RP943/2013, MN700/2013, UD1423/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                          CASE NO.

John Mannion

 - claimant                                                                                                                RP943/2013

                                                                                                                                   MN700/2013

                                                                                                                                    UD1423/2013                                       

against

Dunmore Coal Limited T/A Martyns Fuels

- respondent

under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms. E.  Kearney BL

Members:     Mr. W.  O'Carroll

                     Ms H.  Murphy

heard this claim at Galway on 27th November 2014

                          and 2nd February 2015

Representation:

_______________

Claimant(s) :           Mr Alan Ledwith BL instructed by Ms Breege McCaffrey, D.M. O'Connor  

                                & Co. Solicitors, Cross Street, Galway

Respondent(s) :       Mr Patrick Higgins, Keane Solrs, Hardiman House, Eyre Square,

                                Galway

The claim under the Redundancy Payments Acts 1967 to 2007 was withdrawn by the claimant’s representative at the commencement of the hearing.

Summary of Case

The Tribunal heard evidence from the Managing Director and the Manager of the respondent’s business. The respondent operates as a coal and gas delivery company and the claimant was employed as a driver on the gas delivery truck from 1999. He was the sole driver on the company’s only gas truck. He worked flexible hours as his working week varied depending on demand from customers.

The Tribunal heard evidence that issues arose between the claimant and the company concerning the claimant smoking while driving the delivery truck and making deliveries of gas. On 16 December 2011 the Health and Safety Authority (HSA) wrote to the respondent company seeking responses to allegations that the driver of the gas truck was smoking while driving the vehicle and carrying an unsecured load of gas cylinders. The company replied to this allegation confirming that the driver of the vehicle (the claimant) had to brake suddenly resulting in bottles falling. The company also confirmed that a letter in writing was issued to the claimant regarding his smoking.

The Tribunal heard evidence that the claimant was issued with a written warning for smoking while driving the vehicle. In that regard the manager gave evidence that he issued numerous verbal warnings to the claimant as he continued smoking while carrying out his duties.

The Tribunal heard further evidence that the claimant was issued with a 2^nd written warning on 22 May 2012. This warning was as a result of the claimant making deliveries of gas to customers without obtaining signatures or payment for the gas deliveries made and for smoking while delivering gas. Due to a downturn in business the claimant was placed on a three day week with effect from 4 June 2013.

On 11 July 2013 the (HSA) again wrote to the company stating that they had received a complaint that one of the drivers had been observed smoking in the cab of the truck while delivering gas and seeking a response to the allegation. The claimant was informed of the allegation and a decision was taken to dismiss the claimant. The claimant had received numerous warnings regarding smoking and accordingly the company gave no consideration to any other sanction other than dismissal. The company wrote to the (HSA) by way of letter dated 30 October 2013 confirming inter alia that the driver in question is no longer with the company due to breaches of safety and company policies.

The company accepted that the claimant was never provided with a written contract of employment and did not have any written disciplinary procedures in place. There is no policy in place as to the length/duration of any warning issued.

Claimant’s Case

The claimant commenced working for the respondent in 1999. He gave evidence that he had an unblemished record until in or around December 2011 when issues arose concerning him smoking while driving the lorry. He accepted that he smoked while driving the vehicle and accepted that he had been provided with training in relation to safety procedures. In that regard he had attended such a training course in 2010.

He gave evidence that he continued to smoke while driving the lorry and received a written warning for this behaviour in May 2012. A copy of this written warning which was signed by both parties was opened to the Tribunal. This warning stated inter alia that as the claimant is on a second written warning for smoking while delivering gas, smoking is to cease immediately while at work. Any more breaches of these conditions will lead to the claimant’s immediate dismissal.  The claimant continued working for the respondent but following another complaint by the HSA in June 2013 concerning his smoking which he did not dispute he was dismissed from his employment.

Counsel for the respondent opened SI 146/2000 to the Tribunal and drew attention to clause 14 of the code of practice which states that warnings should be removed from an employee’s record after a specified period and the employee advised accordingly. It was submitted that no such period was specified on the written warning given to the claimant on 22 May 2012 and accordingly the respondent was in breach of the code of practice.

Determination

The Tribunal carefully considered the evidence adduced by the parties. The Tribunal unanimously determine that the dismissal of the claimant was fair in all circumstances taking into account the illegal act that the claimant engaged in on a continual basis.

The respondent employer had to bear the consequence of two HSA investigations into the claimant’s smoking while driving a gas delivery vehicle. The effect of the final written warning was to highlight to the claimant that he was on the brink of being dismissed. It could not have been clearer. The Tribunal finds that the sanction of dismissal was proportionate in all the circumstances and argument raised in relation to the final written warning not having a time limit was not a fundamental enough breach of process. Taking all the factual circumstances into account the Tribunal deems the dismissal fair.

Therefore the Tribunal dismisses the claims under the Unfair Dismissals Act 1977 to 2007 and the Minimum Notice and Terms of Employment Acts 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)