EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Employee - claimant WT940/11
Employer - respondent
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. McAveety
Members: Mr P. Pierson
Mr O. Nulty
heard this claim at Longford on 13th June 2013, 6th November 2013and 7th November 2013
Claimant: Mr Eamon Cronin BL instructed by Mr. John J Quinn, John J Quinn &
Company, Solicitors, Earl Street, Longford
Respondent: Ms Rosemary Mallon BL instructed by Smyth O'Brien Hegarty, Solicitors, 24
Lower Abbey Street, Dublin 1
The respondent company is a meat processing group and operates a number of factories throughout the country. The claimant was employed as maintenance fitter/technician at one of the respondent’s production processing plants in the midlands. The plant has 200 employees. The site manager, JW of that plant gave evidence that the claimant was employed on a maintenance team which operated an on call rota system at weekends. The claimant was employed as part of that system from the commencement of his employment in 2009 and it was a regular occurrence that members of the team swapped weekend duty as part of the rota system to suit their needs. The claimant maintained mincer and grinding machines as part of his normal duties. It was a normal occurrence for maintenance technicians to be called out on average of twice monthly and the employees were paid for their on-call work as part of their normal remuneration. While time in lieu was given for Saturday working it was not formally recorded.
HR train and support Operation Managers throughout the company. HR ensures managers are kept up to date. Refresher courses are provided every eighteen months. All managers are trained to carry out investigations and conduct disciplinary and appeal hearings. HR has no involvement in carrying out disciplinary investigations and hearings.
In around October 2010 there was a redevelopment of the company and new work patterns were introduced to protect the business. JW had a protracted discussion with the claimant regarding the introduction of new shift work. The claimant sought a shift allowance but this was declined.
RW who worked as part of the maintenance team gave evidence that being on call for the company was part and parcel of the job. Every third week a member of the team was on call. Issues dealt with varied. There is flexibility on the team and they often swopped weekend on call duty.
DN manages the maintenance team. The team has responsibility for the upkeep of the machinery. DN draws up the rota for the team.
In early July 2011 DN informed JW that the claimant was unfit for work. JW subsequently carried out an investigation and took statements from several staff members and also took a statement from the claimant. The claimant was invited to a disciplinary meeting on 6 July which was chaired by DM. Following that meeting he was suspended for two weeks without pay. The claimant was found to have been in breach of company rules in (1) arriving late for work (2) at work under the influence of alcohol (3) failed and or neglected to operate factory machinery/equipment in a safe manner (4) failing and or neglecting to wear appropriate PPE while on the factory floor on 4 July 2011. JW had no input into the decision to suspend the claimant. The claimant returned to work following his suspension.
The claimant was on call over the weekend commencing 23rd September 2011. DN received a call from the respondent’s security officer. He had been trying to contact the claimant before he went on site but was unsuccessful. He sent the claimant a text message. The claimant arrived some time later. The claimant was uneasy on his feet, and it was obvious to DN that the claimant had been under the influence of alcohol.
On Sunday 26th September 2011 DN received a call from RW. The security guard had called him as he could not contact the claimant. Some time later the claimant arrived at the site.
JW suspended the claimant from the site on 27th September 2011. As the claimant entered the site later that evening JW asked him to leave the site as he was suspended from duty.
JW commenced an investigation into these allegations and as part of that process wrote to the claimant on 27 September 2011. This letter was opened to the Tribunal and a total of three allegations were put to the claimant. The claimant was suspended on full pay pending the investigation. JW took a number of statements from employees as part of his investigation. He presented the findings of his investigation and the matter progressed to a disciplinary hearing.
SD, Site Operations Manager conducted the disciplinary hearing on 4th October 2011. JW attended the disciplinary hearing but had no part in the decision making process. SD was required to adjudicate on the following allegations: (1) the claimant failed to answer his phone on the night of 23rd/24th September 2011 while on call, (2) upon arrival the claimant was under the influence of alcohol, (3) on 24th September 2011 the claimant failed to answer or return a telephone call to the security guard on duty (3) on 27th September 2011 while suspended from duty pending an investigation, the claimant entered the company without authority or permission. In considering the appropriate disciplinary sanction SD took into account the evidence adduced and the claimant’s prior disciplinary record. He considered the claimant’s behaviour as serious misconduct for which the appropriate disciplinary sanction was dismissal.
By letter dated 7th October 2011 the claimant was dismissed.
The claimant appealed the decision to dismiss him and GB, Group Operations Director conducted the appeal hearing on 29th November 2011. JW was also in attendance together with LC, note taker. The claimant was accompanied by a union official. The claimant admitted to having consumed alcohol. This was totally unacceptable. It was a health and safety issue for employees and the factory. Health and safety was foremost in GB’s mind. This was the second time the claimant had arrived at work under the influence of alcohol. GB followed procedures and was as fair as possible. GB used his own notes while making his decision based on what he had heard at the appeal hearing.
GB reached his decision based on the evidence and risks to both other employees and to the claimant’s own personal safety within the plant while the claimant was under the influence of alcohol and felt he had no alternative but to uphold the decision to dismiss the claimant from his employment.
