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Tuesday, August 3, 2021
Unfair dismissal finding for Nestle worker sacked over “a bit of banter” that resulted in breach of social distancing rules.
In May 2020 Developed Operator Kirk Fleming decided he’d cheer up colleagues by making a joke about two forklift drivers’ likeness to each other and in attempt to prove his point he physically attempted to place a pair of ear defenders on one.
CCTV footage clearly showed the prank and the proximity he had to the driver he tried to get to wear the headwear.
Nestle management immediately suspended Mr Fleming then the following day sacked him, siting gross misconduct and breaching the companies recently published social distancing rules. The rules specifically stated workers needed to retain a distance and not be near equipment not operated by them, including fork-lift trucks. A reminder had been circulated by e-mail only days before stating that any breaking of the rules would result in immediate dismissal.
Whilst accepting his acts were far from sensible Mr Fleming did suggest he was trying to lighten a very sombre mood on the factory floor, he also said he’s behaviour was probably erratic due to his anxiety over his wife who was recently made redundant.
Mr Fleming was claiming unfair dismissal and racial discrimination.
Newcastle Tribunal found no evidence of racial discrimination however they did support the unfair dismissal due to the inconsistency of treatment metered out to colleagues of Mr Fleming, five individuals who all retained their jobs despite falling asleep behind the wheel of a fork-lift, stealing a fellow workers grocery (a chicken), another had lost a finger whilst not following guidelines in operating machinery.
This lack of consistency proved to be decisive for the Tribunal who accepted Mr Fleming acted recklessly but given his unblemished 8-year tenure at Nestle the strident response by management was found to be too heavy handed.
In referencing the five cases of colleague misbehaviour the panel stated.
“The reasons for dismissing the claimant also applied to some or all of the comparators. All were disciplined for misuse of equipment. All were disciplined for actual injury or the potential to cause serious injury to themselves or others. All were deliberate acts.”
In reality if the other five had been dealt a similar hand by Nestle for their misdemeanours it would be hard to defend Mr Flemings acts but as the evidence was clear this proved to be something of an overreaction.
Nestle are reviewing the decision albeit were swift to report the tribunals failure to find in favour of the racial discrimination claim.
Written by Robert Gibson, Senior Consultant - Employment Law
Robert is a Senior Consultant at Samuel Phillips and specialises in employment and business matters. He advises in relation to employment and shareholder disputes, including pensions and related issues.
