Complainant

Respondent

Anonymised Parties

A Chef

A Hotel

Representatives

Aoife McDonnell TO ISSUE BY EMAIL TO: cases@ibec.ie

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-00046890-001

29/10/2021

The Complainant was employed as a Chef de Partie with the Respondent from 2013 until his dismissal on the 21st October 2021.  The Complainant contended that he was unfairly dismissed and so he submitted a case against his former employer under Section 8 of the Unfair Dismissals Act 1977.  The Respondent contended that the Complainant was dismissed from his employment for gross misconduct following a thorough process undertaken by the Respondent which ensured maximum fairness and transparency and was conducted in accordance with fair procedures and natural justice. 

Preliminary Issue:

At commencement of the hearing the Respondent requested that this matter be held in private.  The Respondent submitted that the incident which gave rise to this dismissal was of such seriousness within the industry that it would have a significant negative impact on their business.  The Respondent stated that the business was just starting to pick up again following Covid 19 restrictions and that if the information relating to the case was in the public domain it could set back progress.  The respondent also stated that in circumstances where the Respondent had not contributed in any way to the situation which gave rise to the dismissal, they were requesting that the matter be held in private.

The Case

The Respondent submitted that the Complainant was appointed to the role of Chef de Partie with the Respondent in 2013 and was provided with a contract of employment on the 8th July 2013.  The Respondent submitted that the following sequence of events took place. 

·        On the 1st October 2021 a colleague of the Complainant reported an incident to the supervisor.  Employee X had witnessed the Complainant urinating into a drain in the dairy fridge room of the hotel.

·        Later that day, the Human Resources Manager called Employee X to discuss the incident he had witnessed.  Employee X explained the incident and confirmed that he had witnessed the Complainant urinating in the dairy fridge room.

·        Employee X explained that he had questioned the Complainant when he realised what was happening and that in response the Complainant proceeded to inform him that he was not to tell anyone about what he saw and if he did not, he would give him money.

·        Employee X informed the HR Manager that he thought this was not the first time the Complainant had urinated in the dairy fridge room as he had smelled urine there in the past.

·        Later, on the 1st October, an emergency meeting was called with the Complainant, the HR Manager and the Assistant Operations Manager.  The Complainant was asked at the beginning of the meeting if he would like to be accompanied by a colleague of his choice but he refused. 

·        The HR Manager and the Assistant Operations Manager began to discuss the incident with the Complainant.  At this point he denied urinating in the dairy fridge room.  He was also asked why he was in the dairy fridge room in the first place and he responded that he was getting cheese which he needed to cook an Irish stew.

·        When the Respondent questioned this, the Complainant then said that he wanted to eat the cheese, however there was none in the fridge.  When the Respondent asked one final time about what had occurred in the dairy fridge room, the Complainant stated that he was diabetic and could not make the toilet in time and so had urinated in the dairy fridge room. 

·        The Complainant was also informed at this meeting that he was to be suspended with pay pending full investigation.

·        After the meeting on the 1st October, the Complainant called his supervisor to inform him that he had been suspended and wanted the staff food to be taken out of the blast chiller for food preparation.

·        When the supervisor questioned why he had been suspended, the Complainant vaguely said that he thought his colleague had informed HR that the Complainant did something.  When the supervisor questioned if he had done something wrong, the Complainant denied any involvement.

·        On the 4th October 2021 the Complainant was issued with a Terms of Reference document by the Respondent to inform him of the investigation process and the principles covering the process.

·        Again, on the 4th October 2021 the Complainant was invited to attend an investigation meeting.  This was scheduled for 4pm on the 5th October 2021. 

·        On the 5th October 2021 the investigation occurred with the HR Manager, the Operations Manager and the Complainant in attendance.  The HR Manager questioned why the complained proceeded to deny the allegations to the supervisor after the emergency meeting on the 1st October.  The Complainant confirmed he did not want to share the details with the supervisor.  The investigation proceeded to explain that the Complainants’ behaviour was regarded as gross misconduct and a health and safety risk.

·        During this meeting the Complainant stated that Employee X had demanded money from him in exchange for his silence on the matter.

·        On the 5th October the Respondent examined the video footage in relation to the incident of the 1st October as a result of the comment made that Employee X had demanded that he give him €900. 

·        The video footage showed the Complainant following Employee X up and down the corridor in the Respondents’ premises, for somewhere between seven and eight minutes.  On the video footage at 10:48am the Complainant was seen with his wallet and bank card in his hand and is seen showing it to employee X. 

