Smoker's unfair dismissal case rejected

A FACTORY worker who was dismissed after being caught on CCTV smoking in the work canteen, had his case for unfair dismissal rejected by the Employment Appeals Tribunal.

John Roche took his former employer, BRC McMahon Reinforcements, based in Tipperary town, to the tribunal over his dismissal in February 2009. The company, which has 17 branches, makes mesh wire for the building industry.

BRC McMahon decided to investigate three complaints of smoking in the canteen from an employee who did not want his identity made public.

The health and safety manager found cigarette ash on the floor and passed the information on to the works manager. The managing director installed CCTV in the canteen for three days.

Mr Roche, along with two other employees, was caught smoking. The two other men admitted they had been smoking and apologised and were suspended on full pay pending a disciplinary hearing.

Mr Roche insisted on attending the investigatory meeting only with a union official present.

A disciplinary hearing was heard in February in which Mr Roche’s union, Siptu, was present.

When invited to view the CCTV footage, the union representative declined saying it was a breach of Mr Roche’s rights under the Data Protection Act.

Mr Roche was finally dismissed on February 13th with the company complaining that his smoking constituted a “serious breach” of the company’s safety policy and that he also failed to co-operate with the investigation.

He appealed his dismissal to the managing director but the managing director found his evidence “evasive, inconsistent and dishonest” because Mr Roche could not recall whether or not he had been smoking in the canteen.

Mr Roche, from Fr Matthew Court, Tipperary town, claimed he did not know that smoking on the premises was a dismissible offence.

He could not recall attending a health and safety meeting in late 2000 when smoking was prohibited on site and he had been a member of the health and safety committee.

In its ruling published yesterday, the tribunal said it was “satisfied that putting the health and safety of others as well as the safety of the premises, where flammable goods are stored, at risk constituted gross misconduct and came within the respondent’s disciplinary policy”.

It upheld the company’s decision to dismiss Mr Roche.