EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Marcin Kotaba UD43/2013
against
OFM Onsite Facilities Management Limited
Onsite Facilities Management Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Lucey
Members: Mr D. Hegarty
Mr O. Wills
heard this claim at Killarney on 13th June 2014
Representation:
Claimant:
Mr Martin Corbett, SIPTU, Liberty Hall, Dublin 1
Respondent:
H R and Business Solutions, Pier 17, Dingle Road, Tralee, Co. Kerry
Respondent’s case:
The respondent provides facility management services to various clients and the claimant was employed as a General Operative in two residential centres from 28th July 2007 until his dismissal on 17th September 2012 for gross misconduct. One of these centres caters for women and children and the other caters for men. Both centres are regarded as one unit by the respondent.
Alcohol is prohibited in these centres and residents are prohibited from returning to the premises while intoxicated. There is a policy of zero tolerance for alcohol and part of the claimant’s job was to enforce this policy and confiscate alcohol from residents when discovered. There were notices posted on notice boards at the centres and the claimant received training in regard to the policies and regulations of the respondent.
An investigation was carried out into an allegation that the claimant had consumed alcohol in a resident’s room which had been given to him by the resident. During the investigation meeting with the claimant on 18th July 2012 he freely admitted that he had accepted and consumed a beer in a resident’s room while watching a football match. A disciplinary meeting was held on 18th Sep 2012 and a decision was taken to dismiss the claimant. The claimant appealed this decision. His appeal was heard on 10th October 2012 and the decision to dismiss was upheld. The claimant was represented throughout the disciplinary process by a trade union representative.
The original decision maker and the appeal decision maker both told the Tribunal that they had no option but to dismiss the claimant on the basis that his breach of policy was gross misconduct.
Claimant’s case:
The claimant did not dispute that he had a small beer with a male resident in the resident’s room while watching a football game. However he told the Tribunal that he was unaware of a zero tolerance policy in respect of alcohol in the centre. The claimant had signed off on policy documents but had not actually read them. He also told the Tribunal that there was no notice about the prohibition of alcohol on the notice board in the male resident’s centre.
It was the claimant himself who told the chef that he had consumed a beer with a resident in the resident’s room and it was the chef who reported this to management. Throughout the disciplinary process the claimant never denied having a beer but believed that dismissal was too severe a sanction for this breach of policy.
Determination:
Having carefully considered all the evidence presented by both parties at the hearing, the evidence of the respondent herein regarding the zero tolerance policy in respect of clients bringing alcohol onto the premises and the duty to confiscate the alcohol being part of the claimants duties in such a centre is paramount [particularly where clients may be vulnerable] is accepted and accordingly the claimant’s claim for Unfair Dismissal fails. The Claimant readily admitted consumption of alcohol on the premises and had signed of on the policy documents in respect of such prohibition.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)