Nestle unfairly sacked dad from his £30,000-a-year job over ‘a bit of banter’

A Nestle worker was sacked from his GBP30k-a-year job for breaking the factor’y’s strict rules by placing a pair of ear defenders on a colleague’s head. “Joker” Kirk Fleming was caught on CCTV pulling the prank during the height of the first Covid wave last May. An email, sent just days earlier, warned staff at the Fawdon factory that they could be sacked for flouting rules, which included social distancing and not going too close to a forklift truck.

:Northumberland teacher fired after telling Ofsted bad kids ‘hidden away’ wins GBP50,000 payout However after eight years of service he was sacked, even though colleagues who had stolen food – and even fallen asleep at the wheel of a forklift – had kept their roles. Now the 32-year-old, who was a developed operator at the Fawdon site, is set for a payout from the confectionery giant after a Newcastle tribunal ruled he’d been unfairly dismissed.

Nestle said it was reviewing the case. The incident which lead to the dismissal occurred last May 18. Mr Fleming accepted he had been “taking the mick” out of two colleagues who looked alike, claiming the ear defenders would have made the resemblance even more striking.

“As a result, the claimant decided he would approach one of his colleagues who was driving his forklift truck and attempt to place ear defenders upon him,” states a newly published report of the March tribunal. “It can be seen on the footage the claimant approaches his colleague in an attempt to put ear defenders on his head. He fails; he approaches him a second time and succeeds.

The colleague knocks them off his head, and then he stops his forklift truck to retrieve them from the floor.” He was hauled before bosses for what the tribunal heard was “clearly ill-advised and unsafe behaviour”, claiming he’d flouted multiple rules by getting too close to both the truck and the driver. “He accepted he was having a bit of banter because everybody’s mood was down due to Covid -19, and he was trying to lift their spirits,” adds the report.

“He apologised for his behaviour, saying it was a stupid mistake. He was under pressure because his wife had lost her job. He also said he had been with the company for eight years and had never been in any bother before.”

However, the dad-of-three was suspended that day before management later dismissed him at a disciplinary meeting for his “totally unacceptable” actions, ruling he’d committed gross misconduct. But it later emerged that five other staff had kept their jobs despite allegations which included one worker falling asleep behind the wheel of a forklift truck. One caused an accident which resulted in him losing a finger – while another had stolen a colleague’s chicken.

Mr Fleming, who the reports states is a person of colour, also pursued a racial discrimination claim against Nestle after pointing out all five men who had kept their jobs were white. That was dismissed. However, arguing the dismissal was unfair, he argued that he’d been the victim of “Inconsistent treatment” while compared to those other five.

And the panel ruled in his favour with the report adding: “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.” A Nestle spokesperson added: “We acknowledge the findings of the tribunal, which ruled that there was no discrimination, and we are reviewing the case internally.” Recently, the firm announced plans to slash 475 jobs by closing the Fawdon factory in a move described as a “hammer blow” to the local area.

The site, which was once the Rowntree’s plant, will close the end of 2023 ending over 60 years of confectionery manufacturing in the area.

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