A Co Cavan farmer who was sacked by Pat the Baker after being accused of stealing waste flour has been awarded €13,400 for unfair dismissal.
adraig Cunningham had always denied theft, maintaining he was doing his employer, Pat the Baker Unlimited, a “favour” by taking away material from its site in Granard, Co Longford.
He told the Workplace Relations Commission that it would be dangerous to livestock if it ended up in animal feed and he instead composted it on his own land.
Pat the Baker’s position was that the waste material, which consisted of flour captured during sieving, waste dough, unsaleable bread and unusable ingredients, could be sold to a food disposal firm at €68 a tonne to make feed – and that Mr Cunningham knew he wasn’t supposed to take it.
“We’ve a very clear no-tolerance policy for theft, whether that is 20 cent or €2,000,” the company’s head of human resources Frank Burton told a Workplace Relations Commission hearing in March.
But Mr Cunningham’s complaint of unfair dismissal was upheld in a decision published today – in which the adjudicating officer found the removal of waste flour was “well known within the organisation” and that the bakery had acted unreasonably in sacking an employee of 24 years’ service.
The bakery’s general manager Anthony Maguire said he started watching CCTV tapes after bottles of hand sanitiser went missing in April 2020 – and noticed footage of Mr Cunningham taking away a full waste bin on the front loader of a tractor.
Mr Maguire said the footage showed the complainant coming in late at night or early in the morning – and that he had never given permission for the practice, nor had anyone else in authority in the company.
The bakery’s HR manager, Frank Burton, said he investigated the matter and that Mr Cunningham admitted taking the material but insisted he had permission.
The investigation had found “factual discrepancies” in his statements and that the complainant had been “unable to demonstrate he had permission”.
Mr Cunningham was dismissed for gross misconduct on 17 May 2020, the WRC was told.
Declan Fitzgerald, the company’s managing director heard an appeal in July 2020 and upheld the termination.
He said there would be “huge implications” if the material allegedly stolen by Mr Cunningham had ended up in the human food chain without being processed by a registered receiver of food waste.
“It could be well up to closure, contaminating the food chain, a high fine, a percentage of turnover,” he added.
He said that as secretary of the Cavan Beef Plan group, Mr Cunningham should have been particularly aware of the risks involved if the material was given to animals.
“It’s theft,” Mr Fitzgerald said.
Mr Cunningham said he took away material on the instructions of his superiors.
“It can’t go into animal feed – it’s flour going into landfill,” he said. “It could contain glass shards, heavy metals, timber – we were always told it has to go into landfill.”
Mr Cunningham’s barrister, Conor Quinn BL, asked him to comment on stills from the CCTV footage, including one where he could be seen moving pallets of expired soda bread mix.
“He [a manager] brought it out to me and said get rid of that,” Mr Cunningham said. “That’s for you, get rid of that.”
“If it moulds it’ll cause breeding cattle to abort, they can’t be fed it,” he said.
He also said flour improver he was accused of taking was mostly composed of ascorbic acid, which would “poison the rumen” of cattle and could not go in animal feed either.
“The best thing to do would be to compost it,” he said.
He said he gained no advantage from removing the material from the yard and considered himself to be “doing a favour moving it, getting rid of it”.
“It wasn’t me that was putting the company at risk. The only way the company was at risk was by putting that stuff in the [feed contractor’s] bin,” he said.
In her decision, adjudicating officer Marguerite Buckley wrote that the disciplinary process applied to Mr Cunningham “did not comply with the general principle of natural justice and fair procedures”.
“No alternatives to dismissal were considered and as a number of the complainant’s co-workers had given statements that [he] had been taking waste flour for some time, no consideration of his explanation in its historical context was considered,” she wrote.
There was no written record of Mr Cunningham being told not to take the flour, nor any record of him receiving or being trained in the company’s new waste policy, she noted.
The taking of the waste flour was “well known within the organisation” and Mr Cunningham – a long-serving employee who had worked at the firm for 24 years — had made an “immediate admission and explanation” for his actions, she wrote.
“I don’t find that the Respondent’s dismissal finding lay within a range of responses which a reasonable employer might make,” she concluded.
Ms Buckley ordered Pat the Baker to pay Mr Cunningham €13,400 for the 21 weeks’ financial loss he suffered before finding work again.
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