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1. I am the Managing Director of Pantry Franchise Ireland Limited ("the company") which trades under the name of McDonald's Restaurants.
2. I was first granted the franchise of McDonald's Restaurants In Dublin in 1977 and the first restaurant opened on 9th May 1977 in Grafton Street, Dublin. The second restaurant opened on 23rd January 1979 in Upper O'Connell Street, Dublin. At present I am responsible for 12 McDonald's restaurants in the Dublin area.
3. I have read the allegations made by the Defendants, Helen Steel and David Morris, in proceedings brought by McDonald's Corporation and McDonald's Restaurants Limited and I refer to the allegations made by them in the following documents:-
a. Reply to a Request for Further am Better Particulars of the Particulars of Justification and Fair Comment served on 31st July 1992, which I shall refer to as FBP 1 and;
b. Further and Better Particulars of the Further and Better Particulars of Justification and Fair Comment pursuant to a Request dated 3rd November 1992 and dated 11th March 1993 which I shall refer to FBP 2.
4. As I have been Managing Director of the company since its inception I have direct knowledge of the allegations made in these pleadings.
Trade Dispute in Ireland
5. This allegation is referred to in FBP 1 at page 1 and FBP 2 at page 9, point (g).
6. Shortly after the company opened its first restaurant in May 1977 I received a letter from the Irish Transport and General Workers Union ("ITGWU") Branch 4, who wished to discuss with me the terms and conditions of my employees. I did not respond to this letter as none of my staff had expressed any dissatisfaction about their work or the conditions of their employment.
7. It was after the opening of the second restaurant in January 1979 in upper O'Connell street that I received a further approach from the ITGWU to which I did not respond because, as before, there was no impetus from the staff to deem such negotiations necessary. 8. On 8th March 1979 I received a second letter from Mr. Bourke of the ITGWU giving me one week's notice of intention to strike outside out restaurant in O'Connell street.
Picketing began on 16th March 1979 and lasted until the dispute was resolved in September that year. After several unsuccessful telephone calls to Mr. Bourke, I replied by letter to him asking for further details regarding who their members were and what conditions they wished to discuss. I did not receive a reply to my letter.
9. Seven of the company's 202 employees began picketing the O'Connoll Street location or 16 March. From the beginning, the picketing was disorderly, violent and apparently uncontrolled. Passers by were harassed and threatened by the pickets, management employees were assaulted, employees that continued to work were repeatedly called 'scabs' and other profane words. Some employees were even visited at home by the pickets where they were threatened, intimidated and coerced. On one occasion 4-5 masked pickets entered the restaurant through the rear of the premises. They broke and damaged equipment; they intimidated employees; pushed the manager against the wall threatening him with violence and then they left.
10. The following week without notice the pickets also appeared at the Grafton Street location, although none of the employees of that store participated in the picketing then. The union did not notify me that there was any employee support for the union at the Grafton Street store and I was also not notified that the union intended to strike at that location.
11. At this time two offers were made to John Bourke through the Federated Union of Employers (FUE) to meet and discuss the issues, but these offers were declined.
12 . At this same time, many individuals who had never been employees of the Pantry Franchise constantly joined the pickets at the two locations. Several major incidents occurred where pickets assaulted customers, employees and staff. In fact, one union official was arrested for assault. This irresponsible, and violent behaviour led Pantry Franchise to seek and obtain an Injunction from the High Court on 3rd April 1979 completely banning picketing at both locations. On 9th April the union was permitted three peaceful pickets between the hours of 8 a.m. and 10 p.m.
13. Despite the High Court's Order, the pickets continued to be violent, unruly and vicious. Employees working were continually subjected to verbal and physical harassment by the pickets.
14. Numerous letters and telephone calls were placed to the ITGWU's solicitors to inform them of the violations and to solicit compliance with the Order. I felt that either the officials of the ITGWU were unaware of the activity, chose to ignore the problem or were unable to control the situation. For example, I received a letter from the ITGWU's solicitor claiming that his client had complied with the Court Order and the ITGWU had no connection with a mass demonstration. However, at the same time a letter was posted in Liberty Hall and other locations around Dublin, signed by James Macken, a Defendant in the High Court case, an admitted member of the ITGWU and a frequent picket of Pantry Franchise, openly advocated defiance of the High Court Injunction. From the time the picketing began on 16th March, the ITGWU had also engaged in a campaign of rumours, half-truths, innuendoes and intimidation. Pickets repeatedly shouted that thirty workers were sacked for joining the union, when in fact no employees were sacked and we continually informed the pickets that jobs were still available for them our restaurants. Six of our staff who picketed the restaurant returned to work. Rumours were circulated that we illegally employed minors and aliens, yet when we were inspected by the Ministry of Labour no violations of the law were found. In about July 1979 I met with Mr. Michael Mullen, President of the ITGWU at a Dublin hotel to discuss a way to resolve the dispute. During the meeting I informed Mr. Mullen, and he agreed, that until such time as James Macken was removed from an active picket position we could not entertain any way to resolve the dispute in view of Mr. Macken's continued aggression toward customers and staff.
