EMPLOYMENT APPEALS TRIBUNAL
CASE NOS,
UD1724/13
TE205/13
APPEAL OF:
McCormack Garages Sligo Ltd.
– appellant
McCormack Garages Sligo Ltd. (In Receivership)
- appellant
against the recommendation of the Rights Commissioner in the case of:
Ivor Evans
– respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. McAveety
Members: Mr D. Morrison
Mr T.J. Gill
heard this appeal at Sligo on 1st September 2015 and 21st June 2016.
Representation
Appellant: Mr Terry McNamara of IBEC, 3rd Floor, Pier 1, Quay Street, Donegal Town
On 1st September 2015 9(first day only)
Respondent: Mr Shane McDermott of Mullaney’s Solicitors, Thomas Street, Sligo
The determination of the Tribunal is as follows
This case is before the Tribunal by way of an employer appealing the recommendations of a Rights Commissioner ref: r-132124-ud-13/EOS under the Unfair Dismissals Acts, 1977 to 2007 and r-129901-te-13/EOS under the Terms of Employment (Information) Act 1994.
The appellant’s representative told the Tribunal that there is uncertainty about the date the respondent commenced his employment. It is possible that he was in employment when the Terms of Employment (Information) Act 1994 commenced.
Appellant’s Case
A maintenance operations worker, MOW, who had worked under the respondent’s supervision for 5 years gave evidence. On Monday 24th September 2012 the respondent collected him from his home in the company van and drove to a site where they were to install a prefabricated toilet at a filling station and shop belonging to the appellant and located in Belturbet. They went to a builders’ merchant to collect pipes and supplies. The respondent left on foot and without explanation. MOW went to the site and got on with the job. The respondent returned after lunch smelling of drink and with slurred speech. He did not explain his absence and MOW did not ask where he had been. The respondent wanted to go home but MOW wanted to get more done. They left the site at 4.00pm and the respondent agreed that MOW would drive. At his house MOW brought the respondent in for coffee before he drove on.
The next day the respondent collected MOW from his home again and drove the 50 minute drive to the site. The respondent left the site on foot. Later he phoned MOW to collect him from a nearby pub. The respondent was well intoxicated. Back at the site the respondent went into the deli to get some food. The respondent sat in the passenger seat of the van to eat. MOW went back to work.
The operations manager and the head of retail arrived. The operations manager asked MOW how long it would take to finish the job. Then he went to speak to the respondent and he noticed the respondent had drink taken. The operations manager told MOW to take the respondent home and to leave the van at another of the appellant’s premises.
MOW said that it was not custom and practice to drink on the job.
The operations manager, OP, gave evidence. He oversees the staff in the chain of 10 shops and he also investigates complaints. He visits the shops regularly. On 25th September 2012 he and the head of retail were on the road when head office phoned him. There was a complaint from the Belturbet shop that a maintenance man was intoxicated on the job. He drove to Belturbet in about 40 minutes.
The respondent was obviously intoxicated and eventually he admitted that he had 3 pints over lunch. OP told the respondent to go home and report to head office in the morning. The respondent wanted to drive the van but OP insisted that MOW drive.
OP felt no animosity towards the respondent and he did not prejudge the situation. There are procedures for dealing with issues.
The appellant had approximately 200 employees and there is not a culture of drinking at work. The respondent never asked OP for a contract of employment. The respondent was a very good tradesman.
The head of retail gave evidence. She had just re-joined the appellant and OP was showing her the ropes. He received a phone call asking him to deal with an incident in Belturbet. When they arrived there, there was a strong smell of alcohol off the respondent, his speech was slurred and he was unsteady on his feet.
The chief finance officer for the group, CFO, gave evidence. When OP brought the matter to her attention she wrote to the respondent inviting him to an investigation meeting and advising him to bring a representative. She enclosed a copy of the appellant’s disciplinary procedure. The 3 allegations against the respondent were stated.
The respondent was accompanied by his friend when he came to the investigation meeting. The respondent told her that on the Monday 24th September he felt unwell and went for 2 brandy and ports to settle his stomach. On the Tuesday he left work again for brandy and port and Guinness. He accepted that he left work on both days and neither apologised nor made a case in mitigation. He wanted to get the meeting over with. The CFO made the decision to dismiss and she did not feel that any alternative sanction would be appropriate. He was given the option of appealing to the managing director.
The appellant’s evidence concluded on 1st September 2015.
On 16th June 2016 the representative for the appellant notified the Tribunal that the appellant had gone into receivership.
Neither the receiver nor their representative appeared on 21st June 2016.
The Tribunal is satisfied that the appellant’s proper title is as stated above.
The Tribunal then proceeded to hear the respondent’s case.
Respondent’s Case:
In 1996 the respondent carried out refurbishment work over a six week period on a bar in Ireland for the appellant. He had travelled from England and when he finished the work he returned to England.
He returned to work for the appellant in 1996 in the role of Construction Manager.
He was not furnished with a contract of employment, disciplinary or grievances procedures and never given any payslips during his tenure.
He socialised with the company Directors, J, K and B. They had pints together once or twice a month over lunch. It was custom and practice in the company. During his time working in the company work was done cost effectively. No issue was ever raised with him over the quality of his work.
Three months prior to the termination of his employment Revenue issued him with a fine in relation to a tax issue. He subsequently paid this fine and J told him it would be sorted.
On 24th September 2012 the respondent was working with his colleague JD on a site but had been feeling unwell. At lunch time he went to the local chemist to get tablets to try and settle his stomach. He then went for a few drinks. He returned to the site and they decided to call it a day at 4.10 pm. He drove from his parent’s home to his own home place. He was not incapable of driving and felt fit enough to drive.
The next day he returned to work on the site and again consumed some alcohol at lunch time. After lunch and while he was sitting in the van he was approached by JF and L. They told him that they had been sent by J to investigate matters. He was asked if he had been drinking the day before and again today. He said he had consumed alcohol. They told him not to drive the van home.
By letter dated 26th September 2012 the respondent was invited to a disciplinary meeting to investigate allegations of gross misconduct. The company’s disciplinary procedures were enclosed with that letter. This was the first time that the respondent had sight of these procedures. Following a disciplinary meeting on 5th October 2012 the respondent was dismissed from his employment. He appealed the decision to dismiss him. The appellant upheld the decision to dismiss him. He received his P45. The following day company Director B met him. He was asked to meet J the following day. The next day he met J and was offered contract work to finish off a job. He declined this offer.
Determination
Based on the uncontested evidence of the respondent, the Tribunal upholds the decision of the Rights Commissioner under the Terms of Employment Act, 1994 (ref r-129901-te-13/EOS n) and awards the respondent €1200.00.
The Tribunal heard evidence from the respondent on the second day of the hearing, 21st June 2016. The Tribunal is satisfied that it was reasonable of the appellant to assume that the level of alcohol consumed by the respondent was not acceptable in the workplace and that this would constitute gross misconduct.
The Tribunal upsets the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)