Constructive dismissal

LegacyUser

So I'm a chef/kitchen manager in a private school cooking for 80 staff and pupils a day. I have oversight on food prep and service, as well as managing the kitchen and cleaning staff. As I am head chef I have responsibilities for health and safety and Haccp.
So my issue is that I have a kitchen porter who's cleaning standards are very bad, she hands me back kitchen equipment that's meant to be cleaned and are filthy, for example I handed her a chopping board that had raw meat on it and it came back to me supposedly clean still with raw meat on it. Now here's the crux, my boss won't let me fire the KP, despite my written complaints to her about it. So I have to keep an eagle eye out to make sure everything is spotless. Basically we're on a collision course for someone to get sick.
The legal ramifications of this is that I am criminally liable for prosecution should this arise not to mention if we get a Environmental Health officer visit.
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Eoin

goingquiet, I have removed the part asking if you have a case, as that question is specifically not allowed here. Maybe there's other useful suggestions you may get here, so I'll leave the rest of the post here.

Mrs OBumble

OP, you can't just fire them (at least not if they've been there a year).

What have you done to get their performance to improve?

LegacyUser

It's not the KP that I'm worried about. It's my boss' inaction about making disciplinary action. It's putting me in a position where I'm criminally liable should a food poisoning incident happen

blindsider

OP - as above, you can't just fire someone - esp. if they're there more than 1 yr.

Read this:http://employmentrightsireland.com/wp-content/uploads/2014/05/5GrievanceDisciplinary.pdf

I would talk to HR (or the person responsible for it) and agree a plan of action.

Has the person been properly trained - is this documented?

If yes, I would re-train her - and impress upon her that minimum standards must be met.

If there's no improvement, ask your boss to transfer her elsewhere. Again, document this.

As a last resort, issue a verbal warning. Get HR involved in this.

Hopefully, the situation will resolve itself from there - otherwise HR need to take the lead.

As for constructive dismissal - absolutely no way. This is a local issue and should be treated as such - in no way does it begin to enter the realm of CD.

You and your boss disagree on how to deal with an under-performing employee - you need to agree a process for this - it will possibly happen again.

Mrs OBumble

OP, it's very unusual for an individual to be criminally liable, especially in a non-professional occupation. Usually the liability rests with the employer.

I'm not saying that you're not (I don't know the law her), but you might be thinking about this the wrong way.

Your first responsibility is to get the KP to improve. By not doing so, you're actually leaving yourself open to accusations of not managing staff correctly.

L.Jenkins

Could you not assign them a position, that would reduce your risk?

Eoin

I'm not sure if the OP meant the constructive dismissal would apply to him/her or the porter that's causing the problems. If it applies to the OP, then the onus is on him/her to prove in court that every avenue was exhausted before s/he felt there was no other choice to resign. This is the opposite to unfair dismissal where it's assumed that the employer is in the wrong unless they prove that it was justified to fire the employee.

Anyway, as others have said, you need to get the porter's line manager to start using formal disciplinary procedures. If you're not her line manager, and don't have training in how to manage this procedure then tread carefully. The labour courts are full of successful cases where people got fired for very good reasons, but the correct procedures were not followed.

Johnwayne98

Did you go down the disciplinary route,verbal warnings, written warnings? Etc

Vego

If the kp is handing you back raw meat on a supposedly clean chopping board after you have continually warned them their standard of work is poor surely its grounds for gross misconduct ...its a serious breech of health and safety rules putting the consumer in harms way of food poisoning via cross contamination ......I would even say if you do nothing knowing this would bring you into question

I am assuming that you have given your staff, food safety training and continual training that they have signed off on