Complainant

Respondent

Parties

James  Sammon

Galway Multiplex Ltd

Representatives

McInerny Solicitors

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00039915-002

18/09/2020

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

CA-00039915-003

18/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00039915-004

18/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00039915-005

18/09/2020

The complainant submits that the respondent breached the provisions of the Organisation of Working Time Act, 1997. He further submits and that he was unfairly dismissed on the 17/7/2020.

He was promoted to the position of general manager in the respondent’s cinema on the 7 November 2011. For the previous six years he was employed as a duty manager in the same cinema.

He worked 48 hours a week. His gross, monthly salary was €2208.

He submitted his complaints to the WRC on 18 September 2020.

CA-00039915-002. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant was required to work 56 hours per week in the period October – November 2019 and for 58-60 hours in the week commencing the 14 October 2019. He told the HR manager of the urgent need for more staff and for a replacement duty manager, but nothing happened. After he was suspended more personnel were hired.

CA-00039915-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The complainant was the general manager in the respondent’s cinema.

The complaint’s representative submitted that the complainant’s employment was terminated on the spot on 19 November 2020.

The complainant’s representative stated that on the 17 November the complainant asked a colleague to purchase alcohol for him for an after-work event. He did not consume alcohol on the premises. He was reported to have dozed off at his desk on the 18 November. The third factor leading to his dismissal was an emailed complaint from a customer, expressing a belief that the person whom she saw in the cinema foyer, and who was drunk on 17 November was the manager. This email could have come from anybody.

The complainant does not believe that he was afforded fair procedures. The respondent set up and concluded an investigation meeting on the 22 November and scheduled a disciplinary meeting for the 26 November.  The complainant had suffered a nervous breakdown and that is the reason he did not feel that he could participate in either the investigation meeting on the 22 November or the disciplinary meeting scheduled for 27 November.

The complaint was not intoxicated on the premises.

He was led to believe that he would be reintegrated back into his job.

Complainant’s Evidence.

The complainant stated that the manager from Oranmore came to him on 19 November, told him that he was fired, that he was to leave the premises immediately and to hand over the keys. She provided him with a letter which she stated could only be read after he had left the premises. The letter was from the HR manager inviting him to an investigation meeting on the 20 November.  An investigation meeting was rescheduled for 22 November but suffering from a nervous breakdown, he believed that he would not be able to function properly at this meeting. He submitted a sick cert to this effect on date 26 November confirming that he was suffering from depression.

On 29 November he was asked to attend the company doctor. He never received the report which the company doctor sent to the respondent.

He hoped that he would be reinstated in his job based on correspondence which passed between the HR manager and himself.

The complainant doesn’t know who took the photograph of him dozing off for a few minutes at the desk.

He apologised to the respondent for having asked a more junior colleague to go and purchase cigarettes and alcohol for him. He accepted that that action was indefensible. He also apologised for falling asleep at the desk and for any smell of alcohol which might have emanated from on the 18 November while at work.

He was depressed during this period.

 He requested a copy of the minutes of the welfare meeting but never got them.

Cross examination.

The complainant confirmed that there was no reference to dismissal in the letter of the 19 November inviting him to an investigation meeting. He confirmed that the manager from Oranmore who told him that he was dismissed was not a decision maker.

The complainant stated that he did not come into work under the influence of alcohol.

The complainant confirmed to the adjudicator that he was not under medical care or on medication on the 22 November.

To the point that he refused to attend the investigation meeting in Galway, the complainant stated that he did not know what was going on; he was physically and mentally exhausted.

The complainant’s solicitor advises that he was declared unfit to work for 4-6 weeks and was prescribed medication for his stress and anxiety from the 27 November.

Mitigation

The complainant took up an alternative position on 14 September 2020, earning €29,000 per annum

CA-00039915-004. Complaint under section 27 of the Organisation of Working Time Act, 1997

The complainant states that he did not receive his breaks during the working day which spanned 12- 13-hour days on occasion. He worked these hours on the 11, 12 and 13 November. He received no breaks on these and other days.

He raised the need for additional staff with the HR manager, but nothing was done until the months following his suspension when extra staff were employed.

 CA-00039915-005. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant withdrew this complaint.

CA-00039915-002 Complaint under section 27 of the Organisation of Working Time Act, 1997.

The respondent points to section 15 of the Act which requires that the reference period for a complaint of weekly hours in excess of forty-eight is four months. Therefore, there was no breach under section 15 of the Act.

