Industrial Tribunals Northern Ireland Decisions

D R A F T

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  03170/09

 

 

 

CLAIMANT:                      Marek Cieszynski

 

 

RESPONDENT:                O’Hare & McGovern Ltd

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent.

 

Constitution of Tribunal:

Chairman:              Mr P Kinney

Members:              Dr Ackah

                              Mr Gunn

 

Appearances:       

The claimant appeared and represented himself. 

The respondent was represented by Mr Moore of EL Consultancy Ltd.

The tribunal was assisted by Ms Schmidt, Interpreter.

 

The issue for the tribunal to determine is whether the claimant was unfairly dismissed by the respondent. The respondent accepts that it dismissed the claimant but asserts it was for a potentially fair reason, namely, gross misconduct.

 

 

 

 

Facts

 

1.               The claimant was employed by the respondent. He was engaged to work on the respondent’s contract to build a new library at Queen’s University Belfast.

 

2.              On 12 November 2008 Mr Gregorz Plata, as a result of information received from employees of a sub contractor on site, went to a skip identified by them. In the skip

he saw a plastic bottle which he identified as a two litre cider bottle. He contacted    the site manager, Mr Strange.

 

3.                 Mr Strange then reviewed CCTV footage of the area. He saw the claimant at the skip and then crawling behind the skip. The claimant placed something in the skip. Mr Strange went to the skip and found the bottle where the claimant had been seen putting something in the skip.

 

4.                 He spoke to the claimant in the compound. He smelled alcohol on the claimant’s breath. He took the claimant to the site office. Mr Laverty, the project manager, was present. Mr Strange, in the better light of the office, saw that the claimant’s eyes were red and glazed. Mr Strange told the claimant that he believed the claimant had consumed alcohol. He suspended the claimant because of the health and safety risk the claimant posed to himself and others. He asked a foreman, Mr McBurney, to escort the claimant from the site.

 

5.                 The claimant had received previous informal warnings about the consumption of alcohol.

 

6.                 A disciplinary meeting was convened for 17 November 2008. The claimant provided an explanation for being at the skip and for the condition of his eyes. He said he had been sent to the skip by his foreman and that his eyes were red due to spray painting. The disciplinary hearing was adjourned to investigate the claimant’s assertions. It reconvened on 27 November 2008. Statements had been obtained from the foreman, confirming he did not send the claimant to the skip and from Mr McBurney, who had escorted the claimant offsite, saying he was very unsteady on his feet. It was also confirmed that no painting had been taking place at the claimant’s work area.

 

7.                 On 12 December 2008, Mr Laverty wrote to the claimant to confirm that the respondents considered that he had consumed alcohol at work which constituted gross misconduct and the decision was made by the respondent to summarily dismiss the claimant.

 

8.                 The claimant lodged an appeal on 8 December 2008. Mr Lennon, the contract manager, convened an appeal hearing on 16 December 2008. Mr Lennon considered the matter as a full rehearing and took witness statements from the witnesses. On 30 January 2009 Mr Lennon wrote to the claimant to confirm that his appeal was not upheld.

 

The Law

 

9.                 Under paragraph 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has a right not to be unfairly dismissed. By Article 130, to determine whether a dismissal of an employee is fair or unfair, it is for the employer to show that the reason for the dismissal falls within the terms of that article. By Article 130 (2)(b) one such reason relates to the conduct of the employee. If a potentially fair reason is established, the tribunal should then consider whether the respondent acted reasonably in all the circumstances. Dismissal must be within the band of reasonable responses which a reasonable employer might take, and the tribunal must not substitute its own view for that of the employer.

 

10.             Following the authority of British Home Stores v Burchell [1978] IRLR379, the tribunal should be satisfied that the employer at the time of dismissal had a genuine belief in the employee’s guilt of that misconduct, had reasonable grounds to hold that belief, and carried out such investigation as was reasonable in all the circumstances.

 

Tribunal Conclusions

 

11.             The respondent carried out an extensive investigation and provided the claimant with every opportunity to explain the circumstances of his behaviour. His disciplinary hearing was adjourned to allow additional evidence to be obtained. There was a completely fresh appraisal of the matter of appeal.

 

12.             The respondent had a genuine belief that the claimant had consumed alcohol and reasonable grounds for so believing. The claimant did not satisfactorily explain his actions. He accepted that he had previously been given warnings relating to the consumption of alcohol. The respondents carried out an investigation which was reasonable in all the circumstances.

 

13.             The tribunal finds that the sanction of summary dismissal is within the range of reasonable responses which a reasonable employer might make. Health and safety concerns relating to the claimant and others on this site were of considerable importance to the respondent. They were acutely aware of their responsibilities.

 

14.             The tribunal concludes unanimously that the claimant was not unfairly dismissed.

 

 

Chairman:

 

 

Date and place of hearing:         1 September 2009, Belfast        

 

 

Date decision recorded in register and issued to parties: