Allegations that safety and hygiene procedures were "neglected" at a Dawn Meats plant in the winter of 2020 because of pandemic pressures are not a matter of such sensitivity that a hearing had to be held behind closed doors, a solicitor has told the Workplace Relations Commission.
"It would not be a matter of national security if someone finds out that burgers fall on the floor," the solicitor said yesterday.
The company has called the claims false and defamatory, calculated to damage the company - and they have already been denied in sworn testimony by a former health and safety manager who gave evidence last year.
However, despite telling the parties to the case last week that it would hear the rest of a complaint under the Employment Equality Act 1998 by ex-employee Abdulah Al Jaber against Dawn Meats Ltd in private, the tribunal changed tack and admitted the press yesterday.
Sitting at Waterford Courthouse, adjudicator Gaye Cunningham said there had been "very late correspondence" between the WRC and the parties on the conduct of the hearing and that she wanted to "explain what my thinking was".
"Reviewing the situation and my notes - there is reference, and quite a lot of reference to protected disclosures. The sensitivity of such an issue the WRC has recognised as one of the reasons one should hold a hearing in private is because an individual has made a protected disclosure in confidence," she said.
"My approach all the time has been to ensure we're focused on the Employment Equality Act. For that reason and solely because there is an issue of protected disclosure, I wrote to the representatives to say the hearing, or part thereof, should be in private," she added.
Ibec employer relations executive Robin McKenna, for Dawn Meats, told Ms Cunningham that he "understood that it would be held in private based on your correspondence" and that the adjudicator's next letter setting out the new position had only reached him 20 minutes before yesterday's hearing opened in public.
Solicitor Gerard Cullen, appearing for the complainant, said the adjudicator had made her decision on privacy "more than a year ago" at a hearing in late November 2022, when the meatpacking giant's motion seeking a direction compelling the press not to report the allegations was rejected.
Counsel then quoted a letter sent by the adjudicator stating: "Due to the sensitivities of this case and the allegations made public in the press, I have decided that the upcoming hearing will be otherwise than in public."
He said it was a "volte-face, an about-turn" from the adjudicator's prior decision - and claimed that it had been "overturned not in public, but in private, using correspondence from Mr McKenna".
Mr Cullen said the case law set a high bar for holding a hearing otherwise than in public referring to "family circumstances, morals, public order and national security in a democratic society" as some of the exceptions permitted.
"It would not be a matter of national security if someone finds out that burgers fall on the floor," Mr Cullen submitted. "I say there is no adequate reason by simply quoting "sensitivities" in some general fashion," he said.
However, Mr McKenna said the introduction of a protected disclosure made by Mr Al Jaber to the WRC proceedings was "an attempt by the complainant to defame and embarrass the respondent" and had the potential to cause Dawn Meats "great damage".
He said a "risk to the employee or employer" was specifically set out in the WRC's procedures and that the tribunal's enabling legislation afforded the adjudicator full discretion to decide on privacy.
Adjudicating officer Ms Cunningham said that she did not want to have any impact on any investigations by another public body. "My focus really needs to be: was he discriminatorily dismissed?" she added.
At a hearing last November, Mr Al Jaber said that hygiene procedures were neglected at his workplace during the winter of 2020, when he also claims he suffered a back injury because of carrying heavy containers of meat.
"Sometimes when the line was busy the burgers go down on the floor," he said last year, later adding: "If the meat fell, even in front of the manager, you’d pick it up and put it back."
The meat giant branded the allegations "false and defamatory" when Mr Al Jaber testified, and denies any discrimination.
Mr Cullen had also sought an order to have the chief executive of Dawn Meats, Niall Browne, summoned before the tribunal to give evidence on any dealings the company had with the Health and Safety Authority after his client made a disclosure.
Counsel quoted correspondence from the HSA stating that it was "working with the employer to ensure legislative compliance" and said the watchdog had given him no further update in the prior 12 months.
He submitted that evidence of "what sort of work [Dawn Meats] had to do to make good the sort of conditions Mr Al Jaber has described" was required in order for the WRC to adjudicate on the question of reasonable accommodation for his client.
"The injury was sustained, my client would say, as a consequence of the working conditions, so the respondent is benefiting from its own turpitude in respect of health and safety noncompliance," Mr Cullen submitted.
Mr Cullen added that his client had been "bullied into keeping quiet", a remark Mr McKenna objected to, calling it "ridiculous" and "prejudicial to the company".
Mr McKenna said engagement between Dawn Meats and the HSA would post-date Mr Al Jaber’s complaint to the tribunal, and was therefore beyond its jurisdiction.
"With regard to the CEO, I think that’s just an attempt to embarrass the company," he said.
Ms Cunningham said: "If the company wants to give evidence on the current situation, that's their prerogative. I'm not going to compel witnesses to come along." She said had already heard relevant evidence from its health and safety officer.
"I’m not taking any evidence on burgers dropping on the floor. I'm considering the allegation of employment equality discrimination," Ms Cunningham added.
Ms Cunningham adjourned the case to a future date, yet to be confirmed by the WRC, when it is expected the company’s final witness, a training officer, will give evidence and closing submissions will be heard.
Giving evidence to the WRC through an Arabic interpreter in November 2022, Mr Al Jaber said that there was "lots of pressure on the work" at Dawn Meats in the winter of 2020 because of the Covid-19 pandemic.
"There was so much pressure [that] if some procedure was neglected, covering the meat et cetera, you'd just leave it like that," Mr Al Jaber said.
"Even the machines really weren't being cleaned. That tells you there was so much pressure on some days machines were not washed or cleaned," he added.
"Sometimes when the line was busy the burgers go down on the floor," he said.
"How often?" Mr Cullen asked his client. "Too often," Mr Al Jaber replied.
Mr McKenna said Mr Cullen was "clearly grandstanding" and said: "there’s a reporter here".
The Ibec rep called Mr Al Jaber’s allegations about the burgers "false and defamatory" and called on the adjudicator to direct the press not to publish them.
The company's former health and safety officer, Richie Phelan, said in his evidence that burgers were "absolutely not" put back on conveyors after falling to the floor.
"Everyone is aware that product we make is for human consumption," he said, adding in response to questioning from Mr Cullen that there if burgers fell off the line, the workers knew that the correct decision was to put fallen patties in a red tray for offsite disposal.
The complainant said his back had begun to give him pain as early as November 2020 as a result of lifting and carrying 25kg bags of meat in "subzero conditions" while there was "pressure" on the line and that he complained verbally to the floor manager in December about this - a claim denied by Mr Phelan.
Dawn Meats’ HR officer Nicola O'Gorman said: "We could not afford Mr Aljaber light duties so he had to go out sick. There's no role there in his position for light duties."
Mr Al Jaber "failed his probation on time and attendance", Ms O'Gorman also said.
