Complainant

Respondent

Parties

Padraig  Cunningham

Pat the Baker Unlimited Company t/a Pat the Baker

Representatives

Conor Quinn

John J. Quinn Solicitors

IBEC

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-00041282-001

27/11/2020

The Complainant commenced employment with the Respondent in June 1996.

His rate of pay was €502 per week gross plus premium and overtime. The Complainant submitted that he earned a gross payment of €658.88 per week.

Following a disciplinary procedure, the Complainant's employment was summarily terminated effective from 17 June 2020.

The Complainant gave evidence that he sought employment from 25 November 2020 to mitigate his loss. He commenced employment on 26 April 2021 with a meat processing company.  His gross wage was €568.75 per week.  He explained this was the flat rate and that he was not paid for any overtime or premium payment.  He works a 3 / 4 shift pattern with the meat processing company. 

The Complainant was suspended on the 28 April 2020 pending an investigation into an allegation of theft of waste products.

The Complainant was not given details of the complaint that instigated the investigation.

The Complainant was not given a copy of the investigation report prior to the disciplinary meeting.

A disciplinary meeting was held on the 22 May 2020.

The Complainant was given CCTV footage, but it was not playable.

The Complainant admitted that he was taking waste products from the Respondent's premises for over 20 years and that “everybody knew he was doing it”. His position was that he was never told to stop doing it. He was not aware of any policy that prevented him from doing it and he believed he had permission to do so.

The Complainant disputed that the investigation was carried out correctly.

He submitted that he made no financial gain from taking the waste product.

He was dismissed on 17 June 2020. He appealed the decision.

The Complainant only received details of the original complaint at the end of June 2020 when he received his full file under a data access request.

The Complainant submitted that there were also numerous breaches of fair procedures in the appeal process. The decision maker set out that he "interviewed all parties afresh". The Complainant was not furnished with statements of who he interviewed and had no opportunity to comment on the evidence prior to a decision being made.

He submitted that he had not received the Waste Control Policy dated 12 January 2020 notwithstanding that he was the person in control of removing waste. The Complainant never received training on this policy.

The Complainant's appeal was not upheld.

The Complainant submitted that an allegation of theft was made to management in January 2020 but there was a delay in advising him of same.  An investigation into the allegation did not commence until late April 2020. He further submitted that statements taken during the investigation confirmed that management were acutely aware for some time that he was removing waste materials. At no stage was it brought to his attention that he did not have authority to do so.

The Complainant submitted that he was upfront in his admission when confronted.  He explained that the Respondent itself confirmed that he had been requested to remove spilt flour in in the past.

He denied that his actions amounted to gross misconduct. The Complainant believed that he was dismissed because he was a "thorn in the Respondent's side". He had previously brought a WRC complaint, a personal injury claim and was an elected member of the Respondents Internal Works committee.

The Respondent's case was that they Complainants employment was terminated on the 17 June 2020 due to reasons of gross misconduct following a full, impartial and fair investigation and disciplinary process.

Oral evidence was presented to me by the General manager, the HR manager and the Managing Director.

The Respondent submitted that from the outset of the process and from the time of the Complainant suspension in April 2020 he was advised of the seriousness of the complaint against him.

It explained that 16 witness statements were collected as part of the investigation process. It's admitted that the Complainant was provided with an opportunity to respond to the witness statements before finding was made.

At all stages the Respondent followed its disciplinary procedure. The Complainant was invited to a disciplinary hearing. The Complainant was accompanied to the meeting by the dispatch supervisor.

A second disciplinary meeting was held in June 2020, the Complainant was provided with a further opportunity to respond to all matters before a decision was made.  The Complainant was advised of the outcome of the disciplinary procedure and that the breach of procedures amounted to gross misconduct. The Complainant's employment with the Respondent was summarily terminated effective from 17 June 2020.

The Complainant was given a right to appeal.  The appeal process commenced on the 22 July 2020. It was chaired by the managing director. As part of the appeals process, the managing director interviewed all parties afresh and conducted a de novo review of the entire matter including review of all issues raised by the Complainant at the appeal meeting.

