Paul D Maier is a barrister specialising in the law of work, labour, and employment. Based in Dublin, Ireland, he is a member of the Law Library, having been called to the Bar in 2022.
Paul represents both employers and employees at all levels of the Courts, as well as before the Labour Court and the Workplace Relations Commission. He is a qualified arbitrator and is frequently commissioned to lead independent investigations and disciplinary procedures for organisations. Additionally, he is regularly engaged to provide legal advice and opinions on employment law and related matters.
Paul serves as the Editor of the Irish Employment Law Journal and Employment Law Report, and he is the Treasurer of the Employment Bar Association.
Background:
The Complainant was employed by the Respondent as a General Operative at Joseph Brennan Bakeries. The Respondent’s premises contain flour and other combustible materials which require strict adherence to health and safety regulations, including the restriction of smoking to a designated area. On 12th July 2021 the Respondent observed the Complainant on CCTV smoking in his van in the car park of the Respondent’s facilities and outside the designated smoking area. The Respondent called the Complainant in on 14th July and was asked to review the CCTV footage, and the Complainant confirmed at that time that he was the person seen smoking in the van. The Complainant was placed immediately on paid suspension, and after an investigation and disciplinary process, the Complainant was found to have committed serious misconduct and was dismissed.
The Complainant alleged the smoking facilities were unsuitably full, particularly in the context of the COVID-19 pandemic. He alleged he was targeted for dismissal and claimed he was given permission to smoke in his van by the Respondent’s site manager.
The Respondent defended its decision referring to the contract of employment which stated smoking outside the designated area was a dismissible offence.
Outcome:
The Adjudication Officer found the decision to dismiss the Complainant was substantively reasonable, given the contractual provisions stating smoking outside a designated area was grounds for serious misconduct and dismissal. However, the procedure for investigating and disciplining the Complainant was flawed in two ways: 1) the Complainant was not warned prior to being confronted with CCTV footage, not given the opportunity to avail of union representation, and not advised that an admission of guilt could result in his dismissal, and 2) the investigator was put in a position to find against the Complainant or against the site manager, who was alleged to have given the Complainant permission, and this conflict created an unfair investigation. The Complainant was awarded €15,000.
Practical Guidance for Employers:
Even in cases where an employee commits conduct that is explicitly prohibited in their contract, and that conduct is recorded on CCTV, it is essential to ensure any investigation and disciplinary process is followed carefully. When misconduct is observed by CCTV, care should be taken not to “ambush” an employee with the footage without providing prior written notice of the observed misconduct to the employee.
The full case is here:
https://www.workplacerelations.ie/en/cases/2023/may/adj-00039331.html
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