructions from his supervisor  and the making of “untrue allegations in bad faith” against a co-worker.It was submitted that on the basis of the claimant’s response to the above issues , the company took the view that they had no option but to dismiss the claimant.The claimant exercsed his right of appeal but the appeal was not upheld.

It was submitted that the claimant was an experienced employee , acutely aware of the necessity of PPE  and given  the initial sanction , it was reasonable for the company to expect that the claimant would lead by example and observe compliance with hygiene rules.It was submitted that the claimant was afforded all of his rights throughout the process and given a fair and impartial hearing.It was submitted that the company acted in a just and reasonable way and that the managers acted in a reasonable and rational manner in reaching its decision.

Post hearing the respondent submitted detail s of the hygiene notices placed throughout the premises in both English and Polish..

The respondent was adamant that the first time the claimant raised the issues  about health & safety complaints was at the WRC and asserted that these matters were not raised during the disciplinary process and could not now be deemed admissible.

The respondent asserted that  the company did in fact respond to the claimant’s appeal of the first written warning  dated the 20.09.2106 in a letter to the claimant dated the 30^th.Sept. 2016 from MrPD.

The respondent took issue with the claimant presenting a legal submission at the final hearing in circumstances where he chose not to bring representation to the other 2 hearings.It was asserted that the claimant was introducing issues that were never raised during the course of the disciplinary process.The claimant had been afforded his rights under the disciplinary procedure to be represented .It was submitted that notwithstanding the claimant’s assertions to the contrary all parties were furnished with the respondent’s submissions at the first hearing.

The company submitted that the informal disciplinary procedure was not utilised as the claimant had already been spoken to on 3 previous occasions  about the eyebrow and 2 occasions about the snood.It was submitted that the claimant had confirmed at the disciplinary meeting of the 16.01.2017 that he had been given a snood by Mr.Q.It was submitted that hygiene notices were displayed throughout the site in both Polish and English.It was submitted that throughout the investigation/ disciplinary process the claimant never said that he was not wearing the piercing from the 24^th.May 2016 onwards.

It was contended that the hygiene rules were on display throughout the despatch area.It was submitted that the claimant never refuted or disputed that he had taken out the eyebrow piercing in the course of the investigation/dismissal procedures.     It was submitted that the claimant was asked on 3 occasions to remove it – as recorded in the record of the meeting of 14.09.2016 – and that at that meeting the claimant made no reference to denying wearing the piercing on the 24.05.2016.

It was submitted on behalf of the claimant  that the claimant’s job involved dealing with packaged products loaded onto pallets and that his task was to load them onto trucks.The claimant and his colleague Mr.H  had a location separate to other employees for changing their clothes  and as a dispatch worker , the claimant was not allowed into the production area.The claimant also wore a different uniform.

It was submitted that in Nov. 2015 , the claimant got a piercing over his eye and that he wore a plaster over it when at work.It was submitted that the claimant was not approached to remove it and that he saw his supervisors on a daily basis.It was submitted that neither the piercing nor the plaster were an issue  during the period Nov. 2015 – May 2016. The claimant was suddenly approached to remove it by his Supervisor in May 2016 ; the claimant was surprised “ after several months of visibly wearing it over his eye on a daily basis with  plaster over it”.It was submitted that the claimant “ reacted with some sort of anger and while removing it “ he asked for an instruction in writing  on or around the 23^rd. May 2016.It was submitted that the claimant still had the plaster on the same place over his eye but was not wearing the piercing on or after the 24^th.May 2016.It was contended that on the 24^th.May , 2016 , the claimant was again approached by Mr.N , who raised his voice and pushed the claimant  - it was asserted that Mr.N did not verify if the piercing was removed or not  but assumed it was not as he noticed plaster over the eye.It was submitted that the alleged aggression by Mr.N  was the subject of a written complaint lodged by the claimant.A meeting took place with the factory manager Mr.D  on the same date (24th.May 2016)and it was submitted that the claimant was reassured  and he confirmed to Mr.D  he would not be wearing the piercing over his eye anymore , that it had been removed but he would keep the plaster to avoid infection.

It was submitted that “ Bizarrely , the investigation into complainant’s grievance  resulted in a finding being totally outside of the purpose of the investigation : that the complainant CONTINUALLY REFUSED  to follow direction from Supervisor”.It was submitted that the claimant was issued with a first written warning on the 15^th.Sept, 2016 by Mr.D who was a witness in the investigation into the claimant’s grievance.It was contended that the  claimant appealed the sanction but got no response.

It was submitted that the claimant had made several complaints to the respondent regarding safety in the workplace and faulty equipment.A copy of an email dated the 13^th.Sept. 2016 was submitted into evidence.It was asserted that the claimant had endeavoured to raise these issues during his grievance and disciplinary hearing  but they were ignored as being outside of the scope of the investigation.

It was submitted the  claimant felt he was the targeted by management when approached by Mr.Q on the 16^th.Dec. 2016 – this belief was based on the claimant’s experience with the piercing – which had not been an issue for several months; the claimant’s experience of the grievance complaint against Mr.N; the ensuing warning and no appeal  and following complaints he had made   about health & safety in the workplace.The issue related to the wearing of a beard snood – the claimant complied with the request even though others were not required to wear one and it was alleged that it had not been the practise for years for those not having a beard.It was submitted that the claimant had no access to a beard snood the following days and could not wear one.It was advanced that where  the claimant’s changing rooms are located  – as a dispatch worker- , there is no dispenser with beard snoods and had never been one.The claimant was dismissed on the 24.Jan. 2017 for “ wilful and deliberate breach of hygiene rules, refusal to carry out reasonable instructions and making untrue allegations in bad faith against technical manager”.

It was submitted that under the Act , the onus was on the employer to justify the dismissal on substantial grounds and to follow reasonable and fair procedures.

With respect to the warning issued in September , it was contended that there was no information presented about how the respondent ensured that  employees such as the claimant, with limited English understood and followed hygiene regulation and rigorous training.

It was submitted that the documentation submitted by the respondent with respect to hygiene rules referred to production areas and not to dispatch – where the claimant was employed.

It was submitted that the personal hygiene rules which formed the back drop to the warning only referred to production and locker area and is dated the 12.04.16 – a month before it was used to discipline the claimant and it was advanced that there was no evidence presented to demonstrate that the rules applied to the claimant and that he was made aware of them.It was submitted that the rules were only forwarded to Mr.N on the 23^rd.May 2016 .It was submitted that the respondent’s own emails indicate that Mr.N was not aware of the rules as of the 23^rd.May 2016.It was contended that extracts from a larger document  were exchanged on the 6^th.July 2016 …” but it is alleged that complainant refused to follow procedures around 23^rd./24t.May 2016 and around those dates completely different documents were provided to Mr.N whose instructions were allegedly not followed by the complainant”.

It was submitted  that there was no explanation for the respondent’s failure to utilise the informal procedure set out in the company’s procedures and that if it had been utilised it could have established that the claimant had removed his piercing and was wearing a plaster to avoid infection.

It was submitted that the claimant was  first notified of any potential issue in Sept. 2016 some 3.5 months after the alleged failure to follow instructions.

It was submitted that the claimant was at a loss to understand how the facts were gathered during the alleged investigation step of the disciplinary procedure  as no  relevant documents were furnished to him.It was advanced that the claimant was not advised of the possibility of the risk of dismissal in the invitation to the disciplinary hearing on the 6^th.Sept. 2016

It was submitted that Mr.D – who had issued the first written warning – was not impartial as he was a material witness in the grievance raised by the claimant and was accordingly an inappropriate person to conduct the disciplinary process.

It was contended that no issue was raised about the claimant’s  piercing  from Nov. 2015 to the 2rd.May 2016 and the Hygiene Rules were not issued until the 12.04.16. – the rules did not refer to the dispatch area  and as the product was already packed when it arrives to dispatch , there was no risk of contamination.

It was contended that on the basis of the foregoing arguments , the claimant should not have been sanctioned on the 16.09.2106. It was submitted that the respondent’s procedures provide “protective clothing shall be available “ and “ is provided in sufficient numbers for each employee” and “ includes snoods for beards where required to prevent product”.

It was submitted that there was no need to prevent/protect product in dispatch area; the claimant had never previously been asked to wear a snood – it was not a rule to wear same in the area where he worked ;the claimant did not have a beard  and the changing area for the claimant had no access to a dispenser with snoods.It as argued that it was unreasonable to expect the claimant to ask the technical manager for a snood on each occasion.If the policy on snoods had changed , the respondent failed to provide evidence of same and the respondent had failed to train and inform the claimant about adherence.It was submitted that the claimant wore a snood when it was made available to him and that consequently there was no refusal to obey an instruction. It was submitted that the claimant did not make any allegations against the technical manager .The claimant’s feelings of being targeted were expressed in “ picking on you” and must be considered in the context of the claimant’s  limited English and the backdrop of an appeal being ignored , being ignored after raising health & safety issues  and suddenly being approached about a beard snood when it was never  in common use in dispatch.

