Complainant

Respondent

Anonymised Parties

A General Operative

A Meat Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00005675-001

06/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00005675-002

06/07/2016

The complainant contends that he was unfairly dismissed for smoking in a non-designated smoking area and that he did not receive any notice, or pay in lieu in compliance with Statute.

The complainant was employed by the respondent from 17^th May 2010 to 12^th January 2016.   He worked as a General Operative.   He was summarily dismissed from his post on 12^th January 2016 for smoking in a non-designated area.   He was smoking in a toilet located next to the pen area in which he was working. The complainant was due a break from his post and company policy was that he had to be relieved by another worker. This other worker was late and therefore his break was cut short.   The complainant then went to the toilet. He was wearing his overalls and found cigarettes as his own clothes were on underneath his overalls. He smoked one cigarette when his co-workers found him and reported him. He initially denied the act but on the second time of being asked he accepted that he had smoked. The complainant had previously been on sick leave and was suffering from depression. He had been diagnosed by his doctor as suffering from this in late 2015 owing to difficult personal circumstances. He had started working again prior to the dismissal.   It is submitted that his dismissal is linked to his absenteeism and illness.

The complainant had no disciplinary history relevant to the claim. He had been previously disciplined for absenteeism. He received stage 1 verbal warnings and one stage 2 written warnings for absenteeism.   However, all instances are deleted from his record by now and have no correlation to his claim.

The complainant submits that the circumstances in which he was dismissed did not warrant the action which was taken. It is acknowledged that smoking in a non-designated area is listed as grounds for gross misconduct in the company handbook. However, the totality of the situation is such that the dismissal was unfair. The complainant was immediately dismissed. A meeting was hastily convened not allowing the complainant to address matters fully. The meeting was terminated with the decision to dismiss the complainant.   The respondent did not take time to analyse the issue or circumstances. It is submitted that the expedited process by which he was dismissed breached the well-established rule that an employer must apply constitutional fair procedures.   The reasonableness of the employer must also be examined and it is submitted that the complainant’s case fell below the threshold required. It is further submitted that the respondent failed to follow correct disciplinary procedures, initially and when the decision to dismiss was appealed.   The complainant submits that smoking did not constitute gross misconduct in the circumstances and alternative options were available to the respondent.

The complainant did not receive any notice or pay in lieu in compliance with Statute.

The complainant was dismissed by reason of gross misconduct for smoking in a prohibited area.   The company has a no-smoking policy which is enforceable by law under the Tobacco Smoking (Prohibition) Regulations 2003. No smoking is permitted in any area of the plant and grounds, including all exterior areas within the fenced boundary, except the nominated smoking hut shed.   Besides a potential fine of up to €3,000 for smoking in undesignated areas, any employee found in breach of the company smoking policy will automatically be subject to the company disciplinary procedure, up to and including dismissal.

The company’s quality assurance scheme is a programme whereby food is produced to a strict set of quality standards / rules and they must ensure at all times that production either directly or indirectly is in accordance with those standards.   These standards are promoted extensively through training and noticeboards. A consequence of the company not meeting these standards would be an exposure of the future of the company and its employees’ jobs.   Further, failure of the company to comply with required regulations and rules inclusive of smoking would result in the cessation of production by the Department of Agriculture, Food & Marine.

The complainant was dismissed having been identified smoking in a prohibited area by the Quality Assurance Officer and Lean Manager during a routine safety audit.   He was dismissed following a disciplinary meeting on 12^th January 2016 at which he was represented by his shop steward.   An appeal hearing was held on 22^nd March 2016 at which the complainant was represented by his Trade Union Official.   The appeal was rejected and the complainant was informed by letter dated 18^th April 2016 that his employment was terminated. The company dealt with the matter of the complainant’s sick leave as an entirely separate matter in 2012, 2013 and 2014 and there was no mention of this issue in his appeal.

In conclusion, the company has statutory obligations regarding safety and food quality within the workplace and its employees are likewise obliged to follow and co-operate with the rules.   Given the legislation, insurance requirements, risks and publications for smoking in the workplace, in this instance, dismissal is not disproportionate.

CA-00005675-001

The applicable law

Section 6 (1) of the Act provides that the dismissal of an employee shall be deemed to be an unfair dismissal unless,” having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6 (4) (b) of the Act provides that the dismissal of an employee shall be deemed not to be an unfair dismissal if it results wholly or mainly from “the conduct of the employee”.

In this case, the complainant was dismissed for gross misconduct for smoking in a non-designated area.   Based on the evidence and submissions in this case, I find that the health & safety implications of the complainant’s action and potential affect on the business and future employment of the workforce in this situation was clearly evident. I accept the company’s position that it is obliged to enforce a zero tolerance of smoking in that particular workplace, and I find therefore that there were substantial grounds justifying the complainant’s dismissal. I do not uphold his complaint that he was unfairly dismissed.

CA-00005675-002

As the dismissal was deemed not to be an unfair dismissal and the complainant was dismissed for gross misconduct, his claim for minimum notice is not upheld.