Complainant

Respondent

Parties

Darren  Kiernan

Joseph Brennan Bakeries

Representatives

Mary Duffy King

Robin Hyde of  Alastair Purdy & Co

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-00050861-001

25/05/2022

The Complainant, Mr Darren Kiernan, was employed by the Respondent, Joseph Brennan’s Bakeries as a  General Operative from 17 July 2002 until 15 December 2021. The Complainant was dismissed by the Respondent for smoking in his personal van in the Respondent’s parking lot, rather than in the designated smoking shed.

The Respondent discovered the location the Complainant had been smoking in by reference to their CCTV. They considered this to be a serious breach of health and safety policy.

The Complainant claims that his dismissal was unfair and referred a complaint under the Unfair Dismissals Acts 1977 to 2015 to the WRC on 16 January 2022. A hearing was held on 6th June 2023 to consider the complaint.

The Complainant attended the hearing and was represented by Ms Mary Duffy King, trade union official. The respondent was represented by Mr Robin Hyde, solicitor, and was accompanied by Mr James Foley, Group Dispatch Manager, Mr Stephen Whelan, Bakery Production Manager, Mr James Yarr Operations Director and Ms Therese Hennessy, HR officer.

At the conclusion of the hearing further submissions were sought by the parties on financial loss and any potential impact of Data Protection Regulations on the use of CCTV for the purposes of a disciplinary investigation.

The Respondent’s solicitor provided comprehensive submissions.

It is an absolute requirement for the Respondent to abide by the health and safety regulations relating to the processing of flour and other combustible materials, these are statutory obligation that the Respondent takes extremely seriously.

 In July 2021 there was a security incident in the Respondent’s car park and the Respondent changed the angle on their cctv cameras. Shortly thereafter Joe McDonald a Manager was conducting a regular review of the cctv on the 12th of July 2021 and discovered that the Complainant had been smoking in his van in the car park on the 11th of July. 

On the 14th of July the Complainant was asked to review the CCTV footage with Mr Stephen Whelan and Mr Tommy Walsh.  He confirmed that he was the person seen smoking in the van.

Following this the Complainant was placed immediately on paid suspension pending investigation.

Throughout the subsequent investigation there was no dispute as to the fact of the incident. Suspension with pay was required due to the seriousness of the issue.

At all stages fair procedures were afforded to the Complainant. An independent investigation was carried out. Following the completion of the investigation the matter was referred to a disciplinary hearing which determined that the Complainant should be dismissed. The Complainant then appealed the decision to dismiss him and was unsuccessful.

Smoking outside the designated areas was explicitly identified as serious misconduct which can warrant immediate dismissal in the Respondent’s disciplinary policy.  The Respondent has been entirely consistent in this regard and has dismissed employees in the past for smoking outside the designated areas.

The Respondent is referred to the decision of the Employment Appeals Tribunal in Employee V Employer UD679/2009. This case had a number of similarities with the case before the WRC. Specifically the workplace in question had a number of flammable materials and maintaining a strictly enforced designated smoking area was a term of the employer’s insurance.

The Respondent provided further submissions on the potential issues relating to data protection in line with the case of Doolin v Data Protection Commissioner [2022] IECA 117. The Respondent’s CCTV policy explicitly provides for CCTV use in disciplinary hearings and as such can be distinguished from Doolin. The use of said data was entirely lawful. In any event the Complainant freely admits to smoking in his van so the reliance on the CCTV is not at issue.

Mr Stephen Whelan, Bakery Production Manager, attending the hearing and gave evidence for the Respondent under affirmation.

The incident of the Complainant’s smoking had been brought to his attention by health and safety officer who regularly checked cctv cameras. An image had been captured of the Complainant smoking.

This image was not reviewed by him until the 14th of July 2021 when he met with Complainant and Tommy Walsh.  The meeting was an investigation meeting to gather facts. The Complainant was informed of his right to representation before going into the meeting.  He put the allegation to the Complainant that he had been seen smoking in his van on the CCTV, the Complainant admitted doing so. He failed to provide any reason for his not following the policy and never claimed he had permission. It was decided to suspend Complainant on full pay, pending a full investigation.

The Complainant was invited to an investigation meeting on the 19th of July to review cctv footage. He decided against bringing a workplace representative and instead brought a neighbour as a witness. At this point the Complainant handed in a letter objecting to his suspension. This letter did not reference him having permission to smoke.

A further investigation meeting was called on the 23rd of July. The Complainant was represented by Ms Duffy King, a SIPTU official. He was showed the cctv footage again. In this meeting the Complainant suggested he had permission from Mr Trevor Glavin, who was in charge of the site, to smoke in his van. 

Mr Whelan subsequently met with Mr Glavin. Mr Glavin was clear, on one occasion, a year before the incident, he had given the Complainant a waiver to smoke in his van but at that time it was parked right beside the designated smoking shed.

Under cross examination Mr Whelan clarified that the Complainant was brought up from the floor on the 14th of July to review cctv footage. He was told he could bring a colleague from the floor. Mr Whelan was further cross examined on the conditions within the smoking shed, the safety measures adopted during the covid-19 pandemic and the reasons he preferred Mr Glavin’s evidence to him regarding the issue of permission over the Complainant’s.

Mr James Foley the Complainant’s Group Dispatch Manager attended the hearing and gave evidence under affirmation.

On the 5th of November Mr Foley convened a disciplinary meeting. He had been provided a copy of Mr Whelan’s investigation report. The Complainant attended the hearing represented by Ms Duffy King. They read through the investigation report and were given an opportunity to respond.

In the hearing the Complainant continuously brought up the issue of permission. Mr Foley understood that MR Glavin had given him permission as a one off. The Complainant accepted this however in the hearing he further indicated that there was a second instance where Mr Glavin had given him permission to smoke in his van due to his concerns about smoking in the shed during the Covid-19 pandemic.

Mr Foley then sought to Interview Mr Glavin again and put this to him and it was denied.

Based on severity of the incident the Mr Foley determined that it was appropriate to dismiss the complainant. The smoking area is where it is due to safety reasons, it is away from any explosions risks. There are several fuel tanks and flour silos on site. In the past he is aware of three other incidents where employees have been dismissed for smoking in the wrong place.

Mr Foley noted that there was a diesel tank approximately 20 yards from where the Complainant was smoking. It was approximately 50 yards from the boiler house and 75 yards from the flour silos.

All other sanctions were considered but due to the severity and the offence only one action could be arrived at.

Under cross examination Mr Foley stated that he preferred Mr Glavin’s evidence because he found that it was consistent whereas the Complainant’s story changed throughout the process.

It was also unbelievable to him that the site manager would ever have given such a permission.

Mr James Yarr, Operations Director gave evidence under affirmation.  He oversees two manufacturing sites on behalf of the Respondent.

On the 20th of January he heard the Complainant’s appeal. The Complainant submitted 5 separate grounds of appeal. Mr Yarr addressed these one by one in the hearing.

The Complainant considered the sanction of dismissal it was too severe. Mr Yarr reviewed the decision and considered the reasons given for the decision. Mr Yarr also mentioned in his evidence that the Respondent had brought in a third party to do a risk assessment on site, there is a serious risk of fire, explosion and death if there is an ignition source at the wrong place. As such the decision to dismiss the complainant was proportionate in these circumstances.

The Complainant also suggested that this sanction was not followed in every case. Mr Yarr disputed this and referred to another case where a member of staff was dismissed after having been seen on a  walkway smoking. The Complainant was not treated differently to any other people. During the course of the process the Complainant and his rep reported a similar incidence to management as they had spotted a member of staff leaving site with a cigarette lit. However CCTV footage was reviewed and it was clear that the cigarette was not lit. The Respondent talked to individual who was clear that it was not lit until he got outside the gate.

The Complainant also pointed to the permission allegedly provided by Mr Glavin. Mr Yarr considered that Mr Glavin denied this and the matter was one persons’ word versus the other. On the balance of probability Mr Glavin was in charge of managing people on site and he had no reason to lie. Mr Glavin had long service with the Respondent and Mr Yarr ultimately preferred his account. There was never permission given before.

The Complainant had referred to the length of process. Ultimately it took 5 months which was longer than anyone would have liked. As the process spanned the summer was lots of annual leave at the time. The bakery was also stretched because of covid and staff not working longer shift cycles. Some dates the Complainant’s rep was not available for. Mr Yarr considered the delay as out of the parties’ hands. 

Under cross examination Mr Yarr clarified that the third-party review of the Respondent’s health and safety happened in sometime in 2020 and 2021. The Respondent updated the health and safety statement. He thinks before the Complainant was dismissed. It is available to all staff in a ring binder in the upper level of the bakery.

In follow up Mr Hyde clarified with Mr Yarr that there was a well-established policy regarding smoking in the Respondent company and this was unaffected by the safety statement.             

The Complainant’s representative provided submissions on behalf of the Complainant.

The Complainant had been living with and caring for his mother, who is in her eighties, since the onset of covid-19. As a result of her health the Complainant had sought and had been given permission by the Respondent’s site manager, Mr Glavin, to smoke in his van rather than in the designated smoking shed which he found too crowded to be safe during the pandemic.

The Respondent dismissed the Complainant while entirely ignoring his rights to fair procedure and the provisions of SI 146/2000. The Complainant was not informed of his right to Union representation at any stage of the process.

The Respondent’s actions were totally disproportionate and failed to adhere to the spirit of the Respondent’s own disciplinary policy which states that it aims to correct staff who breach policy and get them compliant again. Instead the Respondent chose to dismiss the Complainant in the first instance.

Complainant gave evidence under oath.

He had worked for the company for 20 years. Over this entire time he had only ever gotten a once off verbal warning. He had never been disciplined until his dismissal.

He explained how went into to Mr Glavin’s office and asked him permission to smoke in his van, because of covid and his potential to bring covid home to his mother. He had been given permission and was never asked to only smoke beside the shed.  

The Complainant explained that the smoking shed relatively small and frequently full, there was little governance on how to handle smoking there during covid.  Attention was never drawn to any policy or plan put in place.

He had given 20 years in service and had been an active workplace rep, he thought he been given permission partly out of having accrued some respect considering his service. Mr Glavin had given him permission but he knew he wouldn’t have been allowed to let him smoke kept a low profile while doing so.

When he was shown the cctv footage he owned up because he never thought he was at risk of dismissal. He thought he had permission.

In hindsight he believes he was targeted by the Respondent moving the positioning of the cctv cameras. 

Under cross examination the Complainant stated that he didn’t think his actions were dangerous. He was in his van and had permission.

There was significant confusion on the part of the Complainant when he was questioned about having received the permission exactly and when he first brought it up as a defence.

The Complainant confirmed there were other incidents of people getting dismissed for smoking. One person was walking out the walkway which no one was allowed to do. Two younger workers were dismissed for smoking by the bins. There was other occasion however the Complainant viewed it as retaliation for something else.

It is common case that the Complainant has the requisite service to be covered by the protections afforded under the Unfair Dismissals Act.

Section 6 of the Unfair Dismissals Act outlines that any dismissal is an unfair dismissal contrary to the act, unless there are substantial grounds justifying the dismissal. It is for the Respondent to prove that such grounds exist and that they were the cause of the dismissal.

The Respondent argues they were entitled to dismiss the Complainant as Subsection 4 (b) provides that a dismissal shall not be an unfair dismissal if it results wholly or mainly from the conduct of the employee.

Reasonableness

In examining the reasons given for the Respondent’s decision to dismiss, i.e. the conduct of the employee, the approach I am required to take is well established. As outlined in British Leyland v Swift and endorsed in this jurisdiction in Bank of Ireland v Reilly, my role is not to take over the role of the Respondent consider whether in my view that the conduct of the Complainant ought to have resulted in his dismissal, but rather whether a reasonable employer might have reasonably dismissed him for the reasons given. An element of discretion is given to the Respondent in this approach by recognising that a band of reasonableness exists within which one employer might reasonably decide to dismiss but another might reasonably decide not to.

The reason the Respondent has given for the dismissing the Complainant relates to him smoking in his van and not in the designated area. The Respondent is clear that they have determined that the Complainant was doing so without permission. Leaving aside how this position was arrived at it is important for me to clarify whether this decision would within the band of reasonableness in of itself.

On this point I agree with the Respondent. They operate a plant with combustible materials. These risks are spread out across their site and are not contained in one area. It is therefore within the band of reasonableness for them to ban smoking outright, aside from one specific area, and to treat breaches of this policy as serious conduct warranting dismissal. In the hearing the Respondent provided credible oral evidence that they had dismissed other people for this same offence and this was something the Complainant confirmed.

For transparency, I would note that once I had concluded the Respondent’s position on this issue was genuinely and consistently held I took the view that I ought to give them a degree of deference as to whether their policy was proportionate and necessary for the purpose of maintaining safety at work. They are presumably best placed to determine the level of risk in the context of their own plant.

Process

Section 6 requires the Respondent to demonstrate not just that “substantial grounds” exist which establish that the dismissal was within the “band of reasonableness” but that the dismissal occurred because of those “substantial grounds.”

As such a key issue to be determined in any Unfair Dismissal Act case is whether the “substantial grounds” put forward by the Respondent were properly arrived at, that is arrived at following a fair process. I refer to the High Court decision in Loftus and Healy v An Bord Telecom.  This case concerned an employer’s decision to dismiss two employees because the employer believed that they had assaulted a third employee. In his decision Mr Justice Barron concluded that the assault had occurred. He then considered a number of potential deficiencies the process which the employer had undertaken in dismissing the employees. In doing so he stated as follows: “The question however is not whether the Plaintiffs were deprived of procedures to which they were entitled, but whether the denial to them of such procedures is such that the Defendant must be deemed to have failed to establish the assault as the whole or main reason for justifying their dismissal.” I agree that I ought to consider matters relating to the procedures followed in this case with regard to the above approach.

There are a number of serious defects in the process followed by the Respondent.

The first involves the invitation of the Complainant to the meeting of 14th of July. The CCTV footage of the Complainant smoking had been reviewed by the Respondent two days previously. The Complainant was then called into a meeting room with two members of management. He was given no prior warning, no notice that he was at risk of dismissal and only told he could bring a colleague from the floor. He was then shown the cctv footage and asked to confirm if that was him smoking. While the Respondent has since tried to characterise this meeting as some sort of pre-investigation meeting it was clearly an interview. Evidence was put to the Complainant and he was asked a key question about it. The person who conducted this interview, Mr Stephen Whelan then suspended the Complainant. Mr Whelan went on carry out the official investigation on behalf of the Respondent.

The second issue involves the defence put forward by the Complainant, specifically that manger over the entire site, Mr Glavin had given him permission to smoke outside the designated shed. There was much evidence oral given and extensive cross examination regarding this issue at the hearing. During the course of this evidence one issue became clear. If Mr Glavin had given the Complainant permission then it would have been a serious derogation from company policy and likely would have amounted to serious misconduct on the part of Mr Glavin. As such Mr Whelan was in the position of either finding against his subordinate or his superior in the organisation. Noting that the legislation places the burden of proof on the Respondent in establishing that the investigation of the facts was appropriately independent I am of the view that Mr Whelan should not have continued to carry on the investigation once the Complainant stated he had permission from Mr Glavin. I would stress that I do not make this finding in anyway suggesting that Mr Whelan was in any way dishonest in the course of the investigation but that he was put in a position by the Respondent which ought not to have been. While I understand that it would have been an inconvenience to restart the investigation with a more appropriately placed member of management in the lead the Complainant was at risk of dismissal and was entitled to an appropriately independent investigation.

Returning to the legislation and the above mentioned case law. At the time of the dismissal the Respondent failed to properly establish substantial ground existed justifying the dismissal of the Complainant. While they had evidence that he smoked on site they had not properly investigated the Complainant’s claim that he had permission for this. While I note that the decision maker Mr Foley, who may have been in a better place to make a finding in this regard than Mr Whelan, also asked Mr Glavin whether permission was given this carried out as part of his own investigation in tandem with the disciplinary hearing. Noting that Mr Whelan’s report was relied on by Mr Foley I do not think this remedied the situation.

Redress

Section 7 of the Unfair Dismissals Act outlines the options for redress that I must considers. The Complainant is not seeking reinstatement or reengagement since he has secured alternative employment. He was dismissed on the 17th of December 2021 and regained employment in late September 2022.

As such I will limit considering redress to Section 7.1.C, that is financial loss. 7.1.C states at subclause (i) if the employee incurred any financial loss attributable to the dismissal, paymenttohim by the employer of such compensation in respect of the loss (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) as is just and equitable having regard to all the circumstances,

Section 7 goes on to state that in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.

Sub section 3 then defines “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

At the hearing the Complainant had no submissions regarding his financial loss and attempts to mitigate that loss and provided supplemental submission which dealt with his financial loss arising from actual loss or prospective loss of income attributable to the dismissal. I have no submissions on loss or diminution of his loss under the Redundancy Payments Acts or superannuation. 

The Complainant has submitted that his salary with the Respondent is €695 per week. His complaint form states €670 per week.

His current employer pays him approximately €543 per week. He has an ongoing loss of approximately €150 per week.

Regarding his time out of work the Complainant has submitted figures totalling €17,647. However these figures deduct social welfare payments something I am required to disregard by Section 7.2A.

Regarding his attempts to mitigate loss the Complainant was significantly hindered by his long service with the Respondent. He had over 20 years with the Respondent and has not developed computer skills. The last time he had gotten a job the main way to apply involved calling around to various premises, not applying online.

The Complainant submits that he took classes with Obair and enlisted the assistance of his daughter in applying to jobs. He applied for jobs through the south Dublin county partnership. He has provided, by way of submission, a number of job adverts that he states he applied for and two rejection letters.

The Respondent points out that the Complainant failed to give oral evidence on his attempts to mitigate loss and the burden was on him to do so. As such I am limited to what he has evidenced in his supplemental submissions which is not very much.  

While I agree with the Respondent’s overall position that the Complainant has failed to prove that he attempted to mitigate his loss I do accept aspects of the Complainant’s submission. In particular that he was at disadvantage returning to the workforce after 20 years with no computer literacy. I also am satisfied that he was engaging with his local authority’s partnership programme and the department of social affairs. In short, I am of the view that while he has not proved he has mitigated his loss to the high standard required, I am of the view that he made some substantial efforts in the context of the opportunities open to him.

The Respondent has also argued that the conduct of the employee contributed to the dismissal, with reference to 7.2.b. and I agree with the Respondent on this point as well. Notwithstanding my concerns about the Respondent’s investigation of the Complainant’s defence that he had been given permission by Mr Glavin to smoke in his van, from the Complainant’s own evidence it appears he was well aware that what he was doing was contrary to company policy and that even if Mr Glavin had given him permission it was still contrary to company policy. In other words, I think if the Complainant’s defence had been successful the Respondent would have still been well within their rights to issue a disciplinary sanction short of dismissal.   

The Respondent has not raised any issue with the Complainant’s figure of €693 per week gross salary. The Complainant’s loss of salary for while he was out of work comes to approximately €25,000, the Complainant has an ongoing loss which in the circumstances I will put at €5000, leading to a combined figure of €30,000. 

Having regard to the above factors and in particular Sections 7.2.b and Sections 7.2.f I am of the view a reduction of 50% is appropriate and that an award of €15,000 is just and equitable having regard to all the circumstances.

I find that the Complaint is well founded and award the Complainant €15,000