EMPLOYMENT APPEALS TRIBUNAL
Litec Moulding Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B.L.
Members: Mr. D. Morrison
Mr. T. Gill
heard this claim at Carrick-On-Shannon on 24th June 2016 and at Sligo 4th October 2016
Claimant: Mr Shane McDermott, Mullaneys Solicitors, Thomas Street, Sligo
Respondent: Mr Terry McNamara, IBEC North West, 3rd Floor, Pier One, Quay Street, Donegal Town, Co Donegal
The respondent produces plastic injection moulded components for use in aerosol valves in cosmetics, food and technical products. The Group produces over 2 billion valves each year, making it one of the major players in the aerosol valve industry. The respondent employs 60 people.
DOS was a moulding technician and told the Tribunal that a shift system operates at the plant operating as follows: three shifts Monday to Friday, 8 am to 4.15, 4 p.m. to 12 midnight and 12 midnight to 8 am and two shifts operate at weekends – 8 am to 8 pm and 8 pm to 8 am.
The claimant’s role was that of product controller/machine operator. On Sunday16th November 2014 the claimant reported for his 8 am shift.
At around 1 pm that day the witness walked into the Quality Control office and found a booklet open on his desk. This booklet held non-conforming product reports. Sixty six thousand defects had been quarantined by the claimant at 12 noon and he had partly completed a report quarantining parts but never provided the necessary reasons for doing so. The protocol in place for such instances is that DOS is immediately notified and a report is filled out in conjunction with him. He subsequently asked the claimant to come into the QC office and show him what was wrong with the parts. The claimant removed the parts from a plastic bag. He looked under the microscope and was unable to determine what the problem was.
He then passed them to other QC employees and they in turn could not see what was wrong with them. The claimant handed them back DOS. At this stage the witness thought the claimant was under the influence of alcohol. He did not want the claimant to return to the floor and kept him the QC room, so as he would not do or cause any more harm.
In around 5 pm that evening he called all staff into the QC room and so as not to single anyone out, spoke to them about turning up unfit for work under the influence of alcohol. Anyone found not to be compliant in the future would be instantly dismissed.
Later he had a conversation with the claimant at the rear of the factory and enquired if the claimant was ok. The claimant responded that he had been drinking the night before, said he was sorry and that it would not happen again. The witness enquired if the claimant had an issue with alcohol and if so, did he require any help. The claimant responded that he wished to stop drinking. The claimant returned to his shift for that day.
At the end of the claimant’s shift his demeanour changed. He gave the witness a hug and passed some jovial remarks. One of the employees who had been working that shift gave the claimant a lift home.
The witness said that the claimant had been a good worker. He said he was in a difficult position but the following Tuesday (18th November 2014) he reported what he considered a serious incident to his manager, TB.
DG gave evidence of working with the claimant on 16th November 2014. He met the claimant at 7.55 a.m. and he thought the claimant was under the influence of alcohol at that time. He also thought the smell of alcohol was stronger from him that evening. All employees were called into the QC room that evening and reminded by DOS that anyone consuming alcohol at work would be dismissed.
TB, Production Manager during the claimant’s tenure gave evidence. She has overall responsibility for the operation of the business.
She gave evidence of visiting the factory on 16th November 2014. She said she often visited the factory on Saturdays and spent about 20 to 30 minutes there. She noticed the claimant in the QC office on the day in question and waved in. The claimant had initially been an agency worker and then was subsequently employed by the company on a contract basis.
On Tuesday, 18th November 2014 DOS asked to speak to her. He proceeded to tell her verbally about the incident involving the claimant on 16th November 2014. The witness asked DOS to put it in writing and she took advice from H.R.
On 20th November 2014 TB met with the claimant and DOS. She asked the claimant for his version of events of 16th November 2014. The claimant confirmed that he had been drinking until approximately 3am on the Saturday night, had not been feeling well and had not eaten anything. When she asked the claimant about the smell of alcohol during the day the claimant stated that he had been cleaning the visual aid equipment with the alcohol based wipes and this could have caused some of the smell. The claimant denied that he had consumed alcohol during the day. The claimant stated that he did have an alcohol problem.
The witness viewed the situation as being dangerous and said that the claimant could have caused injury. She was concerned for his own safety and the 5/6 employees working the weekend shift.
She subsequently met three other employees who had worked that shift and took their statements. She felt matters should be taken further and consulted HR. She concluded that the matter be taken to a disciplinary hearing which took place on 26th November 2016. Witness statements were taken and the claimant had AF as a representative on the day.
He told them that he had been drinking to 3am on the night before his shift, he had problems with a family member and hadn’t slept or eaten before his 8am shift. TB considered all the evidence and statements she had been given, also the production records for the day and felt she had no option but to dismiss the claimant as he could have caused serious injury to himself or others.
JR who heard the appeal asked that the claimant bring a detailed breakdown of any mitigating circumstances to the appeal hearing. The claimant told him he was sorry, he’d made a mistake and it wouldn’t happen again. He made no reference to the day of the incident and had nothing to challenge any evidence which lead to his dismissal. JR felt he had no option but to uphold the original decision.
The claimant told the Tribunal that on the night prior to the incident he had been in the pub until around 1am, went to bed around 3am and was at work around 7.45am the following morning. He spoke with DG before his shift and told him he’d had a few drinks the night before, DG asked if he was ok for work and the claimant said he was. Around midday the claimant found some bad parts and reported it to DG who started shouting “why so many rejects”.
Later that evening DG asked all staff to a meeting where they were all told it was inappropriate to turn up for work with a smell of alcohol. The claimant told the Tribunal he had not been asked to stay in the QC room earlier in the day and that TB popped in around 6pm and just said “hello”. He also said that he met with DG around 7pm and told him he was sorry for turning up to work with a smell of alcohol, he had family issues and it would not happen again.
After his night shift ended on Wednesday 19th November he was told somebody wanted to speak with him, he went to TB’s office and she was there along with DG. He was asked about the smell of alcohol and again he told them he had been to the pub and there were family issues which left him stressed. He also said that he used alcohol wipes in the machine room and this may have contributed to the smell. He was suspended that morning and never got back to work. Asked about the company hand-book he said he may have been given it but lost it. He didn’t read it. He said he was capable of doing his job on the day in question, Asked about driving home that evening he said that he got a lift because he was tired.
The Tribunal carefully considered all the evidence adduced and the submissions in this case. The claimant was dismissed for gross misconduct when he presented himself for work in a state of incapacity while under the influence of alcohol. The claimant had a position of responsibility as a machine operator in a hazardous work environment with machines processing very hot materials, and high pressure plastics being produced at temperatures three times the boiling point of water, which equals 280-300 degrees centigrade.
The respondent had a duty of to ensure that the health, safety and welfare of all its employees should not be compromised. In the employer hand-book, the rules covering Gross Misconduct state, “incapacity at work or poor performance caused by intoxicants or drugs” constitutes gross misconduct liable to summary dismissal.
The Tribunal finds, in all the circumstances, that it is reasonable for the respondent to dismiss the claimant for gross misconduct. The claims under the Unfair Dismissals Acts, 1977 to 2007 and the Minimum Notice and Terms of Employment Acts 1973 to 2005 are therefore dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal