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Sacked from restaurant, how to appeal?


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Hi all,

 

 

My friend was sacked from a well known restaurant where he worked as Junior Manager. The charges of Gross Misconduct were made following an internal audit and in brief were:

 

1) the auditor claims that the temperature records from fridges were falsified to show valid (lower) temperatures than what was the actual temperature. My friend did not spot these falsified records and therefore was considered liable for the health & safety hazard.

 

Now, the temperature probing of the fridges is in this restaurant a duty of kitchen staff. There is no written procedure about this, only the common practice in several restaurants of the same chain where my friend has worked before. Witnesses can be called to confirm this. The manager on duty receives the temperature records from the kitchen and signs them off before archiving (or deciding to act if the temperatures are not within normal range).

 

In this case, the auditor used the same thermometer they had in the kitchen, realised that some food was not kept at the right temperature and reported that the temperature records were falsified (their words). The restaurant was closed, managers suspended, later on sacked for Gross Misconduct, while the kitchen staff kept working as normal after the fridges were allegedly repaired.

 

2) The disciplinary hearing that followed had an incident. The senior manager who conducted it refused to let my friend take with him a copy of the transcript. When the dismissal letter arrived, the basis for the decision was the transcript which contained claims and admissions that my friend never made.

 

 

I would be very grateful if you can comment on this (while I await for the official Legal Aid and representation):

 

regarding 1) How would a tribunal see this case of an individual being charged with Gross Misconduct for not detecting something falsified?

 

My friend used in good faith the temperature records that were given to him, how can the company defend that his employment was untenable when the authors of the alleged falsification were not even suspended?

 

Moreover, there was a report given by the fridge technician on the day of the audit (afterwards) stating that the fridges were too close to the ovens, leading to unpredictable temperature variations. The installation of the fridges was not made by my friend, so how can any assumption regarding their performance stand in court if the company was made aware that the fridges were not working according to specification?

 

Regarding 2) Is it a fair next step if the letter of appeal simply repudiates the transcript of the hearing, on the basis that my friend did not sign or otherwise agree that it was an accurate representation of the meeting?

 

Thanks in advance for any help. I will write back as the story progresses. If the court hearing does proceed and the outcome is made public, I will be happy to reveal what restaurant I'm writing about.

 

-- Mike.

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Not sure how you expect to get Legal Aid on this one, given that it has been abolished for pretty much everything but Criminal Law, high value or complicated Med Neg, and cases involving public interest.

 

I don't see how you can sack a manager for failing to realise that a record was, apparently falsified. How long was your friend employed for?

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Hi,

 

Not sure how you expect to get Legal Aid [...]

 

OK. The jobcentre people suggested it was a valid possibility. We'll see.

The "no win no fee" crowd have shown some enthusiasm about this claim.

 

I don't see how you can sack a manager for failing to realise that a record was, apparently falsified. How long was your friend employed for?

 

He was there for just under 2 years.

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Hello and welcome to CAG, sorry to hear about your friend's problems. Does he have a contract or particulars of employment or job description that spells out what his duties were?

 

HB

 

Hi

there is a contract and there is even a rule book for health & safety procedures. None of them specify whose job is it to probe food to check its condition.

 

KR

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Was any explanation put forward as to why the auditor held that the temp logs were false?

Was it explained why your friend should have known that this was the practice?

 

This all seems very dodgy. surely the kitchen staff would be first and foremost for the chop if this was going on.

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Was any explanation put forward as to why the auditor held that the temp logs were false?

 

the auditor used a temperature probe (a thermometer at the end of a long stick :) ) and tested some diferent areas of the fridges. The readings varied wildly and some were unusually high, while the official records were quite constant and always within OK range. The auditor therefore writes on the report that records had been falsified.*

 

Was it explained why your friend should have known that this was the practice?

 

now that's the key thing here. He swears that the manual does not specify the procedures in that kind of detail, but I have yet to see the manual. If it reads that the manager has to use temperature probes to double check what the kitchen staff do, it's game over. I'm eager to get my hands on a copy.

However, the version that is corroborated by the witnesses is that the temperature probing is part of the chef's training, not the manager's training; and that in the last 5 years the different witnesses have been working in different restaurants of this chain, only once a manager was seen probing fridges. That's what my friend did: he saw the reading on the control panels of the fridges always at the right temperature, he saw the chef's records showing OK temperatures... so, there's nothing to do there.

 

This all seems very dodgy. surely the kitchen staff would be first and foremost for the chop if this was going on.

 

true. From what I've read so far "gross misconduct" is not a definition set in stone but leaves some room for interpretation. The prior rulings seem to involve definitions like "a problem so serious and unrepairable that the continued employment is out of the question". Now, how can someone say that the employment of the supervisor is out of the question when the employment of the guy who actually did the deed does not warrant suspension? In my view, it follows that the alleged misconduct was not sufficient grounds for dismissal - it should have resulted either in a formal warning or in gross misconduct for all.

 

 

* I speculate that the auditor has supernatural powers. He can look at list A: 3, 5, 4, 5, 4, 5

and list B: 3 ,2 ,4, 3, 5, 3

and tell which one was copied from the thermometer screen and which one consists on random numbers :D

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Certainly seems to be a good case for wrongful dismissal. Unless it is clearly defined in the contract or by custom that the manager should double check the duties of the kitchen staff, then he has not done anything to warrant more than a heads up to do so in future. This would seem to be more a case of a knee jerk raction to the restaurant being caught out and the buck stopping with the manager. There is also the very real matter of the disciplinary action being dsproportionate to any action taken against those responsible, ie none.

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Hi all,

 

 

My friend was sacked from a well known restaurant where he worked as Junior Manager. The charges of Gross Misconduct were made following an internal audit and in brief were:

 

1) the auditor claims that the temperature records from fridges were falsified to show valid (lower) temperatures than what was the actual temperature. My friend did not spot these falsified records and therefore was considered liable for the health & safety hazard.

 

Now, the temperature probing of the fridges is in this restaurant a duty of kitchen staff. There is no written procedure about this, only the common practice in several restaurants of the same chain where my friend has worked before. Witnesses can be called to confirm this. The manager on duty receives the temperature records from the kitchen and signs them off before archiving (or deciding to act if the temperatures are not within normal range).

 

In this case, the auditor used the same thermometer they had in the kitchen, realised that some food was not kept at the right temperature and reported that the temperature records were falsified (their words). The restaurant was closed, managers suspended, later on sacked for Gross Misconduct, while the kitchen staff kept working as normal after the fridges were allegedly repaired.

 

2) The disciplinary hearing that followed had an incident. The senior manager who conducted it refused to let my friend take with him a copy of the transcript. When the dismissal letter arrived, the basis for the decision was the transcript which contained claims and admissions that my friend never made.

 

 

I would be very grateful if you can comment on this (while I await for the official Legal Aid and representation):

 

regarding 1) How would a tribunal see this case of an individual being charged with Gross Misconduct for not detecting something falsified?

 

My friend used in good faith the temperature records that were given to him, how can the company defend that his employment was untenable when the authors of the alleged falsification were not even suspended?

 

Moreover, there was a report given by the fridge technician on the day of the audit (afterwards) stating that the fridges were too close to the ovens, leading to unpredictable temperature variations. The installation of the fridges was not made by my friend, so how can any assumption regarding their performance stand in court if the company was made aware that the fridges were not working according to specification?

 

Regarding 2) Is it a fair next step if the letter of appeal simply repudiates the transcript of the hearing, on the basis that my friend did not sign or otherwise agree that it was an accurate representation of the meeting?

 

Thanks in advance for any help. I will write back as the story progresses. If the court hearing does proceed and the outcome is made public, I will be happy to reveal what restaurant I'm writing about.

 

-- Mike.

 

Hi,

 

(a) When you say that your friend was 'junior manager', was he in charge of the whole restaurant (which includes the kitchen) or the restaurant itself (the customers' area)?

 

(b) Did he, in the past, probe temperatures in that fridge and/or counter-signed the temperature record sheet?

 

© As per the minutes of that hearing, a copy should have been sent to your friend prior to the hearing itself, so any discrepancies could have been corrected.

 

(d) If your friend is in possession of his 'job description', it would be worthwhile reading it, and maybe posting its content...

---Aut viam inveniam aut faciam---

 

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Hi,

 

Hi,

 

(a) When you say that your friend was 'junior manager', was he in charge of the whole restaurant (which includes the kitchen) or the restaurant itself (the customers' area)?

 

There is no such separation, so the managers team (they work shifts) is in charge of everything. My friend was on duty the day the auditor turned up.

 

(b) Did he, in the past, probe temperatures in that fridge and/or counter-signed the temperature record sheet?

Never probed the fridges, as explained before. He regularly signed off the records that chefs wrote.

 

my original text: "the temperature probing of the fridges is in this restaurant a duty of kitchen staff. There is no written procedure about this, only the common practice in several restaurants of the same chain where my friend has worked before. Witnesses can be called to confirm this. The manager on duty receives the temperature records from the kitchen and signs them off before archiving (or deciding to act if the temperatures are not within normal range)."

 

During any work day he walks past the fridges a number of times and is able to see the fridge display showing the current temperature. Since this temperature displayed and the temperatures recorded by the chefs were within safety range, he never took any initiative.

 

© As per the minutes of that hearing, a copy should have been sent to your friend prior to the hearing itself, so any discrepancies could have been corrected.

I would agree. I think that this transcript should be repudiated. We'll do that with the letter of appeal.

 

(d) If your friend is in possession of his 'job description', it would be worthwhile reading it, and maybe posting its content...

We'll look for it, "anonymize" and post later.

 

 

Thanks.

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Hi,

 

Thanks for the detailed post.

 

Ok, we established that he has responsibility for the entire premises, including the fridges. He signs the record sheets as to agree with their content.

 

What annoys me in your friend's case is the fact that the auditor is firm in defining the set of temperatures recorded by the 'chef' as being falsified and that after ONE probing...

 

They should be extremely careful as to how they will handle the appeal as a claim for unfair dismissal and ill-founded allegations of misconduct (falsifying records) could be brought in a tribunal.

---Aut viam inveniam aut faciam---

 

***All advice given should be taken as guidance... Professional advice should always be taken before any course of action is pursued***

 

- I do not reply directly to any PMs, but you are more than welcome to enclose a link, in a PM, to your post. Thank you -

Make a contribution to this site... Help the CAG keeping on helping you for FREE.

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What you should do is:

 

(a) Request, in writing, the past 3 months worth of temperature recording, along with any audit report regarding that specific fridge.

 

(b) Check the temperature stability and if there are any fluctuations in recordings.

 

© Demonstrate that a number of factors could influence the temperature in the fridges (proximity to heat source, door(s) open for a long period of time allowing for the temperature to raise, etc...)

 

(d) Question how has the auditor been able to determine that one set of recordings to be falsified.

 

(e) Is the probe malfunctioning?

---Aut viam inveniam aut faciam---

 

***All advice given should be taken as guidance... Professional advice should always be taken before any course of action is pursued***

 

- I do not reply directly to any PMs, but you are more than welcome to enclose a link, in a PM, to your post. Thank you -

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Moreover, there was a report given by the fridge technician on the day of the audit (afterwards) stating that the fridges were too close to the ovens, leading to unpredictable temperature variations.

 

Did the technician's report include finding a specific fault with the fridge, requiring a repair or a replacement part, that indicated that the fridge was incapable of maintaining a temperature of below 8C.

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Moreover, there was a report given by the fridge technician on the day of the audit (afterwards) stating that the fridges were too close to the ovens, leading to unpredictable temperature variations.

 

Did the technician's report include finding a specific fault with the fridge, requiring a repair or a replacement part, that indicated that the fridge was incapable of maintaining a temperature of below 8C.

 

No, there's no fault at all. What the fridge technician is doing is protecting himself from a future claim under warranty - I think his reasoning is "if this fridge stops working or needs repairs, it's because you have not installed it according to our instructions".

 

From my point of view this is useful for my friend's case because it invalidates all assumptions made by the auditor about what the fridge should be doing. This is because an expert witness has already made it official that the restaurant was not using the fridge as per the manufacturer's instructions.

Since the installation of the fridges pre-dates my friend's employment there, he should not be blamed for unexpected temperature variations, and certainly for not detecting them when the chefs falsified the records that the manager uses to see if everything is OK.

 

Does my argument make sense?

Edited by nplima
dyslexia
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Was your friend accompanied by a work colleague or a union rep. at the disciplinary meeting?

How long does he have to appeal?

 

the temperature probing of the fridges is in this restaurant a duty of kitchen staff

 

...and in every other working kitchen in my experience.

It seems to me that, on the evidence so far, he just happened to be the manager on duty when the alleged misconduct was discovered.

 

Initial questions for your friend:

1. Was the auditor:

a) An local environmental health officer, b) A company employee, c) An outside contractor, d) Something else, if so what?

 

2. Does your friend have a complete copy of the auditor's report?

 

3. What is the level of food safety training of the chefs/kitchen staff?

(Food Safety Level 2 is fairly industry standard.)

 

4. How many fridges are involved in the 'falsification' issue?

 

5. The Fridge temperature record forms:

a) What period does each form cover? A day, a week?

b) How many times per day are the fridge temperatures recorded?

c) How often are the completed forms presented to/collected by the shift manager?

 

6. What is the job title of the person/s tasked with actually taking and recording the Fridge temperatures?

 

7. Is this person the most senior member of the kitchen staff?

 

8. Other than checking and retaining the completed forms and the actions to take when the forms show +8C fridge temperatures or a fault is reported; what does the company manual/handbook/policy state about the shift manager's responsibilities regarding fridge temperature control?

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Hi,

 

Was your friend accompanied by a work colleague or a union rep. at the disciplinary meeting?

How long does he have to appeal?

By a colleague.

The appeal is due next week. The Legal aid people said they would send sample letters for him to use.

 

[...]Initial questions for your friend:

1. Was the auditor:

a) An local environmental health officer, b) A company employee, c) An outside contractor, d) Something else, if so what?

b) , someone from an internal quality assurance department.

 

2. Does your friend have a complete copy of the auditor's report?

yes.

 

3. What is the level of food safety training of the chefs/kitchen staff?

(Food Safety Level 2 is fairly industry standard.)

The food safety training level 2 was given, my friend passed, some of the kitchen staff has not.

 

4. How many fridges are involved in the 'falsification' issue?

10.

5. The Fridge temperature record forms:

a) What period does each form cover? A day, a week?

b) How many times per day are the fridge temperatures recorded?

c) How often are the completed forms presented to/collected by the shift manager?

5a) each form is 1 day

b) 3

c) there is no exact procedure for this, the common practice is that the last check of the day is followed by its signing off by the manager on duty.

 

6. What is the job title of the person/s tasked with actually taking and recording the Fridge temperatures?

sorry, can't disclose the exact job title, as it is quite specific to the type of restaurant and I don't want to identify them for the time being.

7. Is this person the most senior member of the kitchen staff?

no, it is anyone who is on kitchen duty.

8. Other than checking and retaining the completed forms and the actions to take when the forms show +8C fridge temperatures or a fault is reported; what does the company manual/handbook/policy state about the shift manager's responsibilities regarding fridge temperature control?

As soon as I get the copy of that manual I will come back to the forum.

 

 

thanks.

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How many times had the fridge temperatures been recorded on the daily form when the auditor realised that some food was not kept at the right temperature?

Had your friend already signed this form?

I understand that you don't wish to post any potentially identifying information, but would it be accurate to say that the fridge temperatures in question were not taken and recorded by the most senior member of the kitchen staff present on that day?

Had the person who took and recorded the fridge temperatures passed their Level 2?

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  • 3 weeks later...

Hi All,

 

A brief update to this story:

- We have asked a number of different restaurant managers about the written procedures and nobody was able to come up with one for temperature probing on the restaurant fridges of this company. We could gather half a dozen managers from the same business unit (area) who would testify that they never probe food, as they were not trained or instructed to do so.

- The safety manual I referred to before does not specify anything about probing fridges.

- My friend's training schedule does not specify the kitchen operations that were part of the training activities, which should be proof enough that he was not trained or instructed to probe food.

- The Comunity Legal Advice company (DAWN) confirmed in their legal advice that our recommended course of action is to challenge how reasonable it is for a restaurant to dismiss the managers as a response to the specific food safety issue that was uncovered by the audit.

- While the food and safety issue is a sufficient reason for sacking someone, we'll challenge for the specific case and conduct of the company when they chose to:

a) not discipline the kitchen staff

b) ignore the fridge technician's report

c) leave the restaurant ventilation and fridges unchanged

d) leave procedures unchanged for the new restaurant manager

This should lead the Employment Tribunal to question what was the food safety benefit for the restaurant and consumers as a result of changing the management team.

 

- the letter of appeal was received at the offices of the restaurant company and we have given them more than one week to reply. We have seen no correspondence from them nor any reply to voicemail or email.

- we learned from other restaurant staff that the kitchen staff may have been called to disciplinary hearing, precisely one week following the receipt of the appeal letter. Two wrongs trying to make a right, perhaps?

 

As per the recommended legal procedure we will wait for the response from the company and then file our claim to the Employment Tribunal. This will trigger a response from the ACAS mediation service, the last step before having to go to the tribunal.

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Yes and yes, somewhat.

I would expect them to prefer solving the dispute privately and avoid public exposure of their "solution" for the food safety issue.

Just what I was going to say. Food retailers are very wary of any publicity in these situations

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  • 2 weeks later...

Hi All,

 

 

The appeal hearing took place and the arguments on both sides were presented so that the director of the company can decide to uphold or overturn the decision to sack my friend.

The arguments presented by the restaurant are the following:

 

1) cleanliness: they interpreted the audit report as presenting several issues with cleanliness which support the initial view that this needed considerable improvement. In my view there is a considerable difference between the views of the auditor and the views of the person making the disciplinary decision and there is room for interpretation, which may lead to a complicated day in court.

 

2) the infamous fridges: the notion that the installation of the fridges was incorrect is slowing sinking in. I believe that for the first time the logic of their accusation is being properly challenged. ie.: if the fridges are not working up to standards, do they intend to sack the management team every time they get an illegal reading, or do they actually intend to improve the food safety in that place?

 

Overall, their stance was very careful and they clearly avoided doing a lot of talking. In about 1 week there should be a final response from the company. I think that a trip to the employment tribunal is in the horizon.

 

Mike

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are we missing the point on this

 

you say this is part of a national chain

 

does the manager and kitchen staff have health and hygene cirtificates and were trained in food prep and storage

and were these certificates on display

 

many years ago i was a chef de partie

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  • 4 weeks later...

Hi All,

 

 

The appeal process has been completed with no agreement between the parties. Therefore a claim has been received and accepted by the Employment Tribunal.

Since it was found during the disciplinary procedures that the issue with the fridge-oven proximity was known by different restaurant staff that had worked there before my friend did, the claim was made to include a Disclosure in the Public Interest.

The reasoning for this is that based on the witnesses and the fridge technician report, there is reason to believe that despite the change of managers, the food risk is still there by choice of the restaurant company. The health & safety people in the local council are expected to visit the restaurant and investigate. If they find that there are changes to be made to the layout of the restaurant, I believe that this reinforces my friend's claim that replacing the managers was not a reasonable course of action when the auditor and area managers were facing the food temperature issue.

Interestingly, we have found that there is another restaurant in this same chain, under the authority of the same area manager, where a fridge repair was not undertaken by the supplier, as they decided that the warranty does not cover an installation that was too close to a source of intense heat.

 

As normal procedure when a claim is presented to the Employment Tribunal, a mediator from the ACAS has been notified and has written letters to both parties. At some point there should be some sort of invitation to talk about this dismissal again.

 

My friend was suspended in the first week of July, the letter stating that it was on full pay, pending disciplinary procedure. The decision to dismiss was made at the end of that month, with no payment due for July. The employment contract states that if someone is sacked on the grounds of gross misconduct, then there is no payment due during the suspension period. While I have doubts that this is a legal and fair conduct for an employer to have, I have no doubt that the company's communications during the suspension period were purposely evasive on this matter, reinforcing the idea that they were not acting in good faith. In due time, I hope to be allowed to expose the identity of the company and people involved.

 

Mike

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