EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD956/2015
APPEAL(S) OF:
Michael McInerney
-appellant
against the recommendation of the Rights Commissioner in the case of:
Michael McInerney
v.
Top Security Limited
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. MacCarthy S C
Members: Mr. E. Handley
Mr. F. Keoghan
heard this appeal at Dublin on 9th August 2016
Representation:
Appellant: Ms. Mary Smith, Meath Citizens Information Centre, Floor 2, 1 Cannon Row, Navan, Co Meath
Respondent: Mr. John Barry, Management Support Services, The Courtyard, Hill Street, Dublin 1
Background:
This case came before the Tribunal by way of an appeal by an employee against a Rights Commissioner Decision (reference: r-154210-ud-15/JT).
The determination of the Tribunal was as follows:-
The appellant commenced his employment in July 1996 as a security officer and his employment transferred to the respondent company by virtue of a transfer of undertakings. The respondent company was not provided with employee records preceding the transfer. However, there were no performance issues with the appellant post transfer until the 11th September 2014. It was common case between the parties that the appellant consumed some alcohol on that date however the extent to which the appellant was affected by the consumption was in dispute.
The appellant was one of two security officers assigned to a large sports stadium on the night of the 11th September 2014. There was no event taking place in the sports stadium on the night in question but the appellant was expected to conduct CCTV monitoring and mobile checks in rotation with his colleague.
It was the respondent’s case that the appellant attended late for work and was intoxicated when he arrived. The Supervisor on the night in question gave evidence that he was informed at 7.15pm that the appellant had not attended for work. However, he was subsequently asked to investigate when it was reported that the appellant had arrived but was reported as unfit to work.
The supervisor entered the control room to find the appellant slouched in a chair and he appeared as though asleep. However, he responded when the supervisor called his named. The appellant disputed that he was asleep and stated that he had met the supervisor in the walkway when he arrived to the stadium.
It was the supervisor’s evidence that he could smell alcohol and the appellant admitted to him that he had consumed four cans of alcoholic beverage earlier in the day. The appellant also told him that it was a regular occurrence for him to attend work while under the influence.
The appellant refuted he had smelled of alcohol or that it was normal for him to drink before work. In a jocular manner he had passed a remark to the supervisor about attending for work under the influence of alcohol. On the day in question he had consumed three cans of alcoholic beverage over the course of a four hour period. This was not the norm for him and he outlined to the Tribunal the reasons why he consumed alcohol that day. He refuted that he was unfit to carry out his duties and he disputed a written statement which stated that he had agreed with this assertion.
The Supervisor informed the appellant that in his opinion he was unfit for work. He asked the appellant to leave and to attend a meeting the following day with the Operations Manager.
The Operations Manager was informed of the incident and provided with the written statements by the time he met the appellant the following day. When he met the appellant he outlined the allegation and the seriousness of the matter. He offered to postpone the meeting to allow the appellant to seek representation. The appellant stated in evidence that he was anxious to proceed. He acknowledged that he was informed that the matter was serious but he was not informed that the meeting was disciplinary in nature. He also stated that the witness statements were “waved” in front of him but he was not provided with an opportunity to read them.
It was the Operation Manager’s evidence that the appellant initially denied but later admitted that he had consumed around four cans of an alcoholic beverage earlier that day. The Operations Manager put a number of questions to the appellant at that meeting. The Operations Manager also pointed to the appellant’s statement where he stated that he was guilty of what he was accused of and agreed that he was unfit for work. The appellant disputed the content of this statement in his evidence.
Following a recess the Operations Manager returned to the meeting and informed the appellant that he was dismissed from his employment. The Operations Manager accepted under cross-examination that suspension was an option he had not availed of.
The appellant did not receive a letter of termination and the Operations Manager could not offer an explanation for this despite his previous experience of the disciplinary process. The Operations Manager was satisfied that the appellant was aware that he could be dismissed. It was the appellant’s evidence that he was told the matter was serious but that he was not told that there was a risk he could lose his position in the company. He is aware of the standards that are required in the security industry. The appellant disputed that he was offered the opportunity to appeal as noted in the Operation Manager’s statement. The appellant did not seek to appeal the decision.
The appellant gave evidence of his financial loss since the dismissal.
Determination:
The Tribunal is of the view that the manner in which the appellant arrived for work, as a security officer, under the influence of alcohol is a substantial ground justifying dismissal and that the appellant knew that and that it is well-known in the industry.
The Tribunal also have regard to the manner in which the dismissal was conducted and how the investigation meeting turned into a disciplinary meeting.
The respondent’s Code of Conduct for Security Officers states at Section 13:
“Alcohol and Drugs
Alcohol will not be drunk prior to or during any period of duty. Anyone who is suspected of being unfit because of alcohol or drugs while on duty or when reporting for duty will be suspended at once.
In Addendum A to the Code of Conduct entitled “Disciplinary Procedure” the respondent’s procedure states:
Investigations:
No action will be taken before a proper investigation has been undertaken by the company relating to the circumstances of the matter complained of. If appropriate, the company may suspend you with pay for a specified period during which time such an investigation will be undertaken. During the period of suspension you will not be entitled to access any of the company’s premises except at the prior request or with the prior consent of the company and subject to such conditions as the company may impose. The decision to suspend you will be confirmed in writing.
Decision Making:
The Company may elect to offer you the opportunity to make written representations or to convene a disciplinary hearing. You will be given details of the complaint against you before you will be expected to make any written representations or attend any such disciplinary hearing. At any disciplinary hearing you will be given an opportunity to state your case. A fellow employee of your choice may accompany you.
Appeals:
You have the right of special appeal at any stage of the disciplinary procedures. You should inform the Human Resources Department in writing of your wish to appeal within five working days of the date of the decision, which forms the subject of your appeal. The decision will become final and binding if you fail to notify your intention to appeal within the time permitted.
The appeal will be conducted as soon as possible thereafter and you will be given an opportunity to state your case and will be entitled to be assisted by a fellow employee of your choice.
The decision on appeal will be notified to you in writing and will be final and binding.
Dismissal:
A decision to dismiss you will not be taken without reference to the Human Resources Department and will be notified to you in writing.
Gross misconduct:
Gross misconduct may result in immediate dismissal without notice or pay in lieu of notice. A decision to dismiss will not be taken without reference to Management. Dismissal will be notified to you in writing.”
Section 5 of the Amending Act of 1993 which substitutes the following subsection for subsection (7):
Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—
(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.
The Tribunal is of the view that the respondent has failed to follow these provisions in their Code of Conduct. The Tribunal is of the view it is appropriate to have regard to those failures under the subsection above. For that reason the Tribunal finds the dismissal unfair.
Under S. 7(1)(c):
(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:
(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.
As a substantial ground justifying dismissal has been shown to the satisfaction of the Tribunal the level of compensation will therefore be considerably less than might otherwise be awarded. The sum of compensation awarded is €20,000 under the Unfair Dismissals Acts, 1977 to 2007. Thus the Tribunal upsets the Rights Commissioner’s Decision reference: r-154210-ud-15/JT.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)