ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013377
Parties:
| Complainant | Respondent |
Anonymised Parties | A Shift Manager | A Pizza Company |
Complaints:
Act | Complaints Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00017589-001 | 22/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00017589-002 | 22/02/2018 |
Date of Adjudication Hearing: 27/08/2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 7 of the Terms of Employment( Information) Act, 1994, and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
This case involves a Polish national who worked full time with the Respondent Pizza company over the course of almost 7 years. The Complainant has claimed unfair dismissal and a contravention of Section 5 of the Terms of Employment(Information) Act, 1994. The Complainant was represented by the Independent Workers Union (IWU) and the Respondent by Peninsula Business Services. Both parties helpfully submitted written submissions. I made a request at the end of the hearing for a Table of Loss from the complainant and I have not received this at time of this report. |
Summary of Respondent’s Case:
The Respondent is a Franchisee of a Pizza Company. The Complainant was employed as an “instore general operative” from 4 February 2011. He was subsequently promoted to the position of shift runner around 23 June 2014. He was dismissed following a finding of misconduct in circumstances where he already had a final written warning on his file. CA -00017589-001 Unfair Dismissal The Respondent denied that the complainant was unfairly dismissed. The Respondent submitted extensive documentation on the company policies and procedures. The Complainant received a written warning in January 2017. The Respondent discovered that there were live issues with the complainant’s performance during September 2017. These were listed as: 1 That the complainant allegedly edited the clock in records and allegedly failed to adhere to the roster as set out. 2 Alleged failure to ensure maximising profits by controlling labour Two Investigation meetings followed on 19 September and 10 October and on the 16 October 2017, the complainant was invited to attend a disciplinary hearing on Friday 20 October to address the following: 1 Alleged falsification of time records on 29 August, 7 September, and 18 September 2017 2 Alleged theft of food taken in excess of allowance on 7 ,8 and 18 September 3 Alleged breach of food safety rules in making a pizza in the cold room on 9 named dates. The Complainant was given Investigation minutes, payroll records and notified that CC TV footage would be made available at the hearing. The Meeting was rescheduled to November 3 to facilitate the complainant in securing advice. The Complainant attended the Disciplinary hearing and subsequently received a final written warning on November 7 to be of 12 months duration. The Respondent placed the complainant on notice that any further acts of misconduct would be met by disciplinary action and potential dismissal. This was not appealed. The same issues arose again, and the respondent convened another investigation meeting on Dec 2. The issues were tabled as: 1. Clocking in prior to roster time on 16 and 27 November 2. Breach of Food Safety Rules by making a pizza in the cold room 3. Preparation of Chicken meal in the cold-room. 4. Alleged failure to perform the basic role to the standard required. The Respondent was unhappy with the complainant’s responses to the allegations as he minimised their effect and attributed his food preparation for family reasons not involving customers. The Respondent did receive a grievance statement from the complainant on 18 December, but the company saw this as a frivolous act. The Respondent made the decision to terminate the complainant’s employment by means of a letter dated 3 January 2018. This decision was appealed. In response to the complainant’s submissions on making pizzas in the cold room being a universal practice validated by the store managers, the company Director engaged in an extensive cc tv trawl in addition to checking with the store managers only to find these claims to be groundless. Evidence of Area Manager, Mr A. Mr A had been involved in several investigations involving the complainant. He recalled an incident involving an oven in 2016 which had resulted in the application of a disciplinary sanction of written warning. In September 2017, the Store Manager raise issues on an over run in her labour budget and highlighted that the complainant was clocking in early and late post conclusion of his approved shift. Mr A submitted that the complainant was instructed not to make pizzas post store closure. Mr A had a limited recall of the complainant raised issue on the disobedient employee outside having concerns regarding the complainant, taking Human resource advice and meeting with the complainant and the store manager over a cup of coffee informally in a local hotel. He had no recollection of a grievance emerging at that time. Mr A confirmed that he had completed two investigation meetings where “Dirty Trays” were not mentioned. He had gone on to commission another investigation in December 2017 and all minutes were shared with the complainant. During cross examination, Mr A didn’t accept that the oven malfunction was outside the complainant’s scope. The Complainant did not repay the overpayment following his admission of excessive clocking in times Evidence of Mr B, Financial Accountant Mr B recalled that he was not involved in the case prior to the November Disciplinary. He was struck by the overlap in the events which led to the