EMPLOYMENT APPEALS TRIBUNAL
Natures Best Limited T/A Natures Best
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr P. Pierce
Mr C. Ryan
heard this claim at Dublin on 6th April 2016 and 1st June 2016
Claimant: Mr Andrew Whelan BL instructed by Monahan Solicitors, 10 Dyer Street, Drogheda, Co Louth
Respondent: Purdy Fitzgerald Solicitors, Block 1, G.F.S.C, Moneenageisha Road, Galway
The determination of the Tribunal was as follows:-
The respondent is a producer of chilled convenience foods. It produces a range of salads and other products for major retailers nationwide with over 200 products on a daily basis.
KK, Technical Manager and a senior member of the quality team gave evidence on behalf of the respondent who has a workforce of 250 staff. The business is audited on a regular basis to ensure compliance with health and safety standards. She noted that approximately half its produce is supplied to one particular retailer. A metal detection procedure (Critical Control Procedure) is carried out by line leaders to eliminate or minimise the risk of metal objects in finished products. The metal detector must be checked at the beginning of production and every thirty minutes as prompted by a blue lamp and at the end of the production line. In turn a CCP metal detection record is completed by line leaders stating that they carried out the various tests at specific times. By way of random selection three packets are taken off the line for testing after they have passed through the metal detector. All of the production lines are monitored by CCTV footage. It was KK’s evidence that all staff including line leads are regularly trained and monitored. She emphasised the need for high health and safety standards due to potential risks of foreign objects in packaging which could result in damage to customers.
IS, a production manager gave evidence. His role entails ensuring orders are produced safely for customers. He stated that food safety is a priority and part of his role is to monitor the checks done by line leaders. He has access to the CCTV and he regularly reviews footage. In 2014 he carried out an audit in early September and one on 22 October 2014. Following IS’s return from holidays in October 2014 he reviewed CCTV footage and it came to his attention that the metal detection procedure had not been carried out on the claimant’s line in accordance with the CCP metal detection record she submitted. Effectively it appeared that while she completed the relevant documentation, no corresponding checks were carried out on at least four occasions. He reported this matter to HR.
GT is HR Manager. He indicated that the claimant was a line leader for nine staff. On 29th September 2014 the claimant together with fellow colleagues attended a meeting with GT wherein he stated the claimant acted as spokesperson. There was an issue about work hours and the claimant suggested splitting shifts in order that the hours would be more spread out over a week. GT did not think it would be feasible but allowed the claimant an opportunity to try a split shift structure. It was his evidence that the claimant was the only person who took up this new regime and it only lasted three weeks. Arising out of this it is alleged by him that he met with the claimant again on 13 October 2014. While he does not recall the exact date he confirmed that he did meet with her to ascertain whether or not she was happy at work. He had formed a view that she was not happy at work and she indicated that she was, in general, tired and no longer wanted to work. He floated the idea of redundancy but she refused at which stage he stated that she should take time to think about it. He confirmed that he did not recall whether the claimant asked why her hours were reduced or whether or not she mentioned asking for a certificate for social welfare as a result of reduced hours. It is the claimant’s argument that GT reduced her hours as a result of the meeting on 29 September 2014 which he denies.
On 22 October 2014 IS informed him that, having reviewed the CCTV footage it appeared certain CCP checks had not been carried out by the claimant on 13th October 2014. During his evidence GT consistently and persistently repeated the need for safety standards to be complied with given the nature of the product produced. Any breach of the CCP checks is a serious incident and can result in dismissal for an employee therefore by letter dated 24 October 2014 he wrote to the claimant (who was on annual leave) inviting her to a disciplinary hearing on 3 November 2014 to discuss the said breaches.
During the course of this meeting the claimant accepted that she had breached the CCP metal detection procedure on four occasions and had falsified the metal detector record. GT stated that she accepted that she had been fully trained in the procedure and knew she had breached the procedure. In her defence the claimant stated that she had been stressed because of a staff meeting she had attended recently. The claimant said that she was not the only staff member who had breached the procedure. At the meeting the claimant submitted a medical certificate which indicated that she was unfit for work from that day until 10th November 2014 due to acute stress reaction/hypertension. The claimant also produced a typed report in support of her claim that the mistakes she had made on 13th October 2014 were due to stress. The claimant was accompanied by a translator but chose not to bring any other party to the hearing. In the course of the hearing the claimant also stated that this was not the first time that she had breached the procedure as she is usually very busy and cannot stop the line every 30 minutes. When queried on this GT did not agree that there was a problem with compliance within the organisation and that it was not common that certain tests were not performed. GT made the decision to terminate the claimant’s employment with immediate effect and by letter dated 5 November 2014 confirmed this to her in writing. No alternative sanction was considered because he did not think there was a suitable alternative sanction for such a serious breach of procedure. The Tribunal was referred to an Employee Handbook which set out possible infractions which could result in dismissal including falsifying records and certain breaches of health and safety procedure. The document was in English and the claimant is not fluent. It was further put to GT that the claimant does not recall reading or seeing this document and if she did, it would have been in 2004 when she first took up employment with the respondent. She subsequently left and was re-employed but no further documentation akin to an employee handbook was furnished to her. The document produced by the respondent to say she received the handbook was dated 2004. The claimant’s evidence was inconsistent however in relation to whether or not she saw the procedure booklet in common areas within the organisation. The claimant was offered a right to appeal the decision within five working days.