15. Suppliers of goods to the company who had no dispute with us, were also disrupted. St. Vincent's Hospital was threatened with Industrial action if an independent cleaning Company that had a contract with the hospital did not stop cleaning Pantry Franchise's locations. A bakery was threatened with loss of supplies if it did not stop supplying goods to Pantry Franchise, when in effect it had not sold as much as one slice of breed to Pantry Franchise. Another unrelated distributor of industrial equipment in Dublin was threatened with industrial action if he sold a piece of equipment to Pantry Franchise resulting in the loss of a substantial sale to his particular supplier.
16 . The dispute was metered voluntarily by McDonald's and the union, on to the Labour Court with a view to resolving the dispute. On 5th September 1979 the Court gave its recommendations. These recommendations are set out at appendix 1. Essentially the Court recommended that the company should agree to recognise the ITGWU for negotiation purposes for those employees who were union members only. Both I and the company accepted these recommendation and on 7th September 1979 1 met informally with the Union during which I agreed that if the union stopped picketing for a week; stopped blocking all goods and supplies and allowed goods to be delivered without hindrance, we would be willing to take back any existing picketers who had worked at McDonald's and who wished to come back to work.
However the only person I was not prepared to re-employ was James Macken who had been violent and abusive while picketing the restaurants, and who had, in fact, been expelled from the ITGWU for conduct unbecoming that of member and inimical to the interests of other members. The ITGWU accepted my decision with regard to James Macken and at no time pressed me to re-employ him.
17 . Following this meeting two or three further telephone calls ensued between the company and the union with regard to the arrangements for ceasing the picket, ensuring supplies were delivered, and the resumption of work by those staff who had been on strike. The last telephone conversation I had with the union was on 21st September 1979.
18. My meeting with the ITGWU on 10th September 1979 was the only occasion on which I met with them and since that date I have never been requested by the union or any of my staff to negotiate with the union on their behalf. In other words since September 1979 none of my staff have ever requested union representation.
19. The allegation in FBP 2 at paragraph (g) page 9 correctly states the dates of the strike by the ITGWU. McDonald's not only attempted to obtain an injunction to halt picketing but were successful in obtaining a complete ban picketing on 3rd April 1979 which was later varied to allow three peaceful pickets between the hours of 8 a.m. and 10 p.m. It is also correct to say that the Labour Board to whom the company went voluntarily recommended that McDonald's negotiate with the trade union but only on behalf of union members, who numbered 14 out of 202 or 7% of the staff at the time which recommendation the Any accepted. It is also correct to say that James Macken area refused his job back, the reason being that he had been violent and abusive during the course of the strike and such behaviour cannot be tolerated of a McDonald's employee.
20. With regard to Anne Holmes, she was re-employed on the same terms and conditions with slightly lower pay. However, as the position of lobby hostess no longer existed, which position she had held having been originally employed as crew, she was re-engaged as a crew member. She left the company about two months later.
21. With regard to Tom Caulfield, he was re-engaged as before as a Maintenance person working in the two restaurants on the same terms and conditions.
22. In 1980 Mr. Macken brought a complaint against the company under the Unfair Dismissals Act and the Minimum Notice and Terms of Employment Act. Mr. Macken claimed that he had been dismissed under Section 6(ii)(a) of the Unfair Dismissals Act 1977 on grounds of his union membership or activities.
23. The Tribunal found that Mr. Macken was not dismissed because of his Union activities and therefore the claim failed.
24. Under the Minimum Notice and Terms of Employment Act 1973 the Tribunal found that Mr. Macken was dismissed without notice and entitled to one week's notice.
25. The company had previously sent to Mr. Macken on 3rd October 1979 a letter advising him that the monies due to him and his P.45 were ready for collection, which letter was sent by registered post. Nothing further had been heard from Mr. Macken. The company had advised the Employment Appeals Tribunal that they were at all times prepared to pay him one week's pay in lieu of notice and his full holiday pay and invited Employment Appeals Tribunal to write to Mr. Macken notifying him that these monies would be paid if he called to our office. A copy of my letter to the Employment Appeals Tribunal is attached hereto at appendix 2.
26. It is incorrect to say that my attitude was of hostility to Trade Unions as stated in FBP 1. As I indicated in the Affidavit I swore in support of an application for an interlocutory injunction to prevent picketing outside our restaurants on 3rd April 1979 which injunction was granted, my and the company's position was that whilst we did not accept the necessity to recognise a trade union for negotiation purposes in our restaurants, all employees had a constitutional right to join a union if they so wished. My principal reason for objecting to recognise and negotiate with the union on behalf of all of my staff was that only a small minority of employees wished to be represented by the ITGWU and indeed the majority of those employees who did not wish union representation, of their own accord, signed a statement to this effect. This statement is at appendix 3.