Final Written Warning and those before him at the subsequent disciplinary meeting. He found a “flagrance in food standards “where the complainant was employed as a shift runner to be unacceptable to the company. The Complainant was offered representation at the first Disciplinary hearing, but he did not avail of the offer. He was subsequently represented on 14 December. During cross examination, Mr B rejected the suggestion that the “oven “incident of 2016 had coloured his views of the complainant in the November Final written warning. Mr B reaffirmed that he was motivated by Food Safety and found that the complainant presented as an unacceptable risk for the company. Evidence of Mr C, Franchisee Owner. Mr C confirmed that he had heard the appeal of both the written warning governing the oven incident and the Dismissal from 2018. He owned the business. Mr C recalled that he had not varied the disciplinary outcome in the “oven issue” as the Company do not close stores and this store had been closed for a 3-hour duration. He observed that Mr A had worked for the company for 14 years. He operated “by the book “with integrity. He understood that Mr A had considered the 18 December grievance as being without foundation. In referring to the Food Safety element, he detailed his business as being an International brand with universally applied procedures. He hosted the appeal of the dismissal over a 30-40-minute period. He confirmed that the complainant admitted to the allegations and had not raised the topic of the unresolved grievance at the Appeal. In cross examination, he confirmed that the extensive training given to the complainant on food safety was aimed at adhering to the food regulations and he was troubled by the clear non adherence without justification .When the complainant suggested that other staff were also deviating , Mr C looked back over the hard drive over a 2 week period of CC tv footage and did not establish that universal deviation . Evidence of Ms D, Store Manager Ms D confirmed that shortly after the complainant was dismissed, he presented for his final wages only to confirm that was already working. He was wearing a heavy pants and heavy boots. Ms D denied seeing the complainant make a pizza outside the main shop preparation area. She confirmed that 7 years ago, she had made a pizza on a special table but not in a cold room setting. In closing, the Respondent representative submitted that the complainant had been managed in a fair and independent procedural framework. He was advised of the allegations, afforded representation an advised of the consequences for the behaviours experienced by the company. The Complainant was party to several independent investigations and covered by a CC TV Policy. The Complainant had presented as very challenging employee with repeated misconduct, where the company established substantial grounds to justify his dismissal in accordance with Section 6(4) of the Act. There were no special circumstances to depart from a decision to dismiss which was upheld on appeal. The Complainant was paid in lieu of notice and found work within this period thus negating any argument on loss. The Complainant was given every opportunity to change but neglected to do so. CA -00017589-002 Terms of Employment The Respondent accepted that the Complainants job title and rate of pay changed in 2014 and an omission in relation to issuing a revised statement of main terms of employment occurred . However, the Respondent submitted that the complainant had not suffered a detriment as a result as apart from his job title and rate of pay , there were no other changes . His revised duties were subsequently reflected in the complainants training records . |
Summary of Complainant ’s Case:
The Complainant commenced work at the Respondent Pizza Company on 4 February 2011. He was promoted to” Shift Runner” in or around 23 June ,2014. His employment was terminated on 3 January 2018. He worked a 39-hour week in return for €9.80 per week. CA -00017589-001 Unfair Dismissal The Complainants representative confirmed that he had commenced new work some three weeks post his Dismissal and undertook to submit a table of loss post hearing. The Complainant submitted that he lodged a grievance in February 2017 which worked against his reputation at the company. He submitted that he had listed an incident involving an uncooperative worker who was one of his direct reports. He outlined that she had left the shop without his permission on 7 February 2017 and he had sought a resolution to her disobedient behaviour. He did not receive any feedback on the complaint and instead believed that he had unwittingly become the target for scrutiny by his manager. The Complainant was dismissed following a series of investigations and disciplinary meetings. The Complainant sought to raise a grievance during this Disciplinary procedure on 18 December 2017, but this was not addressed. the Complainant submitted that he was a very high performer at the company and contended that he had been unfairly targeted by the management of the company who were intent on his dismissal. The Complainants representative outlined that the decision to dismiss the complainant amounted to a disproportionate sanction as the complainant had been “left out “long before this decision was taken by the company. The Complainant sought the remedy of compensation. Complainants Evidence: The Complainant confirmed that he made pizza for him and his family late at night as if they had been made earlier, they would not be fresh. He confirmed that he practiced this task freely in front of the store