By letter dated 8th November 2014 the claimant appealed her dismissal. The appeal was upheld.
From the outset the claimant accepted that she breached the CCP and falsified CCP metal detection records for 13 October 2014. She claims the dismissal is unfair as it is a disproportionate sanction and states that her dismissal in part results from her speaking out at a staff meeting in September 2014. She confirmed that she commenced employment as a General Operative in 2004. After a year and half she left the company but returned again at the end of January 2007. Two years later she was promoted to Line Leader.
The claimant attended a meeting with GT on 29th September 2014 with a number of other employees. She stated that she was the main speaker as she had the best English. The staff wanted better working conditions and an increase in pay. She believed that she had been working excessive hours wherein some weeks she was working 50/56 hours and working Saturdays 10.30 to 4.00 pm. After the meeting she stated that she felt the consequences of ‘speaking out’ and she felt that the company no longer wanted her to work there. The following week she stated that her hours were reduced. She recalled working twenty four hours one week and twenty six another week. She then asked the respondent for a letter for social welfare to balance the lost hours but no such letter was furnished to the claimant.
On 13th October 2014 she spoke to GT. He enquired if she wanted to be made redundant but she refused as she did not want to lose her job. The claimant did not want to lose her job and be made redundant. Following this meeting she commenced her shift but felt unwell and did not carry out the CCP albeit she completed the related forms. On 20th October she went on holidays until 3 November 2014. During her holidays she received a letter on either 25 or 26 October 2014 from the respondent requesting her to attend a disciplinary meeting on 3 November 2014.
During that meeting the claimant accepted that she breached the CCP Metal Detection procedure on 4 occasions on 13 October 2014 and falsified the metal detection record sheet. She knew that was serious issue. In her defence she explained that sometimes there is not enough time to complete the procedure and that she was not the only person to break the procedure, this was done by other employees also. She claims that there is not always enough time to stop the line and complete the relevant checks and furthermore, stopping the line is not encouraged by management. She refused to name other employees and stated that GT or IS could view the CCTV footage as they had done with her. She also stated that she had been suffering from stress following the meeting on 13 October 2014 with GT and felt she was being singled out. She submitted a note to the hearing in support of her claim that the mistake she had made on 13th October 2014 was due to stress. By letter dated 5th November 2014 she was dismissed from her employment. She appealed that decision. The company upheld the decision to dismiss her. Since the termination of her employment the claimant has been unwell and unable to seek alternative employment.
On cross examination she did not accept that she had been regularly trained, she felt she had only one real training session. She did accept however that she knew and understood the CCP metal detector policy. When queried whether she ever told management that there was a culture of ‘box ticking’ in relation to the CCP checks she stated that she did however management dispute this.
The Tribunal carefully considered the evidence adduced during the course of this two day hearing.
The respondent produces a range of food for major retailers and in this regard operates a rigorous metal detection procedure to minimise the risk that there may be foreign objects in the finished products. The procedure is carried out at the beginning of production, every thirty minutes as prompted and at the end of production. The respondent takes this procedure very seriously as was repeated over and over again. The claimant accepted that she had breached these procedures on four occasions on 13th October 2014 and falsified the metal detection records. This is not in dispute and was not in dispute at the disciplinary hearing in November 2014. In her defence she stated that she had been stressed and there was a practice of ‘loose’ adherence to the safety procedures. This is vehemently denied by the respondent. It is the claimant’s case that dismissal as a sanction was disproportionate thereby rendering her dismissal in itself unfair.
The Tribunal accepts that in this industry food safety is paramount and the admitted breaches by the claimant are serious. In particular the falsifying of the CCP metal detection records are difficult to displace particularly when it is accepted by the claimant that she was fully aware of and understood the CCP procedure. It also appears from the evidence that this was not the first time the claimant did this, but rather the first time she was caught. In that regard it is hard to imagine an employer in this industry being comfortable with an employee who knowingly breaches food safety checks. On the other hand that procedures employed by GT in dismissing the claimant were at best perfunctory. She was called to a disciplinary hearing while on holidays and dismissed by letter two days after the meeting. An employee handbook was produced at the hearing of this matter, which the respondent relies upon, but there is no evidence short of a document signed in 2004 that the claimant read or understood this document. However, while there is an obligation on the employer to engage in fair procedures those procedures do not have to be perfect. This has to be balanced against the serious infractions committed by the claimant which she knew and accepts were unacceptable. The failure to carry out the CCP checks could have resulted in serious consequences to a consumer which the respondent would have been liable for. Accordingly, the Tribunal finds that the claimant was not unfairly dismissed and the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal