Anonymised parties

Complainant

Respondent

Parties

A chef

A catering provider

Representatives

Self-represented

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-00039149-001

10/08/2020

The complainant worked for the respondent as a chef between 2018 and 2020. He was paid €540 per week and assigned to a client site. The complainant was dismissed on the 22nd June 2020 on grounds of gross misconduct. The complainant outlines that this was an unfair dismissal, which the respondent disputes.

The complainant outlined that this complaint related to his unfair dismissal as well as bullying and discriminatory treatment. This arose from the treatment he received at the hands of a named manager, an employee of the respondent who managed the client site.

In respect of the Terms of Employment (Information) complaint, the complainant said that the advertisement for his role stated that the role was for 39.5 hours per week. He had been promised a pay increase after a few weeks, but the contract said that it was a 10-hour contract over 7 days. The complainant said that he worked Monday to Friday from 7am to 3pm. This changed as he was also rostered to work weekends. This was just added to the roster without a change to the statement of terms. He should have been paid overtime for all hours over 10 hours.

The complainant outlined that he was employed as a chef de partie by the respondent and based at the client site. He worked there for a little over two years and things were good. He had been out a couple of times with injuries.

The complainant said that things worsened when the named manager took over as general manager. He raised safety issues for example not being able to wear safety glasses. He was then working at the fryers and not wearing safety glasses. The manager arranged that a letter of concern be issued against him as he was not wearing safety glasses. The complainant said that he could not wear safety glasses as he needed prescription glasses. He could not wear the safety glasses as they could not fit over his own glasses. He was told that he had to get a letter from an optician to say that he had bad eyesight and could not place safety glasses over his own glasses. The respondent refused to supply him with safety glasses that would fit so he was taken off the fryers. The complainant then had to ask a colleague to do the frying. This happened in January 2019. It might have cost €200 or €300 for prescription safety glasses. The complainant said that other chefs who wore glasses did not have to wear safety glasses, but he had been required to.

The complainant said that the glasses issue led to tension in the kitchen as he could not carry out his full duties. He, for example, was taken off fish on Friday because of the chips. The complainant had an accident on the Mongolian grill. He had no formal training on the device and there were issues as it was very hot, some 400 degrees. He had to use small paddles to toss veg and meat, but it was so hot that it burnt his groin area. His doctor recommended apron and gloves. He raised these issues with the respondent and was told that he was not allowed work on the grill. Others did the work, and the same issue arose with them.

The complainant said that every time he raised an issue, he was taken off it. At the start of 2019, he was asked to join a safety team and while some issues were dealt with, the bigger issues were not. The manager would say that any issue was to do with the complainant, for example his glasses or work shoes. In respect of the work shoes, the complainant said that he had requested safety shoes. Staff had been given a type of runner but without a steel toe. The shoes had a soft toe through which a knife could go through. He raised this concern and the manager replied ‘don’t let a knife fall’ and ‘you’re not working in a warehouse’. The complainant then asked to bring in his own shoes, but this was refused as the client had not approved them.

The complainant said that he raised issues regarding his mental health with the respondent. He raised issues of bullying which were not looked into. He described what came after from the respondent as being ‘tenfold’, i.e. when he raised bullying, ten things were thrown at him. He outlined that he moved kitchens but did not get pay rises and was left short.

The complainant said that the first bullying incident was on the 4th September 2018 where he was belittled on the shoe / fryers issue. The manager also insisted that he wear his chef uniform during a time he was working from the office while recovering from a finger injury.

The complainant said that the first bulling hearing took place in July 2019 and had been initially scheduled for June 2019. He was not happy as the note taker was a friend of the manager’s. The Operations Manager had conducted the hearing and issued the decision in January 2020, which he had not appealed.

On the 30th December 2019, the complainant was told that he could not go back to work as the client had revoked his access. This arose because of criminal charges laid against him.

The complainant said that he was returning to work In November after a period of work-related stress. He had emailed on the 6th November to say that he would return to work on the 13th November. There were no records or complaints about his behaviour, but the manager emailed to say that he would not be going back. The manager was aware that he was taking a bullying complaint against her as the manager referred to this in the email. The complainant said that his bullying complaint had ‘leaked’. This email of the 7th November 2019 also refers to the newspaper story.

