A Stale Chicken Wrap = Gross Misconduct? “No” Says EAT and Awards €50,889 for Unfair Dismissal

A supervisor with Gate Gourmet has been awarded €50,889 in an unfair dismissal claim. The worker had a blemish free record for 19 years and the Employment Appeals Tribunal decided that the sanction of dismissal was “a disproportionate sanction in all the circumstances”.

gross misconduct
Dismissed for “gross misconduct”

Gate Gourmet had a contract supplying airline food to various airlines. In 2012 they received a complaint that one of their customers had been supplied with an out of date and stale chicken wrap; in fact, the wrap was out of date in February, 2012 and the complaint received in April, 2012.

Gate Gourmet’s contract with this customer was to expire in July 2012 and this incident made it very difficult to ensure the contract was renewed.

This worker was found to have failed to follow standard operating procedure and was dismissed for gross misconduct on the grounds that the company took incidences such as this very seriously.

Two other employees also failed to notice the out of date wrap and received final written warnings. This different treatment from the sacked worker was something that was noted by the EAT.

The dismissed employee told the EAT that another worker actually took responsibility for not checking and recording the product, in accordance with procedures.

The EAT awarded him €45,000 for unfair dismissal and €5,889 in lieu of 8 weeks’ notice to which he would have been entitled.

Missing Jam Tarts Leads to “Fair and Proportionate” Dismissals Because of “Reasonable” Zero Tolerance Policy

This case was an appeal to the Employment Appeals Tribunal of a Rights Commissioner decision who had decided the two men involved, Boyne and Moran, were fairly dismissed.

jam tarts dismissal
Employer’s zero tolerance policy “reasonable”

The background to the case is the 2 men worked for Keelings Logistics Solutions who operated as a distribution company for the supply of goods to one customer. The 2 employees worked in the warehouse.

The security manager saw the 2 men “acting suspiciously” beside an open cage and saw the cage being moved. He also said he saw the men eating something and putting their hands inside the cage and stated the men had no business standing together in front of a cage.

The employer had a policy that no food would be consumed on the warehouse floor and installed vending machines on the shop floor to prevent staff tampering and/or eating stock.

The Warehouse Manager was alerted and it became clear that a box containing jam tarts had been tampered with and two individual tarts were missing from a packet.

An investigation was carried out and after a CCTV footage reviewed many times. The men said they were sharing a Mars bar and denied eating the jam tarts.
The employer carried out a disciplinary procedure and dismissed the men who appealed the decision but lost.

The EAT found that the men’s evidence was not credible and on the balance of probability that they did tamper with the stock.

The Tribunal also found that there were no procedural defects which would render the dismissal unfair. The investigation, disciplinary meetings and appeal were thorough, fair and objective.

The Tribunal decision also stated:

The Tribunal must assess where or not the sanction imposed was proportionate. The respondent stated that its function is to accept deliveries, process them and dispatch it to a third party stores. The third party is their only client and they are totally reliant on them for their business. There is a high level of trust between the respondent and the third party and that must be maintained at all times. If they tolerated staff tampering with stock the working relationship between them and the third party could be irretrievably damaged. That is why there is a zero tolerance policy. The respondent has placed vending machines on the shop floor to prevent staff tampering and/or eating stock. The Tribunal accepts that the respondent’s zero tolerance policy is reasonable in the circumstances. Any dismissal arising out of a breach of the policy is fair and proportionate.

Comment

What I find interesting about this case is that the EAT found that the employers zero tolerance policy in relation to staff tampering with stock was “reasonable in the circumstances”.

Many cases similar to this one has seen the EAT finding that the response of the employer was excessive and disproportionate.

But the fact that Keelings Logistics Solutions had only one customer and there was naturally a very high degree of trust required between them and their customer seems to have been critical in the EAT finding that the zero tolerance policy was reasonable.

Read the full decisions here and here.

Failure to Accommodate Employee’s Return to Work on Part Time Basis Costs Employer €40,000

This case concerned a man who worked in a quarry and suffered a brain tumour.

He brought a claim that he was discriminatorily dismissed from his job and the employer failed to provide reasonable accommodation for his return to work.

Background

The man started working in the quarry in 2004. In 2009 he underwent surgery for a brain tumour and he made a full recovery. He was advised by his doctor that he would be fit to work for 20 hours per week.

The employer initially accepted this and accommodated him and gave him 5 four hour shifts with no driving of company vehicles. However within a couple of months the employer told him he would have to return to a 39 hour week or he would lose his job.