CA-00039915-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977

The respondent denies that the complainant was unfairly dismissed. The complainant’s employment was terminated on 17th July 2019 due to reasons of misconduct by a way of a full, impartial and fair investigation and disciplinary process.

The Respondent relies on section 6(4)(b) of the Unfair Dismissals Acts (1977 - 2015) in its defence.

The complainant had not made the respondent aware of his health issues.

 The complainant was suspended with pay on 19th November 2019 with reasons provided. An investigation meeting was to follow on 20th November. The investigative meeting conducted by the HR manager on 22 November upheld the allegation that the complaint was asleep while at work. The complainant chose not to engage with the investigative process and disciplinary process. He was ill, and this delayed the disciplinary hearing until July 2020.

He was dismissed on 17 July 2020. He appealed the decision to dismiss in a written document. The appeal was not upheld and the original decision to dismiss was upheld.

The decision to dismiss was substantively and procedurally fair. The process conformed to S.1 146/ 2000. The respondent’s representative cites Looney & Co. Ltd. v Looney UD843/1984 as the basisfor their contention that the adjudicator should uphold their decision.

The respondent concluded that the complaint had fallen asleep.

The complainant remained on sick leave until 10 March 2020.

Witness 1. HR Manager.

The witness stated that an allegation was sent by email from a customer on 18 November 2019 that the manager in IMC looked intoxicated in the cinema on the previous day.  Further allegations that the complainant appeared intoxicated on the 17 November, had fallen asleep on duty on the 18 of November and had sent a junior colleague out to purchase alcohol and cigarettes for him were put to the respondent on 19 November by two supervisors in the cinema.

There was contradictory evidence between the complainant and his colleagues. The complainant first stated that there may have been a smell of alcohol from him in contrast to the supervisors’ statement that the complainant smelled strongly of alcohol.

The complaint was suspended on pay. An investigation was scheduled for the following day the 20 November. The complainant did not attend. The witness conducted the investigation in his absence on 22 November. Photographic evidence – CCTV showed the complainant to be under the influence of alcohol. The footage showed him to be asleep at his desk. A member of staff took a photograph of him asleep at the desk.

Cross examination.

The witness stated that she could not be sure if the complainant received the photograph or CCTV footage before the investigation meeting on 22 November as he did not turn up for the meeting. He therefore didn’t see it. The witness stated that they were not on notice that the complainant had suffered a nervous breakdown and were unaware of the complainant’s health until the 27 November. 

The complainant’s representative asked if the respondent was aware that the complainant had a new born child and that sleeplessness caused him to fall asleep. The witness stated that it was unacceptable to fall asleep. The key issue for the respondent was the health and safety risk.

The witness accepted that he did apologise but that his initial reaction was an untruth.

The company’s final decision was that he was asleep rather than intoxicated. The witness accepted that he had no previous warnings.

 The witness stated that she understood that the respondent director who dismissed him did consider other sanctions such as demotion but on the basis of the misconduct, elected for dismissal; dismissal was the last option.

The company did consider that he had a nervous breakdown and did consider his 7 years’ service but felt that the gross misconduct warranted dismissal.

The respondent’s representative stated that they received a medical certificate dated 26 /11/2019 and a further one on the 29 /11/2019.

CA-00039915-004. Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant was the manager, in charge of the rosters, and should have rostered his own breaks.

The respondent asks the adjudicator to dismiss this complaint.

CA-00039915-002 Complaint under section 27 of the Organisation of Working Time Act, 1997.

I am obliged to establish if the respondent contravened section 15 of the Act of 1997 concerning weekly working hours.

Relevant Law.

Section 15 of the Act states

“—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed

(a) 4 months, or

(b) 6 months—

(i) n/a

(ii) n/a

The hours which the complainant worked in excess of the statutory limit of 48 hours a week during October and November 2019 were confined to a two month period and did not extend over a four-month period.

I do not find this complaint to be well founded.

The complainant’s complaint form states that he did not get his daily rest periods. His rosters submitted in evidence show compliance with section 11 of the Act.

I do not find this complaint to be well founded.

CA-00039915-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977

Relevant Law.

Section 6(1) of the Unfair Dismissals Act, 1977 states that

“subject to the provisions of this section the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to all the circumstances there were substantial grounds justifying the dismissal “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states

“…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a)      n/a

b)     the conduct of the employee”

In deciding if the dismissal was unfair, I must examine the grounds used by the respondent to justify the dismissal and the procedures used to effect the dismissal.

Grounds for dismissal.

The grounds cited for the complainant’s dismissal were

1)           that that on the 17 November the complainant asked a colleague to purchase alcohol for him,

2)           he was asleep at his desk on the 17 and 18 November.

3)           he smelled of alcohol on the above dates.

The complaint accepted that the above allegations were correct. He acknowledged the irresponsible nature of his behaviour and apologised. Concerning the report by two colleagues that he smelt of alcohol, the complainant stated he had been drinking the previous night.

The respondent’s disciplinary procedure itemises an inexhaustive list of what constitutes gross misconduct. This procedure is appended to the complaint’s contract of employment. Included in this list is being under the influence of or in possession of alcohol. Section 29 of the procedure includes endangering the health and safety of him/herself, work colleagues and the public. Gross misconduct on the part of an employee allows for suspension and summary dismissal or whatever sanction the respondent deems appropriate in the circumstance.  Paragraph 26 also allows for what they call “disciplinary demotion as an alternative to dismissal”.

One of the key determinants propelling the respondent’s decision to dismiss the complainant was set out in their letter of dismissal of 17 July 2020 which stated 

” the fundamental issue at the disciplinary hearing was the abuse of the complainant’s position of authority. All staff members have the right to work in a safe environment and not feel threatened by another employee of the IMC.”

 No evidence was submitted to support this conclusion that the staff member felt threatened nor did his written statement submitted in evidence contain such an allegation. The complainant was not given an opportunity to question the colleague as to how his request to purchase the alcohol impacted on the colleague as opposed to the feelings ascribed by the respondent to the colleague. This conclusion only surfaced during the disciplinary meeting with the respondent director in July 2020 and not before it. While I find that deploying a junior colleague to purchase alcohol was an improper misuse of his position, it is another step to state that the employee felt threatened or coerced. It is accepted that he apologised for asking a colleague to purchase alcohol and cigarettes for him and to hand over these items out of range of the cameras situated in the office.

Given the untested nature of this allegation, I do not find this to be substantial reason for a dismissal.

I find that falling asleep as the manager while on duty in a cinema in the context of the evidence submitted does constitute a hazard to staff and patrons. I find that this does damage the relationship of trust to which the respondent is entitled. I find that this is a substantial reason for a dismissal.

The respondent relies on Looney & Co. Ltd. v Looney UD843/1984, where the EAT in considering the scope of a decision-making body said that it is their responsibility to

“consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.”

I do not consider that Looney eliminates the obligation to consider the conduct of the employer in executing a dismissal.

Procedures used to effect the dismissal.

Section 6(7) of the 1977 Act as amended states

“(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 adjudication officer or the Labour 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, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) of section 7(2) of this Act”.

Firstly, the uncontested evidence is that a fellow manager told the complainant on the 19 November that he was dismissed and to return the keys. The complainant was suspended on the 19 November, an investigative meeting was convened for 20 November at which the complainant failed to attend, was reconvened for 22 November and proceeded in his absence to recommend a disciplinary hearing. The complainant emailed the respondent apologising for his behaviour.

The disciplinary hearing was scheduled to proceed on the 27 November though the complainant had notified the respondent that he believed he was mentally unfit to engage in a disciplinary procedure.

On the 27 November the complainant’s GP declared him unfit to work for 4-6 weeks due to depression. The respondent postponed he disciplinary process until July 2020 after the complainant had been certified medically fit to engage in same.

None of the respondent’s letters to the complainant summoning him to an investigative meeting or to a disciplinary meeting reference the process under which the allegations against him will be examined and thus deny him the opportunity to ensure compliance with their terms. None of these same letters advised of the potential outcomes/ sanctions which the complaint would face if charges were upheld against him. The letter inviting him to the disciplinary meeting on 16/6/2020 accused him of serious misconduct.

The complainant was dismissed on 17 July. He was advised on 21 July that his appeal would be way of written submission and was to submit same by 24 July, a period of three days. None of the points which he raised in his appeal dated the 24 July were specifically addressed in the respondent’s response to his appeal of 4 August which was a reiteration of their reasons for the dismissal. His appeal was not upheld.

 Section 6 of S.I 146/2000 requires that procedures employed in a disciplinary process must comply with the requirements of natural justice and fair procedures which include in Section 7   

“that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.”

The respondent did set out the allegations to the complainant in advance of the investigation and disciplinary meeting.

The respondent HR manager in evidence was unable to confirm that they gave the documentary evidence underpinning the allegations (the CCTV footage and the photograph) to the complainant before the investigation meeting scheduled for 20 November and stated that as he did not attend that meeting, he did not see the evidence.