The appeal decision maker upheld the initial decision terminating the Complainant's contract of employment. This was advised to the Complainant on 14 August 2020.

The Respondents submitted that it adhered to the principles of natural justice and fair procedures throughout the investigation and disciplinary processes.  It argued that the Complainant was notified in writing of the allegations against him. He was afforded a full and fair opportunity to consider and respond to the allegations. He was provided with copies of statements gathered from all parties interviewed, copy of the CCTV footage and two oral hearings. The Complainant was afforded the right of representation at all stages and was given the opportunity of an appeal.

The Respondent submitted that the decision reached was appropriate in the circumstances and noted that the Complainant throughout the process admitted that he did take contaminated waste flour from the premises over an extended period of time. It considered the matter is extremely serious. It explained that any non-compliance with its traceability policy could have potential to place the Respondent at risk of very serious reputational and financial damage.

The General manager gave evidence that while he was reviewing CCTV in relation to a separate issue which did not involve the complainant on 7 April 2020, he viewed the Complainant removing waste flour from the Respondent's premises.  The Complainant was a yard supervisor. He was required to put any waste into specially designated receptacles.  The Complainant had a contract with a third party to dispose of any waste produced on its premises.  This third party was a licensed authorised disposal firm. The Respondent paid for the removal of the waste product.  The Respondent had a policy that all waste had to be put into the receptacle/compactor. This was required to comply with the Respondents Policy on Waste Traceability.

The General Manager explained that the Complainant name checked a lot of people who worked in the organisation over many years (some who are no longer in the organisation any longer) as having given him permission to dispose of the waste he was taking.  However, from the investigation carried out by the General Manager, nobody in the organisation could confirm that the Complainant was given permission to do this.

The General Manager explained that there had been an earlier report in January 2019 that stock was being taken from the Respondents premises. He carried out an enquiry but found no evidence to proceed to an investigation at that time.

Under cross examination the General Manager agreed that there was not a policy that set out that all waste was to go to the compactor. He described that the procedure would have arisen from custom and practice.

The HR Manager gave evidence as to the background of how the Complainant became Yard supervisor in 2017. At that time, the Complainant had brought a WRC claim for payment of wages and as part of the settlement, the Complainant was moved to this role. On commencing this role, the Complainant would have received training from his predecessor in the role. There was no documentary evidence of what training was provided.

The HR Manager disputed that the Complainant did not receive any training on traceability. He described how the Respondent had a zero-tolerance policy on theft.  He explained that the Respondent was required to account for the entire product along the production line. He explained that the Respondent held A+ rating with the Credit Retail Consortium. He described how all employees received traceability training and that records were completed and signed off on. Refresher courses were also run.

The HR Manager was the decision maker for the disciplinary process carried out.  He maintained that he did not hold grudges and was not easily swayed. He gave evidence that he was a professional and would not have used the opportunity before him to settle old scores. He had tried to bring the 2017 settlement agreement to a conclusion, but the Complainant had declined to sign the agreement, so the transfer of the financial settlement never took place.

He admitted that he did not consider alternatives other than dismissal for the outcome as he felt they were not appropriate. The issue before him was theft and it was a very serious issue. He explained that the Disciplinary procedure referred to theft and the culture of the organisation was that theft was not tolerated.

The HR Manager gave evidence that there was a CCTV policy, but he was not able to produce it. He submitted that the Complainant's acceptance that he took the product was the basis for the disciplinary process.

The Managing Director explained that he was the decision maker in the appeal process. The Complainant had admitted that he had taken the waste product and the CCTV footage was not a factor in the appeal process.  The Complainant had confirmed that no current senior manager had given him permission to take the waste flour.  The Complainant had agreed that he had no permission from his line manager to do so.

The Managing Director accepted that he re-interviewed all the witnesses as part of the appeal process but that no minutes of those interviews were provided to the Complainant. He had agreed with the Complainant that if "anything new had come up" he would go back to the Complainant with that information.

As dismissal was not in dispute the burden of proof was on the Respondent to show that the dismissal was not unfair.

Section 6(1) of the Unfair Dismissal Act provides that: -

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act; to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4) of the Act in relevant part provides:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(b) the conduct of the employee,

Section 6(7) of the Act in relevant part provides that: -

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…

The basic facts of this matter are not in dispute.

The employer held an investigation, a disciplinary hearing and an appeal hearing. The decision to dismiss the Appellant was taken following the disciplinary hearing and that decision was upheld on appeal.

The Complainant was dismissed because of gross misconduct. The letter conveying the decision to dismiss to the Complainant advised him that he had been found to be in breach of the Staff Manual policy and procedures of the Respondent at Sections 3.1.3, 3.2.5 and 3.1.12.

The Respondent is a large employer with a management structure. The Complainant was in continuous employment for 24 years with the Respondent.  Several staff identified by the Complainant as having provided permission to take the waste flour were no longer in employment with the Respondent. 

I was furnished with a number of policies including a Waste Control Policy. It was dated 12 January 2020.

The General Manager confirmed that there was a previous concern regarding taking waste flour in 2019.  In January 2020 the Complainant’s line manager had suspicions that the Complainant taking waste flour.  In April 2020 the General Manager viewed CCTV for a separate purpose that showed the Complainant removing waste flour from the premises. 

The statements taken from the Complainant's co-workers all to some extent indicated that there was knowledge within the Respondent’s Operation that the Complainant was taking waste flour and had been doing so for some time. How this did not come to light in 2019 was not explained. 

The statements indicated that the Complainant was not liked within the operation. 

Several statements referred to advising the Complainant not to take waste product from the Respondent's premises. There was no written record of this.  The Complainant disputed that he was given any such instruction.

In this case, I have not been provided with a CCTV or privacy policy.  It is commonly accepted that if an employer reserves the right to use CCTV for disciplinary matters, an employee should be advised of this in advance. 

The Court of Appeal recently gave its decision in Doolin -v- The Data Protection Commissioner [2022] IECA 117.  Delivering the judgement, Noonan J. said: "Central to the analysis, as the Directive and the 1988 Act make clear, is the concept of notification of the purpose to the data subject… “

The viewing by the General Manager of the Complainant on CCTV started the investigation process which resulted in his dismissal. 

I find it unacceptable that following the introduction of a Waste Control Policy 2020 there was no record of the provision of this policy to the Complainant, who as yard manager had responsibility for the disposal of waste products.  There was no record of any training provided on this policy either. 

I also have an issue with the HR manager who was the decision maker stating that the Respondent had a zero-tolerance policy on theft.  This would indicate an element of pre-judgement in the case.  No alternatives to dismissal were considered and as a number of the Complainant’s co-workers had given statements that the Complainant had been taking waste flour for some time, no consideration of his explanation in its historical context was considered. 

While the Managing Directors role was in relation to an appeal following the decision to dismiss, I find that the practice of re-interviewing witnesses without any notes being taken / supplied to the Complainant to be an unfair practice and beyond the role of appeal decision maker. 

Having considered the entire process carried out, I find that the procedures did not comply with the general principle of natural justice and fair procedures as set out in S.I. No. 146 of 2000 of the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures).

Also taking into account the length of service held by the Complainant and that his taking of the waste flour was well known within the organisation and his immediate admission and explanation as to why he did so, I don’t find that the Respondent’s dismissal finding lay within a range of responses which a reasonable employer might make. 

In assessing loss, I have assessed the Complainants loss from when he commenced seeking work in November 2020 to when he found work in April 2021.  I have calculated this at 21 weeks. While the Complainant contributed somewhat to his dismissal, I find that the Respondents breach of fair procedures over shadowed same and I have not taken his contribution into account in my calculations.  I make no assessment of loss into the future.

I find this complaint well founded.  I award the Complainant €13,400.00 gross.

No CCTV policy.  Breach of Fair Procedures.