Case Number: ADJ-00006942. Workplace Relations Commission

Docket NumberADJ-00006942
Hearing Date06 October 2017
Date01 June 2018
CourtWorkplace Relations Commission
PartiesA Chef v A Catering service


Adjudication Reference: ADJ-00006942



Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994


23 January 2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994


23 January 2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997


23 January 2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977


23 January 2017

Date of Adjudication Hearing: 6 October 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham


On the 23rd January 2017, the complainant referred complaints to the Workplace Relations Commission pursuant to the Terms of Employment (Information) Act, the Organisation of Working Time Act and the Unfair Dismissals Act. The complaints were scheduled for adjudication on the 6th October 2017.

The complainant attended the adjudication and was represented by Michelle Loughnane, Senior Associate, Richard Grogan & Co. Solicitors. The respondent was represented by Michael McGrath, IBEC and four witnesses attended on its behalf.

In accordance with Section 41 of the Workplace Relations Act, 2015 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.


The complainant was dismissed following an incident of the 18th November 2016, which the respondent held to be gross misconduct. The incident involved the safe handling of food, in this case, chicken. The respondent denies the claim of unfair dismissal and the other complaints made pursuant to the Terms of Employment (Information) Act and the Organisation of Working Time Act.

Summary of Respondent’s Case:

In respect of the unfair dismissal claim, the respondent outlined that there had been a previous issue involving food safety a year before. It involved partly cooked food and training had been provided to the complainant. An online presentation on food safety was also available to the complainant. The respondent outlined that the complainant was a team lead. He was dismissed for gross misconduct and breach of trust. It referred to the definition of gross misconduct in the Disciplinary Procedure and the findings of the investigation. The complainant had said that he stored the food items in the freezer as he was going on a break.

In evidence, the Catering Operations Manager described the incident as a very serious one and could have caused food poisoning. The respondent had provided updated training and external audits. The complainant knew what was acceptable and it was not possible for the respondent that this could happen at a client facility, in particular in the light of a danger of a food poisoning outbreak. They had made clear what was not acceptable and had done all they could in the previous 12 months. The Catering Operations Manager said that he considered the complainant’s service but he also looked at the level of risk to customers and what had happened. The food item was in the danger zone when placed in the freezer and this represented a clear breach.

In cross-examination, the Catering Operations Manager gave an account of his academic qualifications and work experience. It was put to the Catering Operations Manager that he referred to there being a “huge knock-on effect” for the client from the complainant’s actions and how could this statement be made when no decision had been made; he replied that he was referring to re-tendering for this client’s contract and the knock-on effect. The Catering Operations Manager referred to possible consequences with the client and on this and other sites.

The respondent submitted that it considered alternatives to dismissal and this was based on the severity of the issues. Corrective action was unreasonable given the serious nature of the issue and the seniority of the complainant. There was enormous risk and this warranted dismissal. The colleague was more junior and was also subjected to disciplinary action. He had acted under the complainant’s supervision and received a final written warning. The respondent submitted that this showed that there was no automatic trigger of dismissal. While there was equality in their breaches, the employees had different levels of experience. The complainant was offered the opportunity to bring a representative and refused to bring one. The auditor’s email did not change the facts of this case and the basis of the dismissal. The quotes from the email in the letter of dismissal were immaterial.

The complainant had been fully trained and did not dispute what should be done. He knew it was dangerous and that the chicken posed a risk. The respondent was not given any comfort in the complainant’s answers. The respondent submitted that “the punishment fitted the crime” in catering in the light of the legal requirements related to the cooking of food. There was a risk to health, reputation and to the tender. The respondent submitted that it was not clear whether the chicken was disposed of, but it should have been disposed of.

In respect of the complaints made pursuant to the Terms of Employment (Information) Act, the respondent outlined that the complainant transferred to it further to a transfer of undertaking in 2008. A contract was issued in 2007 and the complainant raised no issue about the contract. The respondent submitted that canteen breaks were mentioned in the contract and the complainant was also supplied with records for hours of work and breaks. Staff memos also referred to break times and allowances. The respondent provided notice of breaks. The contract stated that hourly rate of pay and the total hours per week. The information supplied in relation to the transfer gave information regarding an increase in pay. The respondent submitted that it was not appropriate to make an award under the Terms of Employment (Information) Act.

In respect of the complaint made pursuant to the Organisation of Working Time Act, the respondent outlined that the complainant had been provided with a break entitlement fact sheet. He opted to take a second break at the end of his shift. The respondent had supplied the records and any breach of section 25 was a matter for the WRC inspection services. It was inappropriate to award compensation as the complainant had taken...

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