In January 2011 the employee was absent from work on sick leave as his doctor said he could only do 20 hours. The employer arranged an independent medical assessment in June 2011 and in August 2011 he was dismissed because the employer could not give him 20 hours per week only and the employee was not able to work 39 hours.

The employee appealed this decision but was unsuccessful.

He then brought a claim that he was discriminated against on the grounds of his disability-the brain tumour-and also that the employer failed, contrary to  S. 16 of the Employment Equality Acts to provide reasonable accommodation for his return to work.

Decision of the Equality Tribunal

Firstly, the Tribunal decided that the long term illness arising from the brain tumour was a “disability” within the terms of the Employment Equality Acts.

The employee pointed out to the employer that as he was only being paid for the 20 hours worked and overtime was cut, it was in the employer’s interest and was not costing the employer disproportionately.

He also offered to share the job with his son, also employed by the quarry, with his son doing the balance of the 39 hours.

The employee was 62 and only had 3 years to go to retirement and rang the employer regularly asking to be accommodated with the 20 hours work week. He said allowing him to do so did not place a disproportionate burden on the employer but the employer did not engage with him in a meaningful way.

The employer said that it needed the machine operated by the employee to operate in a full time capacity.

However it did not comment at the hearing on the offer of the man’s son sharing the job to ensure this happened.

The employer also referred to a department of Social Welfare scheme which allowed the employer to accommodate the employee in the first instance. However this scheme came to an end and it was then that the employer decided that it was 39 hours per week or dismissal.

The Tribunal found that regardless of any support provided by the Department of Social Welfare in these circumstances, the employer still had an obligation under the Employment Equality Acts to accommodate the employee.

The tribunal also found that permitting part-time work is one way in which reasonable accommodation can be provided and that the employer failed to provide reasonable accommodation to the employee within section 16 of the Employment Equality Acts and was entitled to succeed in this aspect of his claim.

His complaint of discriminatory dismissal was also upheld as the Tribunal found that his dismissal was directly related to his disability and to the employer’s failure to provide reasonable accommodation to him to return to work.

The Tribunal awarded him the maximum amount it could award in this case-€40,000- and noted that this was compensation, not pay, and was therefore not subject to tax.

Decision date:26th September, 2014

Read the full decision here.

Dunnes Stores Manager Sacked for Gross Misconduct Wins €16,630 for Unfair Dismissal

If you think that dismissing an employee for “gross misconduct” is easy, think again. This case involved a department manager with Dunnes Stores, Eleanor Preston, who set up a side business selling goods from a cash and carry to colleagues.

 

She admitted doctoring a letter from a community organisation group who packed bags in Dunnes in order to set up an account with a cash and carry in the name of the community group. The community group complained to Dunnes and on foot of this Dunnes suspended and then sacked (following a disciplinary hearing) Ms. Preston.

 

Dunnes argued at the Employment Appeals Tribunal hearing that they had lost the fundamental trust required in the employer/employee relationship. Ms. Preston explained that she was in financial difficulty when she ran her “enterprise”.

 

Ms. Preston had a good service record of 10 years with Dunnes and a clean disciplinary record. Dunes claimed that they took both of these into account in their decision to dismiss.

 

Ms. Preston appealed the decision to dismiss but the decision was upheld by a regional manager who said the essential element of trust was no longer possible.

 

The Employment Appeals Tribunal took a different view:

“As this was the claimant’s first offence, committed in a time of great personal difficulty which the respondent was aware of, the sanction of dismissal was disproportionate.”

 

Ms. Preston was awarded €14,000 in compensation for unfair dismissal and an additional €2,630 under the Minimum Notice and Terms of Employment Acts 1973 to 2005.

 

Conclusion

It can be very difficult to dismiss an employee for gross misconduct-you can learn more about unfair dismissal here.

Forklift Driver Wins Over €20,000 Under New Temporary Agency Work Legislation

The Protection of Employees (Temporary Agency Work) Act, 2012 came into effect in May, 2012. However the pay provisions of the act were made retrospective to December, 2011.

This case-Team Obair Limited and Robert Costello-involved a fork lift driver who was paid €13.50 per hour. He first brought his case to the Rights Commissioner service and failed. He was arguing that he should have been paid the going rate for fork lift drivers at the hirer’s workplace.

The hirer in this case was Logistics Company Shannon Transport Logistics (STL) who had the contract to provide services to Diageo Guinness Ireland and who traditionally paid €18.50 per hour to forklift drivers.

Team Obair Limited told the Court that when it commenced the contract it obtained a statement in writing from Logistics Company Shannon Transport Logistics (STL), pursuant to s.15 of the Act, setting out the basic terms and conditions that it would apply if it employed workers directly on the same work as that undertaken by agency workers assigned to it by the Respondent. In that statement the hirer indicated that it would pay fork lift workers the same rate as that paid to the Claimant by the Respondent, that is €13.50.

The case turned on the argument by the Respondent that the fork lift driver rates of €18.50 were historical and would not be paid now if taking on drivers.

The Court stated:

While this is acknowledged by the Respondent it contended that those rates are historical. It submitted that if the hirer took on new employees at the time that the Claimant’s assignment is deemed to have commenced the rates payable would be those specified in the s.15 notification upon which it relies. That, however, is a mere assertion which cannot be elevated to an evidential basis upon which the Court could make findings of fact. In particular, the Respondent has not pointed to any pay determination arrangement operated by the hirer the application of which might result in fork lift drivers being paid €13.50 per hour.

However the Court found that this argument, if accepted, would be subversive to the purpose of the legislation and render it “nugatory”.

The Court found:

For these reasons, and in the absence of any reliable evidence to the contrary, the Court has come to the conclusion that it is more probable than not that had the Claimant been employed by the hirer on 5thDecember 2011 he would have been paid €18.50 in line with other fork lift drivers similarly employed. Accordingly, that is the rate to which he is entitled pursuant to s.6(1) of the Act. Accordingly the Court must hold that the Claimant is entitled to succeed in this appeal.

It then ordered:

In accordance with Clauses (a) and (b) of sub paragraph (3) above, the Court declares that the Claimant’s complaint is well founded and it directs the Respondent herein to adjust the Claimant’s rate of pay to €740 per 40 hour week, or €18.50 per hour, with effect from 5th December 2011.

This works out at in excess of €200 per week.

You can learn more about temporary agency workers rights and the new legislation Protection of Employees (Temporary Agency Work) Act, 2012 here.

You can read the full decision of the Labour Court here.

Public Transport Employee Dismissed for “Gross Misconduct” Wins Reinstatement

A public transport employee who spat at a member of the public and was dismissed for “gross misconduct” has won her case to be reinstated in employment with the employer.

(Appellant: employee

Respondent: employer)

Member of the public annoying other passengers-appellant intervened-appellant was racially abused and spat at-she spat back at the passenger-all was recorded on CCTV-appellant admitted she was at fault in disciplinary process-employer dismissed her for “gross misconduct”-appellant brought case to Rights Commissioner-Rights Commissioner rejected her case-appealed to Employment Appeals Tribunal-appellant appealed the “too severe” penalty-pointed to her excellent prior record-EAT found that the dismissal was disproportionate-referred to section 6(1) of Unfair Dismissals act, 1977-”substantial” grounds are required to justify dismissal-EAT found that appellant’s conduct contributed to her dismissal-nevertheless appellant to be re-engaged back into the position she previously held and to take effect from 1st Jan. 2012-the period of absence from December 2010 to January 2012 to be counted for continuous service but not remuneration or leave entitlements.

 

Date of Hearing: 4th April, 2013

For Appellant: Rosemary Mallon B.L. instructed by B.P. O’Reilly Solicitors, Tallaght, Dublin 24

For Respondent: David Farrell, IBEC, Lower Baggott Street

Read full decision here

Static Guard Awarded €11,500 under TUPE (Protection of Employees on Transfer of Undertakings) Regulations

Employee was a static guard at business centre in Limerick-transferred following the transfer of an undertaking-prior to transfer worked 47.5 hours per week and started at 8.30 am-after transfer asked to start at 8.00 am-employee then working 50 hours per week in contravention of Organisation of Working Time Act,1997-hours then reduced to 48 hours per week-employer claimed a national agreement with SIPTU re static guards-employee claimed there was no national agreement-he did not want to work nights-employee given notice of reduction in hours to 40 hours per week, 4 days’ work rather than 5-employer claimed there was no sense in giving 5 days resulting in a 47.5 hour week as they needed normal working day to be 10 hours-tribunal found no documentary evidence of national agreement-Tribunal found that employee was entitled to stay on a 47.5 hour week as he enjoyed prior to transfer-Tribunal varied decision of Rights Commissioner and awarded €11,500 under European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