The conclusion drawn by the respondent director that the complainant coerced the colleague to purchase alcohol was not put to him until he was in the middle of the disciplinary hearing conducted by the respondent director on 9 July 2020. The complainant did not agree that the colleague had been coerced.

I find the failure to bring the complainant’s attention to the prospect of a dismissal,  the classification of his misconduct as serious in the invitation to the disciplinary hearing  which was held on the 9 July 2020, the absence of an opportunity to cross examine the colleague whom the respondent describes as being threatened -a central and significant element in the respondent’s rationale for dismissal, the respondent’s nonengagement with the points made in the complainant’s appeal reveals a process that falls short of the entitlements to natural justice found in S.I 146/2000.

The issue of employees being under the influence of or affected by alcohol was considered by the Labour Court in Irish Aviation Authority v Christopher Reddin, UDD 1710, The Court stated

“The Court is of the view that generally speaking when dealing with an employee who has an alcohol dependency problem employers should give such employees an opportunity to seek professional treatment before considering dismissal. However, each case must be judged on its merits. Factors such as risk to safety, the level of responsibility the employee has and contact with the public are taken into account in deciding whether or not the penalty of dismissal was within the range of reasonable responses an employer might take”.

The Court held that it was reasonable in the circumstances to dismiss the Complainant, an air traffic controller, when he presented for work substantially over the alcohol limit on 31 July 2015.

While that above role was an acutely safety critical role, I cannot say that the complainant’s role, supported by other staff members, though safety critical, was on a par with that of an air traffic controller. In addition, what the respondent concluded was that the complainant was in possession of alcohol but did not conclude that he had consumed it at work or that he was under the influence, though there were undisputed risks to customers if the complaint was asleep.

The referral to the company medical officer in November 2019 was to assess his fitness to engage in a disciplinary process or to return to work. No evidence was submitted of any attempt to provide him with an opportunity to source assistance for his mental health or possible alcohol dependency

It was a rapid descent for the complainant - a period of two weeks from being trusted to take on the general manager’s role to being suspended with a view to dismissal.

 On the basis of the evidence, I find the complaint to be well founded.

Loss.

The complainant’s loss was €4072. He has taken up employment within two months of the dismissal.

Remedy.

I consider that compensation is the more appropriate remedy.

Section 7(2) of the Act of 1977 as amended provides that in considering the amount of compensation to be paid, regard shall be had to the contribution of the employee to the dismissal.

I find that the complainant ‘s contribution to his dismissal was significant and I reduce the award by 60%. I require the respondent to be pay the complaint the sum of €1,619.

CA-00039915-004. Complaint under section 27 of the Organisation of Working Time Act, 1997.

Relevant Law.

Section 12 of the Organisation of Working Time Act, 1997 provides as follows;

“(1)        An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her to have a break of at least 15 minutes.

(2)         An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes.”

To demonstrate that the complainant did get his breaks, Section 25 of the Act requires employers keep records to show compliance with Section 12.

Section 25 (4) states

“(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.”

The respondent cannot confirm if the complainant took any of the statutory breaks which he identified in his evidence as having been withheld from him and merely stated that as a manager he drew up the rosters and should have organised his own breaks.

The responsibility lies with the respondent to prove that they complied with the provisions.

The complainant was new to the management position having been appointed to the position on 7 November.  Because of the responsibility which lies with the respondent to implement the provisions of the Act and their inability to demonstrate compliance with its provisions, I conclude that the respondent is in breach of section 12 of the 1997 Act.

 I find this complaint to be well founded.

I order the respondent to make a payment of two weeks’ wages to the amount of €1018 in compensation for a breach of the complainant’s statutory rights.

CA-00039915-005.  Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant withdrew this complaint as it is a duplicate of CA-00039915-004.

CA-00039915-002 Complaint under section 27 of the Organisation of Working Time Act, 1997.

I do not find this complaint to be well founded.

CA-00039915-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I find this complaint to be well founded.  I require the respondent to pay the complainant the sum of €1,619 in redress.

CA-00039915-004. Complaint under section 27 of the Organisation of Working Time Act, 1997

I order the respondent to make a payment of two weeks’ wages to the amount of €1018 in compensation for a breach of the complainant’s statutory rights.

CA-00039915-005.  Complaint under section 27 of the Organisation of Working Time Act, 1997.

The complainant withdrew this complaint.

Unfair dismissal; allegations of alcohol misuse; procedurally unfair. Breaks during working day.