EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Jane Callaghan UD1689/2014
- claimant
Against
OCS One Complete Solution Limited
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr D. Peakin
Mr. J. Dorney
heard this claim at Dublin on 27th January 2016 and 16th March 2016
Representation:
_______________
Claimant: Mr Gavin Mackay, Spelman Callaghan, Solicitors, Corner House,
Main Street, Clondalkin, Dublin 22
Respondent: Mr Tiernan Doherty, IBEC, Confederation House,
84/86 Lower Baggot Street, Dublin 2
Summary of respondent’s case
The Tribunal heard evidence from (JC), facilities cleaning manager of the respondent company. He told the Tribunal that he was contacted on the night of 2 April 2014 and informed that a serious incident had occurred at a storehouse where a function was taking place resulting in the fire alarm being activated. There were 360 guests in the storehouse and 170 meals were about to served. The respondent company is responsible for the general cleaning of the storehouse building in question, where the claimant was employed as a cleaner by the respondent company.
The witness gave evidence that he conducted an investigation into the incident and interviewed the claimant on 9 April 2014 as part of that process. The claimant was afforded representation at the meeting. The witness told the Tribunal that the claimant was assigned to cleaning duties on level 2 of the building on the evening of 2 April 2014. However she admitted to accessing an executive suite on level 4 of the building along with three work colleagues. She admitted to using the suite to take a break and placing bread in the toaster in the executive suite. The bread became jammed in the toaster with the result of activating the fire alarm. He described in detail to the Tribunal that the alarm system has a pre-warning system which lasts for 2.5 minutes. This allows for identification of the particular area in the building where the alarm became activated. This system allows for the alarm system to be de-activated before it goes into full evacuation mode. He told the Tribunal that the claimant was aware of this pre-warning system and could have used her radio control to contact the control room but she did not do so. If she had done so it would have prevented the alarm becoming fully activated. He told the Tribunal that he established during his investigation that the claimant panicked and ran from the executive suite thus allowing the alarm system to become fully activated. She also stated to him that she was afraid to report the incident to management. The alarm was subsequently stopped by a manager (JR) before the building was evacuated, and the evacuation process did not actually commence. Following the conclusion of his investigation he recommended that the claimant be suspended pending further investigation. The matter then progressed to a disciplinary hearing.
(TK), Human Resources and Payroll Manager gave evidence that she conducted the disciplinary hearing on 22 April 2014. The claimant was represented by her union representative. Copies of detailed minutes of the hearing were opened to the Tribunal. She told the Tribunal that the claimant confirmed that she entered the executive suite on level 4 of the building with her colleagues to take a break. The claimant told her that she did so as she did not like taking her breaks in the cabin area (the area which was designated to be used for breaks) as it can be very untidy. The claimant confirmed that she did not have permission to access the executive suite in question. She admitted to using the toaster and was very remorseful for her actions. The witness concluded that the allegations against the claimant were proved and constituted an act of gross misconduct in accordance with the respondent’s disciplinary rules. She dismissed the claimant with immediate effect by way of letter dated 23 April 2014 and gave the claimant five working days to appeal her decision.
She gave further evidence that the claimant had 13 years’ service with the respondent and had no previous disciplinary issues. The claimant had transferred to the respondent company in accordance with TUPE regulations and earned considerably more than some other work colleagues. The witness denied that this fact had any bearing on her dismissal. Her rate of pay was irrelevant to the matter. The witness was satisfied that she acted in accordance with the company’s disciplinary procedures. There had been a breach of trust on the part of the claimant which amounted to gross misconduct. The witness gave further evidence that the process resulted in the claimant and another employee being dismissed, the third employee received a written warning, and the fourth employee failed her probationary period and left the company.
Giving evidence, the Head of Operations, (TO’B), told the Tribunal that he heard the appeal. He said the claimant admitted that she should not have been there and panicked when the alarm went off. He did not consider a lesser sanction as he was thinking potentially what could have happened if there had been a full evacuation of the building.
Under cross-examination, TO’B stated that he did not think it was relevant to discuss the matter with JC who did not have the authority to instruct the claimant. He had never witnessed staff using the rooms for breaks. In reply to the Tribunal, TO’B confirmed that there had in fact been no loss incurred as the evacuation was cancelled.
Summary of claimant’s case
The claimant told the Tribunal that she worked in the storehouse for thirteen years including a transfer under TUPE. She told the Tribunal that staff always used the offices for breaks, including breaks with Supervisors and with Managers. She was never told she could not have breaks in the offices. On the night in question, the claimant owned up to what had happened as she felt if she took the blame she would just get a ‘slap on the hands’ because of her service record. The claimant did not receive any training in relation to the alarm or evacuation procedures.
Under cross-examination, the claimant stated that two named Supervisors and one named Manager were aware that she took breaks in the Bailey Suite as she would often say to them ‘I am taking my break in the Bailey Suite’.
The claimant gave evidence of loss and efforts to mitigate her loss.
Determination
The Tribunal, having taken all the evidence into consideration, have decided that the dismissal was unfair.
The reason for this decision is that the respondent knew or ought to have known that the claimant and other staff used the Bailey Suite for the purposes of taking their break. The regulations may have prohibited the staff from using the Bailey Suite, however practice and procedure condoned by the Supervisors and or Managers had allowed them to do so. If the toast had not burned on the day there would have been no incident and consequently no dismissal.
It was reasonably foreseeable that by permitting the staff to use the facility that toast could burn, therefore to chastise the claimant for this was unfair.
The Tribunal also noted that the toaster in the cabin outside the premises was not working and that rats were known to be in that area, which would diminish the acceptability of the use of the cabin.
The Tribunal determines that the most appropriate remedy in this case is compensation and taking account of the claimant’s evidence regarding seeking work, the Tribunal determine that compensation should be assessed in the sum of €25,000.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)