EMPLOYMENT APPEALS TRIBUNAL
against the recommendation of the Rights Commissioner in the case of:
Killarney Waste Disposal Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr J. Hennessy
Mr F. Dorgan
heard this appeal at Killarney on 19th April 2016
Appellant(s) : Mr. Timothy O'Leary, O'Leary & Co., Solicitors, The Old Coach House, Countess Road, Killarney, Co. Kerry
Respondent(s) : Ms Fiona O'Connor, Tom Smyth & Associates, 61 St Marys Road, Midleton, Co Cork
This case came before the Tribunal by way of an appeal by a former employee against a recommendation by a Rights’ Commissioner reference r-147355-ud-14.
The determination of the Tribunal was as follows:
The respondent contended that the appeal against the Rights Commissioner recommendation under the Unfair Dismissals Acts was lodged with the Tribunal outside the prescribed statutory six-week period and that accordingly the Tribunal does not have jurisdiction to hear the appeal.
Determination on Preliminary Issue
The claim for unfair dismissals was heard by a Rights Commissioner on 16 December 2014 and the recommendation was signed on 8 April 2014. The Tribunal accepts that due to an error that recommendation was sent to the wrong representative on behalf of the appellant. Having regard to the contents of the letter of 27 April 2013 from the LRC to the appellant’s representative, enclosing the original recommendation from the Rights Commissioner, the Tribunal is satisfied that 28 April 2015 was the earliest date on which the recommendation could have been communicated to the appellant. Accordingly, the appeal having been lodged with the Tribunal on 8 June 2015 it is within the statutory six-week time limit for lodging such an appeal.
The appellant worked for the respondent, a waste disposal company, from May 2008 to March 2014. He worked as a picker on an assembly line and was rostered to work the 4.00pm to 2.00am shift on 13 March 2014.
The evidence of OM (the operations manager of the respondent company) was that on 13 March 2014 the appellant came to his office at around 4.00 pm, with a translator who informed him that the appellant could not work his shift as he was drunk. OM detected ‘a strong smell of alcohol’ from the appellant, told him to go home and witnessed him ‘staggering’ off the premises. The appellant explained that due to serious family problems he had been drinking heavily over the weekend and should not have come to work. The appellant mentioned his previous good record in the employment. In cross examination OM accepted that the contract of employment given to all employees was in the English language.
By letter of 11 March 2014 the respondent’s accountant invited the appellant to an investigation meeting the following day and enclosed the statements of three witnesses to the events of 11 March. At the investigation meeting the witness statements from OM, LS and another about the events that occurred at work two days previously were read to the appellant in Polish. The appellant referred to his good record with the respondent and explained that he had family problems at this time. He was suspended on full pay pending the results of investigation.
The evidence of LS (the line supervisor) was that the appellant arrived for work on 10 March 2014 but that he felt sick and wanted to go home. LS sent him to OM and he later returned saying OM said he could go home if there was cover for him. As LS did not have sufficient workers the appellant had to stay and work. Shortly after this the appellant told LS he was drunk and had to go home and then walked out. In cross examination LS accepted that if cover had been available the appellant would have been allowed to go home.
The owner of the respondent company (OC) conducted the disciplinary hearing on 19 March. OC explained that, given the nature of work performed by the company and the machinery in use, there is a serious risk to Health and Safety. For a member of staff to present himself for work while under the influence of drink was an act of gross misconduct and he felt obliged to terminate the appellant’s employment. He considered other sanctions but the respondent had zero tolerance of such behaviour. The letter confirming his dismissal informed the appellant that he could appeal the decision to dismiss within 10 days but the appellant never took up this option. The appellant again explained that he had family problems and put forward his good record with the respondent over the previous five years and eight months.
The appellant position was that he arrived for work on 10 March 2014 for his shift which commenced at 4.00pm. He went straight to LS saying he was feeling unwell and wanted to take the day off. LS sent him to OM who in turn said if LS had enough cover for the shift the appellant could go home. As there was no cover available, LS told him he had to work his shift. Approximately 30 minutes later the appellant again approached LS saying he was too unwell to continue and had to go home. He left the premises. The appellant insists he was not drunk at work and had stopped consuming alcohol the previous night. He gave evidence that the only reason he appeared for work was to look for the day off. At the investigation meeting he was just asked why he had gone home on the 10March.
The appellant was dismissed for being under the influence of drink at work which constitutes gross misconduct in the company handbook and warrants summary dismissal. There were some inconsistencies between the various versions given of the incident that occurred on 10 March 2014.
The evidence is that the appellant brought it to the respondent’s attention that he was unfit for work. He went to his workplace to ask to be excused and explained that he was sick because he had been drinking over the weekend due to difficult family issues. These important facts were ignored at the investigation and disciplinary meetings.
The Tribunal accepts, although it is not included in OM’s statement, that OM had told the appellant that he could go home if LS had sufficient cover. On that basis LS did not allow the appellant to go home and shortly thereafter, being unable to continue at work, the appellant left to go home. In addition, LS accepted that if he had sufficient cover he would have allowed the appellant to go home. The Tribunal accepts the appellant’s evidence on these facts as it believes it very unlikely, that had OM told the appellant to go home, that he would have engaged with LS as he did, subsequent to his conversation with OM. The Tribunal is aware of the importance of health and safety issues in all workplaces and in particular in one such as the respondent’s but the inescapable fact is the appellant did not want to work on 10 March 2013.
For these reasons the Tribunal finds the dismissal unfair. Accordingly, the appeal under the Unfair Dismissals Acts 177 to 2007 succeeds. Having taken the appellant’s contribution to his dismissal and his failure to mitigate his losses into account the Tribunal awards the appellant €15,000 under the Unfair Dismissals Acts 1997 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal