ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013550
Parties:
| Complainant | Respondent |
Anonymised Parties | A Kitchen Assistant | A Hotel |
Representatives | Self-Represented | Barry O ’Mahony BL instructed by DAS Ireland |
Complaint(s):
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-00017736-001 | 04/03/2018 |
Date of Adjudication Hearing: 28/08/2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The issue concerns a Hotel Kitchen Assistant who alleged that he had been Unfairly Dismissed by the employing Hotel. |
1: Summary of Complainant’s Case:
On the 27th November 2017 the Complainant felt unwell and did not eat any lunch at work He decided to take some hotel food home instead. He took two handfuls of prawns from the Kitchen counter and put them into his bag to take home. The bag was stored in the Chemical Storeroom off the kitchen. On his way home he was stopped by Management and his bag searched. The prawns were found and he admitted he had taken them. He was suspended the following day. An investigation Meeting took place on the 5th December followed by a Disciplinary meeting on the 13th December 2017.He was Dismissed following this meeting. An Appeal Hearing was heard on the 5th January 2018. The Appeal was unsuccessful. The Complainant made the case that the Penalty of Dismissal imposed was completely disproportionate to the offence committed. He pointed to his good and unblemished service record. There were many instances of staff taking food home from the Hotel without formal permissions. He had been treated selectively in a most negative manner. It was a continuation of the Bullying he had receive from a Sous Chef. He had not formally complained of this in the interest of keeping his position and not causing trouble with other staff. The Penalty of Dismissal had been completely over the top and was as a result of an agenda against him in the hotel particularly by the Sous Chef who had initially found the bag. The Sous Chef had effectively set him up by his actions in finding the bag and alerting Management to the need to search it. |
2: Summary of Respondent’s Case:
The basic facts of the case are much as described by the Complainant. His bag had been searched and the prawns discovered. A full and proper Investigation and Disciplinary Process had followed including an Appeal. It was all carried out in keeping with the Company Handbook and agreed Rules and Staff Procedures. The Complainant was well aware of these procedures. The evidence was clear cut and the Complainant had admitted that what he did was wrong. The Hotel has clear cut and well documented procedures in relation to staff meals and taking food home. The actions of the Complainant in taking food, in a completely unauthorised manner, from the Kitchens a complete breach of trust and grievous misbehaviour. The suggestions of any malice or negative agenda by the Sous Chef were completely denied. The Complainant had never during his employment raised any issues with management regarding the chef. The allegation that different standards apply to other staff was robustly denied. No evidence was presented to substantiate this allegation. Having considered all the evidence and the statements of the Complainant the penalty of dismissal was warranted in the circumstances. |
3: Findings and Conclusions:
3:1 The Law – The Unfair Dismissal Act, 1977; SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures and the Precepts of Natural Justice. The issue of Proportionality and the Band of Reasonableness in Employer decisions. Statute Law in the UD Act of 1977 Section 6 states and attention is drawn to sub section b below. (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: ( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, ( b) the conduct of the employee, ( c) the redundancy of the employee, and ( d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
Accordingly, dismissal for misconduct is therefore possible.
However, a key legal issue then arises as to the fairness of procedures and whether the rights of the employee were respected in keeping with Natural Justice. In Frizelle v New Ross Credit Union Ltd, [1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:
“1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant. 2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion. 3. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment. 4. The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered. 5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee. Put very simply, principles of natural justice must be unequivocally applied.” SI 46 of 2000 – Statutory code of Conduct on Grievance and Disciplinary Issues effectively translates Mr. Justice Flood’s observations into common practice. Accordingly, having reviewed all the evidence, the extensive paperwork and meeting minutes supplied I came to the view that the Procedures followed had been proper and in keeping with Natural Justice. The question them moved to the issue of Proportionality and the “Band of Reasonableness” of the Respondent Employer decision. 3:2 The Role of the Adjudicator; The Band of Reasonableness and the issue of Proportionality. There is extensive legal Authority regarding the Principle that the Tribunal or the Adjudicator is not to substitute themselves for the Employer and effectively engage in a de facto rerunning of a Disciplinary case. The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445 “It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295: “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.” The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length. Considering the Penalty of Dismissal imposed when seen against the charges made against him I had to have regard to the principles of “reasonableness”. It is not for the Adjudicator to revisit the Penalty but rather to see if it falls within the “band of reasonableness.”. This was first set out in the headline case British Leyland UK Ltd v Swift [1981] IRLR 91. This case has been followed closely in subsequent case law. In essence it made the point that if a Dismissal decision is “Reasonable” and one which an employer in a similar situation might take then it is deemed to be fair provided of course that all requirements of Natural Justice have been observed. In Allied Irish Banks plc v Purcell [2012] ELR 189 Judge Linnane stated that “It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s but to ask was it reasonably open to the Respondent to make the decision it made rather than necessarily the one the EAT or the Court would have taken.” Guidelines as to what is “Reasonable” is considered in Hennessy v Read & Write Shop Ltd UD 192/1978 where it is stated “in deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to 1: The nature and extent of the enquiry carried out by the Respondent prior to the decision to dismiss the claimant, and 2: The conclusion arrived at by the Respondent that, on the basis of the information resulting from such an enquiry, the claimant should be dismissed.
3:3 Conclusions from the evidence both Oral and Written A number of conclusions have to be drawn. Firstly, there was a full Investigation and a proper Disciplinary Process. There were no obvious procedural flaws in the process. Secondly, the Complainant did not deny taking the materials, the prawns, in question. Thirdly, the matter really before the Adjudication Officer was the “proportionality” of the Dismissal decision. In considering this question I noted that the Hotel had a well laid out and properly communicated staff policy regarding staff meals and as well as a policy regarding staff being allowed to take home food that might be surplus following a function. Accordingly, in view of all the above, I had to come to the view that the decision to dismiss in this instance, while ostensibly appearing harsh, was one that would fall into the realms of an acceptable decision by reasonable Hotel and Catering employers. It follows therefore that the Dismissal was not Unfair. The appeal is dismissed.
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4: Decision:
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.
Act | Complaint/Dispute Reference No. | Summary decision/Please refer to Section 3 above for detailed reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00017736-001 | Claim is dismissed. No finding of Unfair Dismissal is found. |
Dated: 17th January 2019
Workplace Relations Commission Adjudication Officer: Michael McEntee