·        At 10:50 on the video footage the complaint entered the kitchen.  At 11:56 the Complainant was seen in contact with Employee X again.  The Complainant followed Employee X around the loading bay.  At 11:57 the Complainant re-entered the building unaccompanied by Employee X. 

·        On the 6th October 2021 the Complainant was invited to a disciplinary meeting which was due to take place on the 8th October 2021. 

·        On the 7th October 2021 the Respondent met with Employee X to discuss the complaint.  The HR Manager informed Employee X that the Complainant claimed that after the incident Employee X asked the Complainant for €900 to stay quiet about the incident. 

·        Employee X was shocked to hear this and said he had not, at any point, asked the Complainant for money.

·        Employee X said he told the Complainant to go to HR or his manager and to tell them what had occurred.  Employee X added that after he had witnessed the incident he spoke to another member of staff in confidence before informing the supervisor of what he had witnessed. 

·        On the 8th October the Respondent conducted a disciplinary meeting with the Complainant.  In attendance on behalf of the Respondent were two other managers who had not previously been involved in the investigation process.  In opening the meeting, the Complainant was asked if he wished to be accompanied by a colleague of his choice and he chose not to do so. 

·        At the meeting the Complainant again reaffirmed that he had urinated in the dairy fridge room.  The Respondent informed the Complainant that Employee X had denied asking the Complainant for €900 to stay quiet about the incident.

·        The Complainant reaffirmed that Employee X had asked him for money.

·        The Respondent informed the Complainant that Employee X had stated that he had asked the Complainant to tell Human Resources or the supervisor what had occurred.  The Complainant denied this. 

·        The Complainant was asked why video footage showed him following Employee X and showing him his bank card.  The Complainant stated that Employee X took him to his office to transfer money online.  The Complainant then apologised and the disciplinary meeting concluded.

·        On the 12th October 2021 the Respondent sent the Complainant a letter of dismissal.  Additionally, the Respondent sent the Complainant a copy of the disciplinary report. 

·        On the 18th October the Respondent received an appeal to the dismissal from the Complainant.

·        On the 21st October the Respondent issued a letter to the Complainant rejecting his appeal.

·        On the 29th October the Respondent received the Complainants’ complaint form from the Workplace Relations Commission.

The Respondent outlined that in accordance with the Unfair Dismissals Act 1977 – 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee.  The Respondent submitted that having considered all the facts, the responses and explanations of the Complainant, they were not considered reasonable nor sufficient such as to mitigate the extreme seriousness and far- reaching implications of his actions.  The Respondent submitted that the Complainants’ actions amounted to gross misconduct and that when considering what sanction to apply, the company had regard to the seriousness of the allegations and also the representations made by the Complainant within the process itself.  The Respondent also submitted that in relation to the sanction imposed, the principles to be applied in a case of gross misconduct, had clearly been established over time and the test as set out in Looney & Co Ltd versus Looney, UD843/1984, is as follows:

“It is not for the tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as his did or decided as he did, as to what would substitute our mind and decision for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employers’ actions and decisions be judged”. 

The Respondent submitted that it was their position that a reasonable employer in the same position and circumstances would have reached the same determination in the circumstances of the within case and as such the company’s decision to dismiss was reasonable and fair in the circumstances and no unfair dismissal took place.  The Respondent further submitted that the actions of the Complainant destroyed the company’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal.  This position they stated was upheld by the employment tribunals on a number of occasions including in Knox Hotel and Resort Ltd, UD27/2004, where the tribunal stated that: “(The claimants’ actions) destroyed the Respondents’ trust and confidence in the claimant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal”. 

The Respondent submitted that in relation to the procedures implemented relating to this dismissal, the Complainant was afforded all benefits of fair procedure, in line with the company’s policy, the WRC Code of Practice on grievance and disciplinary procedures, (SI 146/2000) and the universal principles of natural justice.  The Respondent pointed out that the Complainant was informed in advance as to the nature of the allegation against him, he was afforded the right to representation and he was provided with a number of fair and impartial hearings at which he was given every opportunity to respond to the allegations against him. 

The Respondent further submitted that all the evidence in it’s entirety was considered, including the Complainants’ representations, before any decision was made or action taken; and that in light of all of the above the Respondent believed that the dismissal of the Complainant was procedurally fair in all respects. 