Decision published: 17th July, 2013

Read full decision here

Montessori Teacher Awarded €32,500 for Unfair Dismissal in Kildare

Montessori school in Kildare-Board of Trustees runs the school-Principal asked RD to go on board-Principal went on administrative leave in 2010-Vice Principal took over Principal’s class-Board asked Vice Principal for report on each child-Principal unhappy with this report-felt Vice Principal was trying to undermine her position-report questioned Principal’s competence, professionalism, and commitment to school’s method-Principal alleged report was defamatory and offensive-wrote to the Board with her views-gave a copy of the letter to the Vice Principal and asked her to reflect on her report-Principal invited to disciplinary hearing-purpose of meeting to discuss Principal’s actions/behaviour towards Vice Principal-Principal had asked Board to remove Vice Principal from school-Board sought advice from HR consultant-at disciplinary hearing Principal clarified that she wanted Vice Principal removed from post of Vice Principal, not from teaching post in school-a performance improvement weekly plan was initiated for the Principal-Board decide that Principal’s action in handing a copy of her letter to the Board to the Vice Principal and asking Vice Principal to step down to be serious misconduct-Board decided termination of the Principal’s employment was justified-previous warnings on the Principal’s file were not considered-Principal was offered a right to appeal-Principal did not appeal-Principal’s case that she had suggested an independent facilitator to assist with the matter-gave the independent facilitator background information who contacted the Board-Principal suspended at this point for breach of data protection-Principal attended disciplinary hearing with her solicitor-felt her position was undermined by the Vice Principal’s report while Principal was on administrative leave-Principal saw no point in questioning Vice Principal at disciplinary hearing-Principal dismissed on 3rd March, 2011-following legal advice Principal did not appeal-no faith in appeals process-Tribunal found that procedures used by the Board were unsatisfactory-it would have been helpful if principal availed of appeal’s process-nevertheless Tribunal found that the Principal was unfairly dismissed and awarded 32,500 euros.

Date decision published: 18th June, 2013

Read the full decision here.

Unfair Selection for Redundancy-Awarded €50,000 for Unfair Dismissal

The Employment Appeals Tribunal (EAT) awards 50,000 euro for the unfair selection for redundancy of environmental manager.

Claimant worked her way up in Oxigen Environmental-was told her role would cease-notified of redundant-company had decided a week earlier that her role would cease-claimant said she was unfairly dismissed and sought reinstatement-alternatively, she claimed that she was unfairly selected for redundancy-respondent claimed her redundancy was part of a company restructuring-claimant informed of potential redundancy on 29th April, 2010-redundancy was confirmed on 26th May, 2010-came into effect on 26th June, 2010-no appeal from claimant-Tribunal found that claimant was not treated fairly or reasonably-selection criteria must be objectively applied in a fair manner-no hard and fast rules for criteria-criteria will come under scrutiny if employee claims unfairly selected-no agreed procedure for redundancy in this case-therefore employer must act fairly and reasonably-EAT held that there was no serious or worthwhile consultation with the claimant-decision to make the position redundant was made before consultation with claimant-no substantial consideration given to alternatives to redundancy-no worthwhile discussion in relation to the criteria for selecting the claimant-claimant’s suitability for other roles should have been considered-Tribunal found claimant was unfairly dismissed by virtue of her unfair selection for redundancy-awarded 50,000 euro for unfair dismissal in addition to redundancy payment of 10,014 already paid to the claimant under Redundancy Payments acts 1967-2007.

Decision published: 27th June, 2013

Read the full decision here

Creche Worker’s Week Cut from 5 Days to 3-Wins €10,000 for Constructive Dismissal

A crèche worker (child minder), whose working week was cut from 5 days to 3 due to the financial pressure on the employer, wins €10,000 for constructive dismissal.

Creche worker since 2006-employer wanted to introduce 10% pay cut-claimant refused to sign letter consenting to wage cut-claimant’s working week cut to 3 days-40% reduction in pay-her contract stated “normal working week will be 5 days”-claimant certified unfit to work by her doctor-eventually resigned-did not invoke grievance procedure-Tribunal to look at whether there was a “significant breach of the employment contract”-Tribunal finds that “employee was singled out following refusal to sign letter”-that employer then unilaterally altered the terms and conditions of the employment contract-reduced working week from 5 days to 3-reduced wages by 40%-Tribunal found that the claimant was constructively dismissed.

Decision published: 19th June, 2013

Read the full decision here.