Brennans Bread has been ordered to pay €15,000 by the Workplace Relations Commission (WRC) to a former worker who was dismissed for failing to smoke in a designated area.
The complainant, Darren Kiernan, was employed by Joseph Brennan Bakeries in Dublin between July 2002 and December 2021 as a general operative.
He was dismissed for smoking in his personal van in the business’ parking lot rather than in the designated smoking shed.
Brennans noted, through CCTV footage, that Kiernan had been smoking in his van, considering it a “serious breach of health and safety policy”.
Kiernan took an unfair dismissal case to the WRC, with the hearing held yesterday (Tuesday, June 6).
In his submission, the complainant said that he had been living with and caring for his mother, aged in her 80s, during the Covid-19 pandemic.
He said he had been given permission by Brennans’ site manager to smoke in his van in order to avoid the crowded smoking area, and that he had never been asked to smoke beside the shed.
Kiernan claimed that, in being dismissed, his right to fair procedure had been ignored and that he was not informed of his right to union representation at any stage.
He also said that his dismissal violated Brennans’ own disciplinary policy, which states that it aims to correct staff who breach policy, whereas he had been dismissed in the first instance.
According to Kiernan, he had only received one verbal warning in his almost 20-year career with the business, and had never been disciplined prior to his dismissal.
In his submission he stated that the smoking shed was small and frequently full, and that there was “little governance” on how to deal with smoking during the pandemic.
He said that he had thought he had been given permission to smoke away from the designated area partly out of having accrued some respect, considering his service.
He also claimed to have been targeted by the business moving the angle of its security cameras.
Kiernan said that he didn’t think his actions were dangerous. However, he did confirm that there were other incidents of staff being dismissed for smoking.
Brennans’ response
In its submission, Brennans responded that it was an absolute statutory requirement for the business to abide by health and safety regulations relating to flour processing and combustible materials.
The business said it had changed the angle of security cameras on foot of a separate security incident in July 2021. The complainant was seen smoking in the van via a regular review of security footage, according to Brennans.
Kiernan was then placed on paid suspension while an investigation took place. Following that, the matter was referred to a disciplinary hearing which found that the he should be dismissed.
Brennans said that, at all stages, fair procedures were afforded to the complainant.
The company said that smoking outside of designated areas was identified as misconduct which can warrant immediate dismissal in its disciplinary policy.
Brennans said that Kiernan had been informed of his right to representation prior to the first meeting with him in relation to the issue, the purpose of which, the business said, was to gather facts.
The business also said that Kiernan did not at that time claim to have had permission to smoke in his van.
At a subsequent meeting, in which Brennans said that Kiernan was represented by an official from the Services, Industrial, Professional and Technical Union (SIPTU), the complainant suggested that he had been given permission to smoke by the site manager.
The company’s submission stated that the site manager had, on one occasion a year before the incident, given the complainant a waiver to smoke in his van at a time that it was parked beside the smoking shed.
According to Brennans, the complainant was smoking 20 yards from a diesel tank, 50 yards from a boiler house, and 75 yards from the flour silos.
Finding
Despite Brennans’ response, WRC adjudicating officer David James Murphy found in favour of the complainant.
Murphy agreed that it was reasonable for Brennans to have such a strict policy regarding smoking. However, he said that there were a number of serious defects in the process followed by the business in deciding to dismiss Kieran.
Murphy ruled that the complainant had been given no prior warning that he was at risk of dismissal prior to the initial meeting that took place after the incident, in which he admitted to smoking while not aware of the risk of dismissal.
The WRC officer also found that the granting of a derogation by the site manager to smoke would have constituted serious misconduct by the site manager himself.
For that reason, Murphy found that the investigation into the incident was not appropriately independent.
He also decided that the complainant’s claim to have received permission was not properly investigated.
Considering these factors, among others, as well the statutory process for determining appropriate redress, WRC officer Murphy found in favour of Kiernan and awarded him €15,000.