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Dismissal Within the Band of Reasonableness for Breaching Smoking Ban, but Deemed Unfair Due to Investigation

In the recent case of Darren Kiernan v Joseph Brennan Bakeries ADJ-00039331 the Complainant was dismissed for smoking in his personal van in the Respondent’s parking lot, rather than in the designated smoking shed. The Complainant referred a complaint to the Workplace Relations Commission (“WRC”) under the Unfair Dismissals Acts 1977-2015 (“the Acts”).

Facts: The Complainant was employed by the Respondent for nearly twenty years as a General Operative; from 17th July 2002 until 15th December 2021. On 12th July 2021 Mr. Joe McDonald, a Manager with the Respondent, was conducting a regular review of the CCTV in the Respondent’s car park and discovered the Complainant was smoking in his van the previous day. On 14th July, the Complainant was called from the floor to review the CCTV footage with two members of management. The allegation of smoking in his van was put to the Complainant, who confirmed he was the person seen smoking in the van. He was placed immediately on paid suspension pending a full investigation.

On 19th July, the Complainant was invited to an investigation meeting. A further meeting was called on 23rd July. In this meeting the Complainant was represented by Ms. Duffy King, a SIPTU official. The Complainant said he had permission from Mr. Trevor Glavin, who was in charge of the site, to smoke in his van. Mr. Whelan spoke to Mr. Glavin following this meeting who confirmed that on one occasion, a year prior, he had given the Complainant permission to smoke in his van which at the time was right beside the designated smoking shed.

A disciplinary hearing was convened on 5th November by Mr. James Foley, the Complainant’s Group Dispatch Manager. In this hearing the Complainant indicated there was a second instance where Mr. Glavin had given him permission to smoke in his van. This was denied by Mr. Glavin. Mr. Foley decided to dismiss the Complainant due to the severity of the incident, noting there was a diesel tank approximately 20 yards from where the Complainant was smoking. Mr. Foley gave evidence at the WRC hearing and was also cross-examined on why he preferred Mr. Glavin’s evidence over the Complainant’s. He stated he found it was consistent whereas the Complainant’s story changed throughout the process. On 20th January, the Complainant’s appeal was heard by Mr. James Yarr, Operations Director. Mr. Yarr referred to a risk assessment completed on the site by a third party, that there is a serious risk of fire, explosion and death if there is an ignition source at the wrong place. He considered the sanction of dismissal proportionate. 

The Respondent argued there was no dispute as to the fact of the incident itself, it was freely admitted by the Complainant. The Respondent highlighted its responsibility to abide by the health and safety regulations relating to the processing of flour and other combustible materials. The Respondent referred to the decision in Employee v Employer UD679/2009 where 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.

Conversely, the Complainant argued the Respondent’s actions were totally disproportionate. He gave evidence under oath at the WRC hearing that he had been living with and caring for his mother, who was in her eighties, since the onset of COVID-19 and had been given permission to smoke in his van from Mr. Glavin as he found the smoking shed too crowded to be safe. He explained there was little governance on how to handle smoking there during the pandemic. He had worked for the company for 20 years and thought he had been given permission partly because he had accrued some respect.

Decision: The WRC Adjudicator, Mr David Murphy, found the complaint of unfair dismissal was well-founded. The Adjudicator referred to the reasonableness test endorsed in Ireland in Bank of Ireland v Reilly, whether a reasonable employer might have dismissed the Complainant for the reasons given. Considering the combustible materials on-site, the Adjudicator agreed with the Respondent that it is reasonable for them to limit smoking to one area and treat breaches of this policy as serious misconduct warranting dismissal. The Adjudicator found the evidence given at the hearing that the Respondent had dismissed other people for the same offence to be credible.

However, the Adjudicator strangely found that the Respondent did not follow fair procedures. The Adjudicator was of the view that the Respondent was in breach of fair procedures by not giving him prior notice of what the meeting on 14th July was about and that he was only offered to bring a colleague rather than a representative. The meeting of 14th July was the first meeting at which the Complainant was shown the CCTV footage and informed of the complaint against him. It was not a disciplinary meeting. Nevertheless, the Adjudicator was also of the view that the employee should have been informed prior to this meeting that he was at risk of being dismissed. Unfortunately, the Adjudicator did not explain why an interview at which the CCTV footage was shown to the Complainant which illustrated the allegation against him cannot be an investigation meeting and in the Adjudicator’s view attaches a right to fair procedures.

Furthermore, the Adjudicator found that it was not appropriate that Mr. Whelan continued the investigation after the Complainant stated he had permission from Mr. Glavin, who was Mr Whelan’s superior. He was of the view that if Mr. Glavin had given the Complainant permission it was a serious derogation from company policy, and Mr. Whelan was put in a position of either making a finding against his superior or his subordinate.

The Adjudicator reduced the award by 50% due to the fact that the Complainant’s conduct contributed to his dismissal. The Adjudicator accepted the Respondent’s position that the Complainant failed to prove he sufficiently mitigated his loss but he took into account that the Complainant was at a disadvantage returning to the workforce after 20 years with no computer literacy.

Takeaway for Employers:  While this decision is interesting in that it finds with the employer in relation to the dismissal being within the band of reasonableness, it is a warning that the procedure will be scrutinized prior to any disciplinary meeting, especially where the employee has long service.


Authors – Anne O’Connell and Tara Kelly

31st May 2023

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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