Two former employees of the sweet manufacturer Ferrero were held by the Employment Appeals Tribunal to have been unfairly dismissed after their employment was terminated for failing to comply with the recipe production procedure for Tic Tacs.

Mr Cotter and Ms Ryan-O’Connor, both general operatives in Ferrero’s Cork factory for over ten years, were dismissed after they loaded material manually into a tank instead of using lifting equipment, an action which Ferrero claimed distorted the recipe. Ms Ryan-O’Connor alleged that the lifting equipment was faulty and that she wanted to maintain production.

The individuals alleged that the disciplinary procedure was flawed as they had been invited to a meeting to discuss the incident but proper notice had not been given of the seriousness of the situation and, accordingly, they did not have representation with them. Both individuals also alleged that P45s were issued before their appeal of their dismissals so they felt that the appeal had been prejudged. They further argued that their dismissal was disproportionate as other employees’ misdeeds had not received a similar response and, finally, that Ferrero’s product had not been damaged in any way.

Ferrero submitted that the individuals’ actions had been a breach of trust and that it could no longer have confidence in their integrity. Given the potential negative results of the individuals’ actions, it submitted that dismissal was proportionate and that the procedure effecting the dismissal was fair.  

The Tribunal found that, given the nature of Ferrero’s business, it had a right to regard non-compliance with its recipe and manufacturing process as unacceptable conduct. It stated that the employees should have obeyed instructions rather than improvise. However, the Tribunal deemed “the punishment not to fit the crime”. The Tribunal found that Ferrero’s procedure was flawed and that the culture of the business was such that adherence to a high degree of compliance was not the norm.

In making its decision, the Tribunal took into account the individuals’ substantial contribution to the events that led to their dismissal and awarded €19,000 to Mr Cotter and €10,000 to Ms Ryan-O’Connor.

This case highlights that in all instances fair procedures must be followed prior to dismissing an employee and that employers should consider on a case-by-case basis whether the disciplinary sanction being considered is proportionate to the misconduct at issue.

Contributed by Catherine O’Flynn and Ciara Ruane.