manager, Ms D and she had not told him to refrain. He had no intention of causing harm as the product was for personal consumption. The Complainant confirmed that he had understood that he had lost his job through repeated breaches of food safety but felt this was harsh, having not placed anyone at risk. He confirmed that he decided not to appeal the Final written warning following a conversation with Mr A. He submitted that there was no point in appealing. He believed himself to have been a very good employee over a 6-year period and had only experienced problems over the past year as a senior manager had formed the view that he was not a good employee. He believed that he had been singled out. The Complainant confirmed that he found new work 2 weeks post dismissal and undertook to submit a table of loss. During cross examination, The Complainant confirmed receiving training in food preparation. He only made the food in the cold room for family and to save time. The complainant contended that he was being excessively monitored post the “oven incident” to the point of active discrimination. He confirmed that he had not submitted a complaint during his employment save on 18 December 2017 during the Disciplinary process. He disputed that this was not a genuine grievance” invented as a last ditch to save his job” The Complainant contended that he had never been forgiven for raising issues regarding the disobedient employee and didn’t stand a chance at the subsequent hearings. In closing, the Complainants representative stated that the complainant was permitted to bring a pizza home in his daily allowance. He had been a very successful employee where Food safety issues had not been raised during his 6 year plus employment record. He contended that the decision to dismiss was wholly severe and disproportionate which informed the claim for unfair dismissal. CA -00017589-002 Terms of Employment The Complainant submitted that in the context of his promotion to Shift Manager, he had not been given a job description, or amended written terms of employment . He had sought to resolve the matter only to receive a copy of his primary contract for an Instore operative . |
Findings and Conclusions:
CA -00017589-001 Unfair Dismissal I have considered the evidence adduced in the case and the written submissions which accompanied this. Firstly, I would outline that I found a distinct lack of workplace records on performance management in this case. It was unclear to me at first how the complainant was managed on a day to day basis prior to the investigations in October and December 2017. The complainant himself was very clear that he was a high functioning employee without blemish prior to raising an issue about an insubordinate employee where he believed he was unsupported. The Respondent was clear that the complainant worked without incident until the “oven issue “which led to the first written warning in January 2017. In her evidence, Ms D did not expand on the daily profile of the complainant. In short, I could not establish any pre-disciplinary recorded management of the complainant outside the informal “chat “in a local hotel in April 2017. This prompted the Respondent to develop a view that matters between the complainant and the disobedient employee had resolved but the complainant reflected the outcome differently. He believed that he was singled out after that in terms of his opinion that he was managed out in December 2017. This prompted me to look very carefully at the circumstances surrounding the dismissal and the principal reason which operated in the Employers mind at the time of the dismissal. The Respondent has sought to rely on the protection of Section 6(4) of the Act and the Complainant has sought to rely on Section 6(7) of the Act by stating that the dismissal was unfair in terms of being disproportionate. Section 6(4) (b) of the Act provides that a dismissal can be judged as fair if the Dismissal arose wholly or mainly from the conduct of the employee. Section 6(7) of the Act provides that an Adjudicator can have regard for the reasonableness of the conduct of the employer (by act or omission) in relation to the Dismissal. In Hennessy V Read and Write Shop ltd UD 192/1978, The EAT referred to the test of reasonableness as 1. The nature and extent of the enquiry carried out by the employer prior to the decision to dismiss the claimant. 2. The employer’s conclusions following such enquiry that the claimant should be dismissed. As a first step, I considered the investigation minutes submitted covering 10 October and November 2017. I noted that the complainant was the sole participant in the investigation and I also noted that neither party put witnesses forward. I found it unusual that the company did not seek to recoup the overpayment to the complainant in the context of the alleged 3 falsifications of records on the clock in system. I also noted that the final written warning was not accompanied by any corrective action plan with stated targets and goals . I say this as a Disciplinary procedure is meant to serve as a corrective action to lead to an improved performance. I found this to be omission in that regard. In addition, I find that best practice dictates that the Investigatory minutes ought to have been conflated into an Investigation report to preface the Disciplinary hearing which followed. I accept that the complainant was on notice of the case against him, however, it may have focussed minds more to have had an actual Investigatory Report. I noted that the Complainant decided against representation prior to the Disciplinary hearing which occurred on December 14. I believe that the complainant may have benefitted from representation prior to this date as throughout his evidence, I found his awareness of the seriousness of the issues set out by his employer to be very limited and I found that he preferred to rely on a more simplistic version of conspiracy against him without recourse to proof. I found the effect of this was a minimisation of the fact that his continued employment was clearly at defined risk from November 7,2017 and the complainant demonstrated little regard for this. I then considered the rationale given for the dismissal as advanced by the Respondent. The dismissal letter of 3 January 2018 does not contain the words misconduct, gross misconduct or major misconduct as set out in the company procedures. Instead, the Respondent recorded that the complainant’s responses to the allegations were unsatisfactory. The Complainant admitted to the allegations in the main and gave an undertaking that he would improve. His reference to the lodging of a grievance, while I appreciate was intentional on that day was not lodged until December 18, 2017, some 15 days post dismissal and prior to the appeal. I found that this grievance was aimed at diverting the procedural framework then clearly underway. I say this as at the conclusion of the Appeal Meeting , the complainant was asked whether he had anything further to submit in his case and he said No ,the grievance was not referred to in a formal setting post its submission .Of course , the Respondent should have responded directly to the grievance ,but I cannot find that it was a material consideration at the time of dismissal for either party . I have reflected on the evidence adduced by the Respondent witnesses. I could not detect malice directed at the complainant. Instead I identified a very strong identity with the brand on offer to the public and a demonstrated pathway where training and adherence to HACCUP guidelines was emphasised. I am satisfied that by the time of dismissal the Respondent had afforded the complainant time to “mend his hand” from the earlier disciplinary sanction of November 2017. It was the evidence of Mr B which I found most compelling. I found a certain incredulity expressed that the complainant had repeated the earlier acts for which he had been placed on a final written warning, not appealed. This incredulity was addressed towards the complainants so swift in time repeated acts inclusive of the prohibited cold room food preparation . The presence of a final written warning is a very serious situation to find oneself in, it equates with “tight rope “walking for the 12-month duration. I found Mr B’s incredulity on the recidivism of the complainant in a very narrow time frame to amount to an enormous breach of trust and confidence. I found the complainants submissions in response to this point to lack insight. I took note that Mr C took time to reflect on the complainants submissions that cold room food preparation was the norm . I noted that he took two weeks to check this out post disciplinary hearing and prior to the appeal outcome letter I have stabilized that the employment relationship was in shreds by January 3, 2018 and the decision taken to dismiss, while harsh for a long-term employee was fair, having regard for the highest food standards attached to the Respondents business and the stated repeated difficulties of the complainant in this regard. Once trust and confidence have evaporated in an employment relationship , the vital cogs around which employment flows are fatally severed . I must accept that the REsponent activated its Disciplinary procedures in sequential fashion and the complainant was afforded due process and natural justice throughout. He was on notice not to repeat the acts which led to the final written warning on Nov 7. While I found the procedural errors as cited earlier, I could not establish that collectively, they rendered the dismissal unfair and the Respondent is therefore entitled to rely on Section 6(4) (b) of the Act. I find the dismissal to be fair. CA -00017589-002 Terms of Employment I have considered both parties submissions both oral and written on this complaint .I find that the omission of the provision of an amended terms of employment on promotion did have a continuous bearing on the facts of this claim . Had the statement been issued consistent with the promotion in 2014, it may well have anchored the complainants understanding of the enhanced role and enhanced responsibility which lay ahead of him. Its omission is stark . Section 5 of the Act sets down Notification of changes. 5 5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— ( a) 1 month after the change takes effect,…… I have found a continuous breach of Section 5 of the Act following the complainants promotion in 2014 .I find the complaint to be well founded . |
Decision: CA -00017589-001 Unfair Dismissal Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have found that the claim for Unfair Dismissal is not well founded . CA -00017589-002 Terms Of Employment Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 7 of the Terms of Employment (Information) Act, 1994 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under section 3 of that Act. I have found the claim to be well founded and in accordance with Section 7 of the Act , I order the Respondent to pay the complainant compensation in respect of this continuous breach amounting to €1,528.80 . |
Dated: 1st February 2019
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Unfair Dismissal , Revised written terms of employment . |