An email from the claimant to Mr.D dated the 13.09.2016 regarding the claimant’s health & safety concerns was submitted into evidence.

In his direct evidence the claimant asserted that at all times throughout his employment tried to do his best.He He asserted that managers were trying to get rid of him for his last 2 years in employment  and that the 2 written warnings he received led to his dismissal.He stated that he disagreed with the company submissions and he was  challenged by Mr.N 2 times and not 3 times as submitted by the company .He was challenged once by Mr.F.The claimant was adamant that he took off his eyebrow earing on the 24.05.2016 and he wore a plastar over the piercing.His manager was roaring and pushing  him on the following day claiming he had an earring in his eyebrow when he had already removed it.He said he was advised that the plasters could not be detected by the metal detector.The claimant submitted that in any event he was working in the loading area and there were no metal detectors in the area where he was working.He asserted that the managers supported each other and wanted to punish him.The claimant said his beard was never long enough to require a beard snood and it only became an issue in his last few weeks of work .The claimant asserted that the employer was looking for a reason to dismiss him and that the close circuit TV would support his contention that he had no beard at all on the 2^nd.12. 2016.The claimant said he never needed beard protection and was never advised where to find them.He stated that beard protection was never used in the area in which he worked.There was a hairnet dispenser there but no dispenser for beard snoods.

The claimant asserted that he told the company on several occasions about broken equipment and sent emails and letters about fixing broken things with no results.He stated that they had to work with broken equipment that could result in death.He asserted that the cold room didn’t work, that shelves could not be removed and could fall on something – he asserted that he complained about these issues in June & Sept. 2016.The claimant asserted that the respondent had other options to dismissal but did not use them.

Under cross examination it was put to the claimant that he never asserted that he was not wearing the earring at the disciplinary meeting  to which the claimant responded “ Yes I told the lady that I didn’t wear it”.It was submitted  by the respondent that it was  only after the fact that the claimant raised this.The claimant said that nobody wanted to look at my eyebrow.The importance of  the plastar was highlighted by the respondent – it has metal in it so if it is lost it can be detected. The claimant was asked why he believed it was up to the employer to request him to take off the plaster and the claimant responded that the employer did not have to ask him as he did not have an earring on at that stage.He was asked if he accepted that piercings were not acceptable at work and he replied “I accept fully …..as soon as I found out I took it out”.He was asked if he should have made clear to the employer that he removed the plaster and replied that he tried but was attacked and pushed.The claimant accepted that Mr.Quinn approached him informally about the snood.The claimant stated that he worked for the company for  9 years and never had a beard.It was put to the claimant that he had previously said the beard was not long enough – he replied that he did not recall saying this.The claimant said he wore the snood 2/3 times after he was approached by Mr.Q .On other occasions he did not wear the snood . He confirmed his colleague wore a snood but did not know where he got them.The claimant said that workers should be informed of the location of the snoods and where they could be found .The claimant was asked if he was saying he was dismissed for not wearing a bread snood for a beard he did not have  and why he did not raise this at any of the meeting s, the claimant replied that the respondent should specify what meeting was being referred to .The respondent referred to the respondent’s record of the meeting of the 13^th.Dec. 2016 .

It was submitted that the respondent should have utilised the informal disciplinary procedure as provided for in the company’s procedure.The company were asked how they expected the claimant to wear a beard snood when they were not provided .It was submitted that it was evident from the company’s record of the meeting of the 2^nd.Dec. 2016 that the claimant did wear a snood when he was provided with one.The meeting record also recorded that other workers  were not wearing the snood either.

The claimant insisted that he never got a chance to tell his manager that he had removed the piercing at the meeting on the 25^th.May 2016.It was submitted that the supervisor did not seek to verify that the piercing had been removed  and he assumed it was not.

It was submitted that the claimant’s manager , according to their own records , was only advised of the personal hygiene rules and  the location of their display on the 23^rd.May 2016

It was submitted that it was clear from the investigation report of the 27^th.June 2016 that the claimant was never asked about the piercing , that he was never asked to describe what happened and that none of the witnesses were asked whether or on the claimant had the piercing in or not.It was submitted that it was inappropriate for Mr.D to decide upon the first warning  sanction   against the claimant  in light of his involvement as a witness in the complaint ‘s complaint against Mr.N.

It was contended that no evidence was presented of how the hygiene rules were communicated to the claimant.

I have reviewed the evidence presented at the hearing and noted the respective positions of the parties.At the heart of this dispute is the conflict between the claimant and his manager/ employer  – with the claimant believing he was unfairly treated and picked upon  with respect to hygiene requirements in the company  while the respondent asserts that the dismissal was justified on the basis of the claimant’s  deliberate breach of hygiene rules, refusal to carry out reasonable instructions  and making untrue allegations “in bad faith” against a technical manager.

While I note that the decisions makers in the disciplinary process presented to give evidence at the first hearing , no direct evidence was presented by the various managers at the subsequent hearings.I have considered the respondent’s documented accounts of the various meetings , the submissions of the company representatives as well as the direct evidence of the claimant and the submissions of his representative at the final hearing.

I do not accept that the claimant’s assertions  that  his assignment to the despatch area imposed a lesser burden on him with respect to hygiene rules,  have  merit – it is a matter for the respondent to decide what hygiene requirements have to be met in all areas of the plant. Furthermore I do not accept the claimant’s contention that he had no opportunity to explain that he had removed the piercing from his eyebrow – nothwithstanding the conflict with his manager he was afforded an opportunity to present any such evidence at the meeting of the 14^th.Sept. 2016 where at the end of the meeting he was asked if he had anything else to say and he replied “No”. Additionally ,I find the claimant’s excuses for not wearing the beard snood to be inconsistent and unconvincing.I also note that notwithstanding the submissions of the claimant , the respondent did in fact reply in detail  and comprehensively  to his appeal of the 26^th.September , on the 30^th.Sept. 2016. I  find  that the claimant responded belligerently to the investigation meetings on the 14^th.Dec. 2016 and the 21^st.Dec. 2016 where his response to allegations that were put to him were “Prove it”.

On the basis of the evidence presented I am not satisfied that the company complied in full with the escalating disciplinary procedure submitted into evidence.No compelling reason was advanced to justify escalating the piercing issue beyond the informal process – while I acknowledge the respondent’s representative’s  submission that the claimant had refused on a number of occasions to follow the direction of Mr.N and Mr.F , the  informal procedure does provide for  addressing “shortcomings in the performance , conduct, or attitude of an employee”.A meeting did take place with Mr.D about the piercing issue and the matter appeared to have been resolved .I also find that no compelling explanation has been advanced  for processing the issue as a formal disciplinary matter some 3.5 months post the incident.

While I note the company’s denial of the claimant’s allegation that he was being picked upon because of concerns he raised about health and safety issues  , it is clear from the respondent’s own records that the claimant raised “other issues” at the investigation into the claimant’s grievance on the 22^nd.June 2016  , health and safety issues  at meetings with Mr.K on the 14^th.& 19^th.July 2016  as well as  by way of email on the 13^th.Sept. 2016 .The company has asserted that these matters were not raised until the dispute got as far as the WRC.While it would not be possible to draw any definitive conclusion from this chronology of events , it was not unreasonable for the claimant to hold the view that he was being picked upon for having raised these matters.

While I acknowledge the finding by the respondent of the claimant being guilty of breach of hygiene rules and refusing to carry out reasonable instructions, I am not satisfied that the respondent has presented compelling evidence of the claimant making untrue allegations “in bad faith”.

As previously alluded to the respondent’s formal  procedures provide for an escalating procedure …a recorded verbal warning , a first written warning , a final written warning  and dismissal at stage 4.Having considered the evidence, I am not satisfied that compelling evidence has been presented to justify  the digression from this procedure in the context of the second batch of offences presented to the claimant in December 2016.No reasoning has  been advanced to justify digressing from a final written warning which would have been the next sanction according to the company’s own procedures.

Additionally the procedures provide for “ alternatives to dismissal”.I find no evidence was advanced to demonstrate that alternatives to dismissal were considered  either at the dismissal or the final appeal stage.For all of the foregoing reasons , I have concluded that the claimant’s dismissal was procedurally unfair.

However, I am obliged also to consider the conduct of the claimant and have taken account of  his  actions in failing  to observe hygiene rules and reasonable instructions from his managers . I have also taken into consideration  his approach at the disciplinary meetings of demanding proof from the respondent.I have concluded that the claimant contributed significantly to his own dismissal and this is reflected in the quantum of the award of €10,000 compensation .