Allegation that the Rights Commissioner ruled that two members of staff were unfairly dismissed for trade union activity in Dublin 1985.
27. This allegation is made on page 7 of FBP 1 at paragraph (h).
28. The background to this allegation is as follows. Mr. Anthony Brien was employed by the company from 7th January 1985 until 19th June 1985 when he was dismissed for persistent lateness.
29. He brought a claim against the company for unfair dismissal, the grounds being that he was dismissed because he attempted to organise and recruit employees of McDonald's Restaurants into joining this union.
30. The Unfair Dismissals Act 1977 entitles an employee to bring a claim for unfair dismissal only if he/she has one years continuous service. Mr. Brien had only been engaged by the company for six months. An exception to this one year minimum period which entitles an employee to bring a claim for unfair dismissal is if the reason for that dismissal is on grounds of maternity or trade union activity. The actual reason why Mr. Brien was dismissed was because of persistent lateness as demonstrated in his time records which have been disclosed.
31. The ITGWU represented Mr. Brien at the hearing before the Rights Commissioner who has a role similar to ACAS in the United Kingdom. McDonald's was represented by the Federated Union of Employers. The key witness of McDonald's was Mr. Trimble, who was the Manager who made the decision to dismiss Mr. Brien was not available at the hearing as he had left the company at the time and was abroad.
32. In the absence of a key witness the Rights Commissioner found that McDonald's were unable to refute the arguments on union activity and for that reason he found that the dismissal was unfair but reduced the compensation to £250 in view of the fact that his own behaviour had contributed to it.
33. The case of Mr. Connor McCann is not dissimilar.
34. Mr. McCann was employed by the company from 7th January 1985 to 29th June 1985 when he was dismissed for breach of company rules in that he had re-arranged his work schedule against the express instruction of his manager. Mr. McCann alleged that he was dismissed for trade union activity.
35. Mr. McCann, like Mr. Brien, did not have one years continuous service.
36. Again, by agreement, this matter went for investigation before the Rights Commissioner who found that because McDonald's was unable to bring a key witness to the investigation the union's arguments were not refuted and therefore he made a finding of unfair dismissal and award compensation of £600.
37. Both these sums were paid.
38. The maximum that could have been awarded by the Rights Commissioner in respect of a claim for unfair dismissal for trade union activity was IR£6656.
39. The cases of McCann and Brien were the first occasions that the company had cause to agree to go to the Rights Commissioner.
Rates of Pay - Dublin 1978 85p (Irish) per hour
40. At page 2, paragraph (b) of FBP 2 it is alleged that the sum of 85p per hour is at or near the minimum prescribed rate.
41. In 1978 the basic starting rate was 85p per hour. This sum was equal or better to the sums paid by similar establishments and indeed if it had been less we would not have been able to recruit with ease the members of staff who worked for us. It is clear from the employee handbook in publication at the time, at appendix 4, that after a 90 day probationary period each employee is evaluated and depending on their level of performance they can expect a wage rise ranging from 0p to 12p per hour, depending on their standard of performance. Every six months thereafter they are given performance reviews and considered for a further wage increase.
42. In addition, all staff were paid 1-1/2 times their normal hourly rate for time worked over 40 hours.
43. The average rate of pay for McDonald's hourly paid staff in 1979 was IR£1.04 per hour.
44. Additionally staff were paid for breaks after 4 hours of work and had the benefits of free meals.
45. Employees who worked on night work were paid a night premium which I recollect was IR£1.50.
46. There was no minimum wage in the City of Dublin in 1978 where the first two restaurants were open. There are minimum rates of pay for the Republic of Ireland but the City of Dublin is exempted.
47. The company has since expanded and now has 12 restaurants, some of which are in the Republic of Ireland as well as the City of Dublin and so throughout the restaurants run by the company we pay the same rates which Accord with the Wages Council recommendation. Currently the starting rate is IR£2.95 per hour and employees still have wage reviews after their probationary 90 day period and thereafter every six months.
Breaches of Young Persons Employment Act
48. In FBP 2 at page 4 paragraph (f) it is alleged that in or around 1979 McDonald's committed four breaches of the Young Persons Employment Act.
49. I have no recollection whatsoever of any such breaches being committed and certainly no complaint was brought by individual or authority as this would have been brought to my attention.
50. For the purposes of preparing for this statement I have reviewed my files relating to the 1979 period of which I have a distinct recollection because of the trade union dispute, and have found no reference to any such breaches if it be the case.
| date signed: |
July 12, 1994
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| status: |
Appeared in court
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exhibits: Not applicable/ available
transcripts of court appearances:
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