Brennans Bread bakeries has been ordered to pay a worker €15,000 after “serious defects” were found in the way it sacked him for breaking its smoking policy – which the company said risked “fire, explosion and death”.
Darren Kiernan secured compensation in a decision published on Tuesday by the Workplace Relations Commission on his complaint under the Unfair Dismissals Act 1977 against Joseph Brennan Bakeries ULC, where he had some 20 years’ service.
Bakery management witnesses told the tribunal that Mr Kiernan had committed serious misconduct by breaking its “absolute requirement” for a total smoking ban on its site save for a designated area because of the stocks of combustible materials on site, including flour and diesel.
On July 11th, 2021, Mr Kiernan was recorded on CCTV smoking in his van in the bakery’s car park, just “20 yards” from a diesel tank and “75 yards” from the bakery’s flour silos, the tribunal was told.
In his evidence, Mr Kiernan said he had been given permission by the bakery’s site manager, Trevor Glavin, to smoke in his personal van because of Covid-19-related concerns about crowding in the designated smoking shed.
Mr Kiernan said he had asked for the arrangement because he was living with and caring for his elderly mother through the pandemic, and “kept a low profile” when he did it as he knew Mr Glavin “wouldn’t have been allowed” to give him the pass on the smoking policy.
The complainant said he “owned up” when he was shown CCTV footage because he never thought there was a risk of being sacked – telling the WRC at a hearing in January that, in hindsight, he thought he had been “targeted” because of the positioning of the cameras.
Mr Kiernan said he didn’t think his actions were dangerous, but accepted when questioned that he was aware of at least three other workers who had been sacked for breaches of the smoking policy.
The complainant’s trade union rep, Mary Duffy-King of the Siptu Workers’ Rights Centre, argued the bakery management’s actions were “totally disproportionate” and that it had ignored his client’s rights to fair procedures and the statutory code on workplace discipline.
Solicitor Robin Hyde said the company’s investigator, Stephen Whelan, had interviewed Mr Glavin and said the site manager had denied giving permission.
The bakery’s operations director, James Yarr, told the WRC he heard Mr Kiernan’s appeal, in which the permission had been raised, but decided Mr Glavin had “no reason to lie”.
“There was never permission given before,” Mr Yarr added.
“There is a serious risk of fire, explosion and death if there is an ignition source at the wrong place,” Mr Yarr continued, adding that sacking Mr Kiernan was “proportionate in the circumstances”.
In his decision, adjudicating officer David James Murphy wrote that he accepted that the bakery’s total ban on smoking outside the designated area, on pain of dismissal, was “within the band of reasonableness”.
However, the adjudicator wrote that although the firm had evidence of Mr Kiernan smoking away from the designated area, it did not “properly” examine the complainant’s stated defence that he had permission from the site manager, Mr Glavin.
It would have been “a serious derogation from company policy” and likely “serious misconduct” on the part of the site manager to give this permission, Mr Murphy wrote.
This left the company’s investigator, Mr Whelan, to either make a finding “against his subordinate or his superior in the organisation”,” Mr Murphy wrote, adding that the investigator “should not have continued” beyond this point.
“I do not make this finding in any way suggesting that Mr Whelan was in any way dishonest in the course of the investigation, but that he was put in a position by the respondent which [he] ought not to have been,” Mr Murphy wrote.
This was a “serious defect” in the process leading to dismissal, Mr Murphy wrote, making the same remark about the fact that Mr Kiernan had been shown CCTV footage and questioned on it with “no prior warning” and “no notice” that he was facing dismissal.
Ruling the dismissal unfair, Mr Murphy awarded the complainant €15,000 in compensation.