The Respondent submitted that the actions of the Complainant contributed wholly to his dismissal, and in that context the Complainant is not entitled to seek any redress under the Unfair Dismissals Act 1977 – 2015.  The Respondent submitted that this is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray versus Meath County Council, UD43/1978, where the tribunal saw it appropriate not to award any redress to the Complainant in light of his inappropriate actions.  The Respondent also drew attention to Boyle versus An Post (2015) IEHC 589, where the Honourable Judge stated: “Fairness is ever required, perfection is unattainable”. 

The Respondent submitted copies of all relevant correspondence with the Complainant and minutes of all meetings held with the Complainant by way of supporting documentation. 

Preliminary Issue:

The Complainant confirmed that he had no objection to the matter being held in private.

The Case

The Complainant did not contest the facts of the dismissal or the circumstances that gave rise to the dismissal.  The Complainant submitted that the Respondent had not addressed any matters with him in the progressive stages of the Disciplinary Procedure but rather had gone straight to a summary dismissal. 

Preliminary Issue:

This matter did not need to be addressed on the day of the hearing as there were no members of the public in attendance on the day of the hearing.

I considered carefully the question of this matter being held in private as it related to the potential anonymisation of this decision.  I took into account the position of the Respondent that they had not caused the circumstances in any way and that public confidence might well be undermined by a reporting of the events described that gave rise to the dismissal with the potential for a significant negative impact on their business.  I also took into account the position of the Complainant who confirmed his agreement to the matter being held in private. 

In all of the circumstance of the case I considered it appropriate that this matter be held as a private hearing.

The Unfair Dismissal Case

I considered carefully the content of the submission and supporting documentation provided by the Respondent and I considered the oral evidence given by both parties at the hearing.  At the hearing I also sought clarity in relation to a number of procedural matters arising from the documentation provided by the Respondent and I noted the following:

·        That the report of the investigation conducted by the Respondent on the 5th October was not completed nor provided to the Complainant in advance of the disciplinary meeting which took place on the 8th October

·        That the report of that investigation was issued to the Complainant after his dismissal on the 12th October and that report accompanied his letter of dismissal

·        That the appeal submitted by the Complainant on the 18th October was considered by the Respondent and that the outcome of that appeal was communicated in writing on the 21st October without ever meeting the Complainant and hearing in person his position in relation to his appeal

There was some degree of ambiguity in relation to who had made the decision to dismiss the Complainant.  The Manager who conducted the disciplinary hearing, confirmed at hearing, that he had made the decision to dismiss following the disciplinary meeting of the 8th October.  However, the dismissal letter which issued recorded that decision as being the decision of the HR Manager who conducted the investigation process. 

I also considered the Complainants’ position that the Respondent had not addressed matters with him under the progressive stages of the disciplinary procedure.  It is clear that in instances of serious or gross misconduct an employer is not required to address matters within the progressive stages of the disciplinary procedure, however, they must be able to demonstrate that there were substantial grounds for the dismissal and that they followed fair procedure.

In considering whether or not the dismissal in this instance was an unfair dismissal, I considered the Respondents’ position that perfection was not required, rather that a fair procedure be applied.  In this instance, I believe that the procedure was not fair to the Complainant in the context that he was not aware of the outcome of the disciplinary investigation in advance of attending the disciplinary hearing, and he was not afforded a full appeal hearing to outline his case before a final decision was made to terminate his employment.  At a minimum I am left with a question as to who actually made the decision to dismiss and whether, in fact, the HR Manager who conducted the investigation, had direct input into that decision.

However, I also considered the seriousness of the Complainants’ actions as being relevant to this matter.  The Complainant was employed as a chef in a hotel and by his own acknowledgement, had full HACCP training and certification and was responsible for preparation and management of food in accordance with the highest health and safety and HACCP standards.  His actions on the day in urinating in a food storage area could have had dire consequences for guests of the hotel and, indeed, for the long-term reputation of the hotel.  In these circumstances it is easy to understand why the Respondent treated this matter as serious misconduct and in my view the Respondent has clearly demonstrated that there were substantial grounds for addressing this matter as serious misconduct.

Taking all of the above into account, it is my finding that this dismissal was unfair from a procedural perspective, however, in considering the matter, I have taken into account the Complainants’ significant contribution to this dismissal.

I have found that this dismissal was an unfair dismissal but that the Complainant thourgh his own behaviour significantly contributed to his own dismissal.  In those circumstances, it is my decision that this complaint is well founded but that the Complainant should not receive any award for his dismissal in light of his significant contribution to his own dismissal.

Serious misconduct, unfair dismissal