The complainant said that he was told to go to the company doctor and a meeting was scheduled regarding his return to work between him and a named supervisor. They met in a named kitchen, and he was told that he would be helped. The complainant asked for time off to attend a weekly counselling session and they agreed a staggered return to work. After the meeting, the complainant was going to the car park and met a supervisor, who informed him that he would be returning the following day. He saw the manager who walked, following him. The manager walked to his car, and he took a photograph of her to show that he was not even at work and the manager was following him. The complainant raised this with the head chef the following day and the manager later emailed to say that she had followed him to ensure that the complainant had left the site. The complainant said that this was part of the manager’s belittling of him, and he referred to the photographs showing that he had been followed.

The complainant said that when he brought a colleague to meetings, the colleague was not allowed to take notes. He outlined that he notified the respondent of a criminal conviction in June 2018 and was allowed to go back to work. He had been convicted in court and spent 8 or 9 days in prison. This arose from 2016 and the respondent was aware of this.

In respect of the more recent incident, the complainant said that he had pleaded not guilty, and the matter was later struck out. He said that the person who supplied the newspaper article was the person who he had a bullying complaint against. The complainant was suspended with pay from January to June 2020. He had not worked since because of the pandemic as there was no work for chefs. He had enquired into some places. He asked to work at a hospital but there were only bits and pieces. He sought a role with other contractors of the same client but could not avail of this as the client had taken him off site.

The complainant said that if he had not raised the bullying issue and the health and safety issue, he would still be working there. He had stood up for his rights. The manager had raised the complainant’s friendship with a colleague who was an old friend. It was the manager’s complaints which led to the disciplinary process

In cross-examination, the complainant confirmed he had received the employee handbook at the start of his employment. He accepted that the respondent was aware of his conviction in 2018. He had met with HR as this was an unexplained absence. He was aware of the requirement to bring this to the attention of the respondent and had said that he did not want to make a mountain out of a molehill. The complainant said that he was aware that he had to tell the respondent of a conviction but not of any charges. He said that he had informed the head chef and the supervisor of the arrest in October 2018.

The complainant said that he had not raised the Mongolian grill issue as this was subject to a separate personal injury case. He accepted that the issue of wages being short was resolved in the early part of his employment. This arose as the start time in one kitchen was 6am and not 7am, leading to his wages being short. He said that the manager had refused to pay the overtime starting at 6am so he refused to start at 6am. This was resolved a week later. It had taken two weeks to get the wages issue resolved and this led him to paying too much tax.

The complainant accepted that he had not appealed the outcome of his July grievance and said that he had raised all the issues. He said that the respondent had cleared the manager. The outcome was sent to him on Christmas Eve, and he had to appeal via the UK.

The complainant did not accept that the glasses and shoe issues were resolved, and he had been taken off fryers. He was told that he could not take notes as having two note takers could cause confusion. He had attended with the head chef. He disputed some bits of the minutes, but they were not big issues. He said that the manager was allowed to have an external note taker, but he was not allowed the same.

It was put to the complainant that there were three procedures applicable in this situation: grievance, disciplinary and client removal. He replied that there was a conflict of interest due to a personal relationship of the senior manager who dismissed him.

The complainant was asked whether he had applied for other jobs after his dismissal or whether he had supporting documentation for such applications; he replied ‘no’. It was put to the complainant that there were 10 to 15 advertised roles as of the day of the hearing and that places had reopened even during the lockdowns. The complainant replied that this was his first job in industrial catering, and he was not inclined to go back. He hoped to start work in a few weeks.

In further evidence, the complainant outlined that he did not receive the July 2018 letter from the HR Business Partner. The Strategy Director had said that he would look up the complainant’s personnel file. The complainant said that he had not raised his conversation with the line manager about the charges as part of this process.

The complainant said that he sent the email of the 21st August 2018 to the line manager. He had had the initial meeting and was told that there would be an investigation. He then met the manager in the client site who said that she needed proof that he was in prison, which he provided. He met with the HR Business Partner who said in a follow-up that there would be no disciplinary action.

The complainant outlined that it was the manager who decided that he should be taken off the site and she gave the client the newspaper cutting. He commented that he had never had any issue with any of the managers in attendance at the hearing and the manager he did have an issue with was not in attendance. He said that this manager was made aware of his grievance against her, leading her to take him off site. He learnt this in the data access request.

The complainant said that he had been shocked that the only chef work the respondent offered was in the UK and they only had industrial cleaning roles in Ireland. He acknowledged that while the respondent was a big company, kitchens had closed because of the pandemic.

The complainant said that he lost access to the client site over Christmas and did not have the opportunity to clear out his locker. There were possessions left in the locker and they were not of any great importance.

Commenting on the handbook, the complainant said that it refers to notification of being charged and also if you are found guilty. They are in different sections of the booklet and the first part requires conviction, but he was not found guilty. He was unfairly dismissed on the basis of an unfair article, and he was not found guilty. He said that the respondent should have waited for the criminal process to finish, and instead, the respondent had found him guilty.

The complainant said that the issues under the Safety, Health and Welfare at Work Act were the glasses and boots. The matter arising from the grill was resolved between the parties.

The complainant said that he found employment in June 2021 until October 2021 on a TV set and would be returning to the role in March 2022. He earned €500 per week in the role.

In submissions, the respondent denies the complaints. It submitted that there were duplicate claims in respect of the Safety, Health and Welfare at Work Act and the Unfair Dismissals Act, as well as the Industrial Relations Act and the Unfair Dismissals Act. It rejected that there was any penalisation for raising health and safety issues, for example the disciplinary and client removal processes. It did not accept that there was a contravention of the Terms of Employment (Information) Act and the complainant had also not incurred any loss. It submitted that it had complied with its bullying and harassment procedures and investigated all matters. The complainant had not exhausted internal procedures. It submitted that the complainant’s actions in not reporting the fact of facing criminal charges was gross misconduct. This requirement was set out in the company handbook, as had been shown to him in 2018. It submitted that dismissal was within the band of reasonable responses of an employer.

Evidence of the HR Business Partner

The HR Business Partner outlined that the complainant had explained that the first criminal law issues arose in 2016 and he had not informed the respondent as nothing became of them. The HR Business Partner went through the employee handbook with the complainant, in particular pages 25 and 26. This set out the expectations of what the employee would have to do, including the issue of gross misconduct. It did not move to disciplinary as it did not impact on his work as a chef. The outcome was that it was clear that he must inform his employer and they went through the gross misconduct part of the document.

Evidence of the Operations Manager

The Operations Manager outlined that he thoroughly investigated the grievances and did not uphold them. In respect of the safety glasses, he found that this had been a normal conversation with the Manager, who had sought an alternative. He was aware that two alternatives were offered. He did not recall if the issue of the fryers had been dealt with at this time. In cross-examination, the Operations Manager said that the standard issue glasses were offered to the complainant and refused as they did not fit.

Evidence of the Disciplinary investigator

The Disciplinary investigator outlined that he has worked in hospitality for 25 years. He investigated the three issues, and his outcome was to proceed with the first allegation and park the other two issues. The complainant had failed to inform the respondent of the charges he was facing. There was the issue of whether the complainant had received the handbook. This arose as the client had raised the story in the newspaper. The disciplinary investigator recommended that this issue proceed as the complainant had the handbook. The complainant had not mentioned the conversation with the line manager of the 10th October 2018.

Evidence of the Strategy Director

The Strategy Director outlined that there were two disciplinary meetings, and a named colleague attended the first one.The first disciplinary meeting was adjourned and delayed because of the grievance process. The complainant said that he was not aware that he had to report charges taken against him. The Strategy Director found that the complainant had received the employee handbook and had the previous meeting with the HR Business Partner. The Strategy Director considered the alternatives to dismissal. He took into account the HR Business Partner’s letter regarding the obligation to inform the company of any proceedings. He had the disciplinary invitation letter of the 27th June 2018 which refers to ‘further to being informed by your relative that you have been charged with an offence and sentenced to 6-8 weeks in prison’. This showed that the complainant was aware of the obligation. It was only at the adjudication that the complainant had raised his conversation with the line manager about the charges. The complainant was saying that he did not have to inform the company of a charge.

