Aryzta Bakeries (Represented by Irish Business Employer's Confederation) v Vilnis Cacs (Represented by Mr Niall O'Neill BL Instructed by PC Moore & Company Solicitors)

 
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Labour Court (Ireland)

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UD/17/106

DETERMINATION NO.UDD1812

ADJ-00002553 CA-00003560

PARTIES:
Aryzta Bakeries (Represented by Irish Business Employer's Confederation)
and
Vilnis Cacs (Represented by Mr Niall O'Neill BL Instructed by PC Moore & Co Solicitors)
SUBJECT:
1

1. Appeal of Adjudication Officer's Decision No: ADJ-00002553.

BACKGROUND:
2

2. The employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with the Unfair Dismissals Acts 1977 to 2015. A Labour Court hearing took place on 3 January 2018. The following is the Determination of the Court:

DETERMINATION:
3

This matter comes before the Court as an appeal by Aryzta Bakeries (the Appellant) of a decision of an Adjudication Officer in a complaint made by Vilnis Cacs (the Claimant) that he had been unfairly dismissed by the Appellant. The Adjudication Officer decided that the Claimant had been unfairly dismissed and awarded the sum of €12,500 in compensation.

4

The fact of dismissal was not in dispute.

Background
5

The Claimant was employed by the Appellant from 27 January 2014 until the date of his dismissal on 5 th October 2015. The Claimant was a Production Operative employed in the Appellant's bakery which manufactures goods for public consumption. At the time of his dismissal he was earning €19,500 per annum with the Appellant.

6

Summary position of the Appellant.

7

The Appellant's disciplinary policy and the Claimant's contract of employment state that an employee may be dismissed for serious misconduct. In those documents serious misconduct is defined, among other things, as attending work under the influence of alcohol / unprescribed drug substances.

8

On 19 th September 2015 at 8.30pm the Appellant's night shift co-ordinator Mr F received a phone call from security stating that a member of the public was at the gates of the premises complaining that somebody who had been driving erratically had driven onto the site. The night shift manager was informed that the member of the public had called An Garda Siochana in relation to the matter.

9

Mr F established that the car in question belonged to the Claimant. Mr F received no phone call from the Claimant as to why he was attending work late for his scheduled shift.

10

The Appellant's process manager Mr M noticed that the Claimant had not arrived to work on time. At 8.40pm, when the Claimant arrived at work, Mr M asked the Claimant whether he had contacted anybody about attending late for work and the Claimant confirmed he had not. Mr M noticed that the Claimant looked different than usual and looked like somebody who was drunk. Mr F contacted Mr M and asked him to bring the Claimant to see Mr F. Mr F noticed when he met the Claimant that he was unable to walk correctly and would not make eye contact. Mr F removed the claimant from the production floor immediately and brought him to the locker room to talk. When questioned the Claimant became aggressive and waved his hands in the air. Mr F detected a smell of alcohol from the Claimant.

11

Gardai arrived on site and interviewed the Claimant and Mr F informed the Gardai that he was sending the claimant home. Before sending the Claimant home Mr F asked him if he had been drinking alcohol and the Claimant agreed that he had ‘about four hours ago’. Mr F offered to drive the Claimant home but he decided to walk.

12

On 21 st September the Appellant's HR department sought to contact the Claimant to arrange an investigation meeting but did not succeed. On that date also the Claimant's manager, Mr Z, wrote to the claimant notifying him that he was formally suspended with pay pending investigation and inviting him to attend an investigatory meeting on 24th September 2015 to explore two allegations

• That he was under the influence of alcohol while at work

• That he was not fit to be at work and was therefore in breach of the health and safety policy as he was a risk to both himself and others.

13

The Claimant did not attend that meeting due to illness but did attend a meeting on 25 th September. The Appellant's value stream manager Mr A convened that meeting. The Claimant was offered the right to bring an employee representative to the meeting but he declined to do so. At that investigation meeting the Claimant agreed that he ‘probably’ told Mr F that he had been drinking but that in fact that was not true. The Claimant informed Mr A that he was taking herbal drops to manage stress and that he smelled of alcohol prescribed medication. Mr A asked the Claimant to bring in his prescription from his GP.

14

Following that meeting the Appellant's operations manager Mr D issued an invitation to the claimant to attend a disciplinary meeting to explore two allegations following the investigation process, viz:

• That he was under the influence of alcohol while at work

• That he was not fit to be at work and was therefore in breach of the health and safety policy as he was a risk to both himself and others.

15

The Claimant was offered the right to bring an employee representative but he declined to do so.

16

At that meeting on 1 st October 2015 the Claimant contended that he was taking medication which helped him sleep and that his erratic driving was because he was late for work. In addition he said that he had received a phone call from Latvia before leaving for work on 19 th September 2015 which caused him stress.

17

On 2 nd October a disciplinary outcome meeting was convened by Mr D. Mr D concluded that the Claimant's actions amounted to gross misconduct and Mr D made the decision to dismiss the Claimant with immediate effect. The Claimant was offered the right to make an appeal within 10 days.

18

Mr D issued a letter on 5 th October confirming the decision to dismiss and advising that the Claimant had a right of appeal to the plant manager Mr BM. The Claimant did not appeal the decision to dismiss.

19

The Claimant worked in an environment of food production which involved the use of high speed production equipment. Consequently, safety and hygiene are critical factors in the Appellant's workplace.

20

The procedures followed to investigate the events of 19 th September were fair and the disciplinary process was fair and impartial. The Claimant was offered the right of appeal which he declined. The Claimant has an obligation to exhaust internal procedures prior to making a complaint that he had been unlawfully dismissed and he failed to do so.

21

The Appellant contended that the decision to dismiss was in accordance with what a reasonable employer would have done in the circumstances.

Summary position of the Claimant
22

The Claimant was extremely stressed on 19 th September following receipt of information as regards his mother's...

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