The claimant commenced employment on 22nd June 2009 as a maintenance fitter. He was furnished with a contract of employment. He was part of the maintenance team, DN, Maintenance Manager and RW. His contract of employment stated his normal working hours as forty hours per week. At his interview he was told he would have to work the odd Saturday and do call outs.
After a few weeks he was on call. He was paid two hours at €25.00 per hour for calls outs and this was recorded on his pay slip. His rota was one week on and two weeks off for call outs. He was on call three to four nights a week. His hours of work were 6 am to 4 pm in the first week, 7am to 5 pm in the second week and 8 am to 6 pm in the third week. While his contract of employment stated forty hours per week he was working a fifty hour week. No time in lieu was given to him. He got a pay increase of €3,000.00 in January 2010.
He was provided with a mobile phone a year after his employment began. After a disciplinary hearing in July 2010 the claimant was issued with a final written warning following his failure to answer his phone while he was on call.
In October 2010 the respondent changed the working pattern to two shifts, 6 am to 2 pm and 2 pm to 10 pm. The claimant objected to these changes. JW told him he could work the hours or there would be no job for him. The claimant was not paid a shift premium.
Sixty to seventy per cent of call outs related to pumps breaking down or the boiler not heating. These could be repaired on site. The claimant never did electrical work.
The claimant socialised in a public house on 3rd July 2011. He was on call that weekend. He reported for work on 4th July 2011 and contended that he was available and capable of working having drunk three to four pints the night before. When he arrived at work DN sent him home and told him to return for the evening shift. He was suspended with full pay.
The claimant attended a disciplinary meeting on 6th July 2011 which was chaired by DM. Allegations against the claimant were that on Monday, 4 July 2011 he arrived late for work under the influence of alcohol, that he failed to operate factory equipment in a safe manner and that he also neglected to wear the appropriate PPE while on the factory floor. The claimant held his hands up and said he was wrong. By letter dated 6th July 2011 DM suspended the claimant for two weeks, issued him with a final written warning and stated that if he continued to breach company rules or policies he could be subjected to further disciplinary action up to and including dismissal. The claimant was issued with a right of appeal.
On the night of 23rd/24th September 2011 the claimant was on call. He had been socialising in the local pub. His phone did not ring on 24th September 2011. However, he received a text message from DN in the early hours of the morning. He subsequently telephoned the security guard on duty and drove into the premises. DN was on site when the claimant arrived. The claimant spoke to him. There was a compressor problem that could not be fixed so the claimant returned home. On Sunday, 25th September 2011 he arrived at the premises at approximately 10.04. The security guard had been trying to contact him. The security guard managed to contact RW who attended to matters. The claimant returned home some time later.
The claimant worked his shift on Monday 26th September 2011. The following day JW accused him of being under the influence of drink on 23rd/24th September 2011. The claimant was suspended from duty. He sought advice from a union official. Later that evening he drove to the site to photocopy some documents.
He was invited to a disciplinary hearing on 4th October 2011. The meeting was chaired by SD, Operations Manager. JW was also in attendance. The allegations against the claimant were, failure to answer his phone on 23rd/24 September, being under the influence of alcohol on the morning of 24th September 2011 and again failing to answer his phone on Sunday, 25th September 2011. The claimant said he was not drunk. He did not normally drink more than three or four pints. The claimant was subsequently dismissed on 7th October 2011.
The claimant appealed the decision to dismiss him and his appeal was heard by GB, Group Operations Director. The claimant said that it was acceptable to have a few pints while on call. GB took time to review the evidence presented at the hearing. Based on the evidence and risks to other employees and to the claimant’s own personal safety while under the influence of alcohol GB upheld the decision to dismiss the claimant. He initially verbally communicated this to the claimant and to his union representative. By letter dated 29th November 2011 the claimant’s employment was terminated.
While the claimant agreed that the respondent followed proper procedures he was unhappy that JW had been in attendance at the disciplinary and appeal hearings.
The claimant has worked part time 40 to 50 days since the termination of his employment.
The Tribunal carefully considered the evidence adduced during the course of this three day hearing. The claimant had been at work under the influence of alcohol on 4th July 2011 and the company conducted a disciplinary hearing. At that hearing the claimant admitted he had consumed alcohol. The respondent subsequently advised the claimant on 6th July 2011 that if he continued to breach company rules or policies he may be subject to further disciplinary action up to and including dismissal. At this time the claimant had already been on a final written warning.
On the weekend of 23rd/24th September 2011 the claimant, while on call, arrived on site under the influence of alcohol. As a consequence the respondent engaged in a disciplinary process which resulted in the claimant being dismissed. During the process the claimant admitted that he consumed alcohol.
The Tribunal finds that the process engaged in by the company was fair in all the circumstances and the sanction of dismissal imposed by the respondent was reasonable and fair. The Tribunal finds that the claimant was not unfairly dismissed and accordingly his claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
The claims under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and the Organisation of Working Time Act 1997 also fail.
Sealed with the Seal of the
Employment Appeals Tribunal