In the case of Da Silva v Kepak UD1378 [2011] the employee, who is a Brazilian, had worked for the employer between 2007 and 2011. He was a boner in the employer`s meat processing plant. The employee was dismissed for taking a photograph of a ‘pile-up’ of work that had built up while he went on a comfort break. It was contended by the employee that his dismissal had been unnecessary. The employer’s case was that the claimant had been fairly dismissed.
The employee, who was already in receipt of a final written warning, was dismissed following an extensive investigation and disciplinary process where he had been afforded fair procedures, the right to representation. There was an Irish co-ordinator who had fluent Portuguese and with whom grievances could be raised by the claimant or by any other Brazilian employee (as had, in fact, been done by the claimant in the past regarding other issues). The employee also had the right of appeal and in the appeal the appeals officer did uphold the original decision but decided to pay him notice he was due.
The employer argued that it was clearly laid out that due to the nature of the work, hygiene was of the utmost concern and, with the high level clients that they had, they could be audited at a moment`s notice. For that reason mobile phones were not permitted on the factory floor and all employees were made aware of this, and the possibility of cross contamination. There was a zero tolerance policy in relation to hygiene. The issue of confidentiality was also a concern with the company and for these reasons the use of mobile phones was considered to be serious misconduct and subject to disciplinary action.
The Tribunal was furnished with copies of the employer`s detailed policies where it emphasised the issue of cross contamination. The Tribunal asked the employee about the previous warnings and he said he did not appeal these. He also conceded that he never raised any grievances regarding getting cover on the line. The Tribunal was unanimous in their decision that the employee was fairly dismissed as because there was a clear breach of procedures by the claimant who had known that he should not have had his phone with him at the material time.
COMMENT
This decision confirms that where an employer can show they followed procedures and also had the appropriate policies and procedures in place they can defend themselves against claims from employees where it can be demonstrated that the employee broke rules where it was clear to the employee that a contravention of such rules was gross misconduct which would result in dismissal.