In cross-examination, it was put to the Strategy Director that the employee handbook was confusing in that it referred to having to inform the respondent of convictions and elsewhere charges; he replied that the complainant would have known of the obligation from the handbook and the letters sent in 2018.

The Strategy Director raised the July 2018 letter from the HR Business Partner at the first meeting in January 2018. The letter was sent to the complainant after the meeting, and they discussed it again in June.

Evidence of the Business Director, disciplinary appeal

The appeal manager outlined that she heard the appeal. The complainant challenged the sanction of dismissal and the wording of the outcome letter. The complainant had not informed the respondent of the criminal proceedings, and this was the second time that this had happened. She could not recall whether the line manager’s name was mentioned. The dismissal letter had mentioned the 2018 interaction with the HR Business Partner, and this was not raised by the complainant as an appeal point.

Evidence of the Operations Manager, grievance

The witness outlined that she dealt with the grievance of the 22nd January and that she was independent in deciding the grievance. She did not uphold the grievance regarding access and the badge. The respondent could not require that CCTV be supplied by the client.

Evidence of the Operations Manager, grievance appeal

The witness outlined that he dealt with the grievance appeal and mainly the conflict of interest issues. He was aware of the Manager’s emails regarding the complainant coming back and they were not relevant to the appeal. He heard the grievance appeal dealt with by the previous witness and responded back to the points the complainant had raised. The disciplinary process and the removal process were suspended pending the grievance. The complainant had only presented hearsay and was not able to validate the initial grievance..

The complainant had attended the meeting alone and was able to bring someone and was happy to proceed. It was done remotely because of Covid. He checked whether there was a conflict of interest between the two managers and found that there was no conflict or other procedural issue. The respondent had followed its own procedures, which required that a separate manager be involved.

The complainant did not provide evidence relevant to the grievance. The complainant had referred to a conversation between two managers, which one manager had no recollection of. He found that it did not happen. The complainant did not present corroborating evidence and he had delayed making his finding to allow the complainant to bring evidence or other witnesses. The disciplinary process was suspended pending this grievance investigation, as there were relevant points to be decided by the grievance.

Evidence of the Regional Operations Manager

The regional operations manager outlined that he met the complainant in May 2020 to discuss the client removal request. He explained that the client had made the request and this meeting was to find an alternative role for the complainant. He said that employment opportunities were then sparse and there were few opportunities because of the pandemic. The complainant wanted to stay in Ireland and not move to the UK. The opportunities then available in Ireland were cleaning roles. He outlined to the complainant that there was a six-week window to find alternative employment, otherwise he would be dismissed. The complainant did not apply for any roles in the six weeks. He outlined that it was their duty to find another role for an employee who a client had asked to be removed, but the timing here was poor. The respondent would have lobbied for the complainant to be retained but the client was very clear and there was no negotiation. The six-week period was the respondent policy. The complainant had been dismissed via the disciplinary process so there was no need to complete the client removal process.

Evidence of the Head of People

The Head of People said that she had lobbied the client on several occasions following their removal request. The client informed her that they were revoking the complainant’s access, which they did.

Closing

In closing, the respondent submitted that the manager against whom the complaint was made was informed of the complaint, in line with the procedure. This had been addressed in the appeal. The respondent submitted that the question regarding the bullying complaint was whether the respondent had followed its procedures and it had. It submitted that many of its employees were on lay-off because of the pandemic.

In respect of the Safety, Health and Welfare at Work issue, the respondent raised the preliminary issue of the resolved personal injury action. It was submitted that the disciplinary process was not penalisation for the personal injury proceedings. Many catering or cleaning staff have PI claims, and they are not penalised. In respect of the Terms of Employment claim, it was submitted that the complainant had received his contract and there were no changes. He also incurred no loss. The complainant’s bullying and harassment complaints were addressed according to the procedure as was the appeal.

In respect of the dismissal, the respondent submitted that this was fair. The complainant had been allowed representation and he knew what was at stake. He was informed of the possibility of an appeal. The process was in line with the Code of Practice in SI 146/2000 and the decision to dismiss was within the band of reasonable responses. The complainant had been sent the letter to say that he had to inform the respondent of any criminal proceedings and not just any further convictions. The complainant had three further charges pressed against him in 2018 and he had more than a year to disclose this to the respondent and he deliberately chose not to do this. The complainant had signed for the handbook and should have known about the policy. While the complainant does not believe in the policy as he thinks that he is innocent until found guilty, he was obliged to disclose that he was facing charges. He said that he did not agree with the policy and changed his stance in his interactions with the respondent. While the complainant has said he told a peer, this does not satisfy the threshold of telling a line manager.

This is a complaint of unfair dismissal. The complainant was dismissed on the 22nd June 2020 following a disciplinary investigation and process. The complainant appealed the decision to dismiss, and that appeal was not successful. The dismissal was grounded on gross misconduct in circumstances where the complainant faced criminal charges in 2018 and this was initially dealt with by the District Court in 2019. The complainant was not later convicted.

The respondent and the client read about the charges in a local newspaper report. The complainant outlined that it was the manager with whom he had difficulties with (and not in attendance at the hearing) who forwarded the newspaper article to the client. Even if this was the case, the question remains whether the respondent can dislodge the presumption in section 6 of the Unfair Dismissals Act that the dismissal was unfair.

The respondent relied on the contents of the employee handbook. In the section addressed ‘A perfect start’, the text titled ‘criminal offences’ requires the employee to notify the respondent if they are convicted of a criminal offence. The section ‘Working practices & expectations’ defines gross misconduct to include ‘failure to inform the company that you have been charged in relation to criminal proceedings.’

Important in the analysis of this case is the interaction between the complainant and the HR Business Partner in June 2018. The complainant was absent from work, having been incarcerated for several days arising from a conviction for a 2016 offence. The context, therefore, of the meeting of the 28th June 2018 was that the criminal process had finished, i.e. the laying of charges and the subsequent conviction. The meeting minutes and the invitation letter do not explicitly distinguish between the laying of charges and conviction.

The relevant part of the minutes of the 28th June 2018 (the disciplinary investigation meeting) state: Complainant ‘found guilty of trespassing. No CCTV available. HR Manager ‘did not tell [line manager] Complainant ‘thought there would be no charge. Judge made decision. HR Manager ‘was it 8th June’ Complainant ‘No went 6th June waited all day’ HR Manager ‘we need to understand the reason we need to inform your manager’ Complainant ‘no further charges gave me two months but likely six weeks in prison and out after 2 weeks 6 days’

I can certainly see how discussing criminal charges in one section and criminal convictions in another could lead an employee to interpret the document in the way most favourable to them. This would ordinarily be sufficient to be a source of confusion, were it not for the direct evidence of the HR Business Partner at the adjudication. Had it not been for this direct evidence, I would have found that the differences in approach in pages 27 and 45 of the document meant that an employee could say that it was unclear whether they had to inform the employer of being charged as opposed to being convicted. The HR Business Partner’s evidence was that she and the complainant went through both sections of the handbook and the need to tell the employer. By the time of this meeting in June 2018, of course, the convictions had been handed down, so it was not just about an employee facing charges.

I, therefore, find that the need to inform the respondent of criminal charges was explained to the complainant. The above process occurred in June 2018 and the new criminal charges were laid in late 2019. It is striking that the complainant did not tell the HR Business Partner, in particular as the June 2018 process did not result in any disciplinary action. I accept that the complainant told a named colleague, but, in particular in the light of his recent contact with the HR Business Partner, telling this colleague did not equate to telling the employer.

Every citizen is entitled to the presumption of innocence when accused of a crime, so the complainant had that presumption in late 2019, as he did on the date of dismissal. He was later not convicted of the charge. I can see how a client-oriented business such as the respondent’s might require employees to disclose charges and not just convictions; after all, the client in this case took decisive action to exclude the complainant on learning of the charges. The obligation to disclose is included in the employee handbook and this obligation was explained to the complainant in June 2018. The respondent is, therefore, able to rely on the employee handbook as a basis of disciplinary action.

