EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1643/2014
CLAIM OF:
Mark Whelan
-Claimant
against
Edward Flahavan & Sons Limited
-Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr. J. Browne
Ms S. Kelly
heard this claim at Waterford on 27th January 2016 and 19th May 2016
Representation:
Claimant: Mr. D. Walsh BL instructed by Mr. Sean Ormonde, Sean Ormonde & Co, Solicitors, Suite 19, The Atrium, Canada Street, Waterford
Respondent: Mr. Conor Hannaway, Shrc Limited, Heather House, Heather Road, Sandyford Business Park, Dublin 18
Background:
The Respondent company is milling company. The Claimant worked there since January 2006 when he began as a packer and worked up to senior miller. He was dismissed in June 2014 and claims his dismissal was unfair. The Respondent disputed that the dismissal was unfair.
The Respondent’s Case:
The Tribunal heard evidence from JC who is the operations director in the Respondent company. He has 34 years’ service with the Company which is a family owned company of seven generations and is over 200 years old. The company’s main market is in Ireland but they export to 14 other locations in the UK and the USA. The quality of their product is of the utmost importance as is health, safety and hygiene.
The Claimant’s role as miller was to prepare the oats for processing. The Claimant had received induction training including modules in health and safety. Every two years the employees receive food safety training.
JC told the Tribunal the company had a designated smoking area at the rear of the plant and he explained that the area was not far from the Claimant’s area of work. However, the Claimant’s work area did cover four floors. When the Claimant was on the ground floor he was 100 meters from the designated smoking area.
The company worked hard to achieve a global food safety standard: FSC 22000. This involved an inspection process whereby the plant was inspected, meetings were held with employees to check if they had an understanding of the standards required and training would be provided.
JC explained that the Respondent company was awaiting two inspection audits. JC himself did a walk-around in advance of the audits. Whilst walking around the mill he found evidence of smoking, consumption of food and soft drinks; visible also was evidence of an extensive level of smoking in an enclosed area around door from lift shaft. JC had a concern of a risk from fire as he saw evidence of scorching on discarded cigarette boxes. There were many empty cigarette boxes which were of a particular brand. The witness described the annex area of approximately 5 ft X 6 ft close to the door of the lift. There was a space of 6 inches between the outer wall and the wall of the lift which is where he discovered the evidence of smoking and food consumption such as coke bottles and orange peelings. There was also a sharp smell of urine. He was shocked and concerned regarding the risk of fire because of the hydraulic lift as if fire went into the end of the lift shaft where oil was there was a real risk particularly because of the packaging and the wooden floors.
He spoke to a number of employees and to JF the owner. He brought JF to see the area and he was shocked and concerned.
The witness explained the various brands of cigarette boxes found and which employees were smokers and who smoked which brands and the brand on the boxes found was the brand that the Claimant smoked.
The Claimant was spoken to regarding the matter on Thursday, 1st May 2014; there was a trade union representative (Mr. P) present. The issue of smoking near the lift shaft was put to the Claimant and he denied it. The Claimant then said that he had smoked there one or two months ago, and then he changed and said that he might have had one or two cigarettes there in the last week. The Claimant was told to consider the matter overnight. On 2nd May 2014 the Claimant said that he had not engaged in smoking in that area.
An investigation was set up for the week of 9th May 2014. The Claimant was suspended with pay during the investigation. SR an external consultant carried out the investigation. The investigation found that no employees other than the Claimant had smoked in that area. The report concluded that smoking and consumption of food had occurred. SR also met other employees and a copy of the report was given to the Claimant.
On foot of the report a meeting was held with the Claimant and the shop steward (EP). The Claimant was asked if he had comments on the report. The Claimant was told that the matter was serious and would be considered overnight.
JC met the Claimant the following day and he felt that he had to dismiss the Claimant from a safety point of view. The Claimant was represented by a trade union. The letter of dismissal dated 4th June 2014 was opened to the Tribunal. The Claimant appealed the dismissal to JF the owner but the dismissal was upheld.
The witness was cross-examined.
Hearing adjourns and resumed on 19th May 2016:
The Tribunal heard evidence from SR, who is an external Health and Safety consultant to the Respondent. He gave extensive evidence as to his investigation. He interviewed the employees who were smokers. The witness told the Tribunal that the Claimant admitted to smoking in the area. He had admitted it at first he then denied it, he then admitted it. He told the Tribunal that, “it was hard to see that he was credible”. The witness was asked how he linked the Claimant to urinating and he replied, “because he admitted he was there smoking”.
The witness was cross-examined.
Claimant’s case:
The Tribunal heard evidence from the Claimant. He commenced in the Respondent company in February 2006 as a packer. He was promoted to senior miller by working his way up. He started smoking in 2010/2011. He smoked about 20 cigarettes per day. When he commenced with the Respondent the smokers smoked on the roof area, the balconies and any outside areas. Designated areas were allocated in 2010. Some smokers continued to smoke on the roof areas and outside areas as they had before. The practice of smoking was ongoing
Regarding his smoking in the area he admitted to it. He was not alone in the practice. He did not think that it was an issue; no one was asked to stop smoking. Four other people smoked there as well and some contract workers. He put out his cigarettes by stamping on them. He recalls most of the training that he did and does not remember smoking being brought up. Regarding training for audits he recalled the need to keep the work area tidy. He was never spoken to about smoking. There was no sign regarding no smoking on the lift shaft or in that area.
Regarding urinating he did not urinate there. He did not eat or consume drinks there. Regarding oranges he does not eat oranges.
Regarding food he did bring in food but he cooked it in the canteen ovens.
He was suspended pending an investigation. JC did call him into the office and he was questioned about his smoking and the brand he smoked. He admitted to JC that he had smoked in the area and he offered to clear up the debris in the area.
He went and got an industrial hoover and cleaned up the area. He placed the rubbish in the skip.
He had initially been approached by JC on 29th April 2014. JC asked to meet him on 1st May 2014. Other workers asked him what was happening and he told them that he had been “called up” for smoking on the roof area.
He was not aware that his job was at risk. If he had been aware that his job was at risk he would not have smoked in the area.
The Claimant, who is now in employment, gave evidence of efforts to mitigate his losses.
The Claimant was cross-examined.
Determination:
Having considered the evidence adduced at the hearing and the submissions the Tribunal finds that the Respondent is entitled to dismiss an employee for a breach of the smoking policy provided that the employee in question is aware that such a breach may result in dismissal. The Tribunal finds that the Respondent did have in place a separate policy regarding smoking which provided that breaches could result in dismissal but there was no clear evidence before the Tribunal that the Claimant had been made aware of this.
The Tribunal accepts that the Claimant was unaware that engaging in smoking at the lift shaft was a sackable offence albeit he probably knew it was something he should not be engaging in.
The Tribunal finds that there is no evidence that the Claimant engaged in the other impugned conduct.
Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant compensation in the amount of €10,200.
In setting the level of the award the Tribunal took into account that the Respondent would have been entitled to dismiss the Claimant but for the apparent failure to make the Claimant aware that a breach of the smoking policy could result in dismissal.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)