The respondent engaged a thorough disciplinary process, including an appeal. The question is whether the decision to dismiss was proportionate. The relevant part of the notice of dismissal states ‘The nature of these allegations is of a very serious concern to the business especially so, as they related to the alleged assault with a knife. Your work involves you working with knives so it’s reasonable for these allegations to be of considerable concern to us. You clearly deliberately and purposely decided not to share them with us. It was not a momentary lapse in judgement or a mistake, but rather a measured and considered decision to withhold the information. Your conviction is not necessary for you to be in breach of the handbook guidelines nor to question your suitability of your working environment (which clearly will have the use of knives). It is this action that has both destroyed the basis of trust and confidence and brought into question your suitability within our working environment (working with knives).’

It is clear that the decision to dismiss was based on the non-disclosure and the fact and nature of the charges laid against the complainant.

The appeal concluded that the letter of dismissal had mis-characterised the criminal charges faced by the complainant and accepted that the assaults did not involve the use of a knife. It was clarified that they related to assault and producing a knife and the complainant was clear that he was not guilty. The appeal held that the mis-characterisation did not undermine the validity of the decision to dismiss. The appeal held that the complainant had failed to inform the respondent of the charges and that the reference in the newspaper article to his producing a knife were sufficient not to overturn the finding of dismissal, given the working environment.

The question is whether the decision to dismiss was within the band of reasonable responses for an employer so that it can dislodge the presumption that the dismissal was unfair. It is true, in this case, that the charges were serious and too serious for the jurisdiction of the District Court. It is true that the complainant should have informed the employer that he was facing the charges and not doing so amounted to a disciplinary breach. I find that on its own the issue of non-disclosure did not warrant the disciplinary sanction of dismissal. It warranted some lesser sanction but not dismissal. I note that neither the notice of dismissal nor the appeal outcome considered lesser sanctions; dismissal was the only option on the table.

I recognise that the charges were serious, and this played a significant role in the decision to dismiss, albeit a lesser role in the appeal outcome. The well-established case law on an employer’s band of reasonable responses arise in circumstances where it is the employer who is investigating and determining whether the employee committed wrongdoing. The test of whether the employer acted reasonably relates to the investigation and determination of wrongdoing that occurred in a work-related context.

Cases such as Bank of Ireland v Reilly 2015 IEHC 241, Looney & Co. Ltd v Looney UD 843/1984 and Georgopoulus v. Beaumont Hospital [1998] 3 I.R. 132 all involved investigations by the employer of alleged wrongdoing by the employee in a work-related context. Of course, an employee’s wrongdoing could also amount to criminal behaviour (see Mooney v An Post 1994 ELR 103) where the employer was entitled to rely on the band of reasonable responses, notwithstanding the parallel criminal proceedings. Here, the alleged wrongdoing was outside of work.

I note that the respondent submissions (correctly) only applied the band of reasonable responses to the disclosure issue and not to the nature of the charges. I have found that non-disclosure, of itself, did not warrant dismissal, but a lesser sanction. As set out above, the dismissal was not only based on non-disclosure but also on the nature and gravity of the allegations, even though they remained allegations at that point. It did not (and could not) determine whether the allegations were true, and the dismissal was based on the allegations having been made, including their nature and gravity.

In conclusion, I find that the respondent has not dislodged the presumption that the dismissal was unfair. This is because the failure to disclose did not, of itself, warrant dismissal. Furthermore, and in these circumstances, the respondent placed too much weight on the nature of the criminal charges faced by the complainant in grounding the dismissal when they remained allegations. The dismissal was, therefore, unfair.

In respect of redress, I note that the complainant participated in the client removal process and did not accept any of the cleaning roles available. He made some effort to find alternative employment, but I recognise that this was during the pandemic. He can also be said to have contributed to his dismissal. In the circumstances, I award redress of €4,500.

CA-00039149-001

I decide that the respondent unfairly dismissed the complainant, and that the respondent shall pay to the complainant redress of €4,500.

Unfair Dismissals Act / criminal charges / disclosure / band of reasonable responses