This week we look at a recent Workplace Relations Commission (WRC) case in which the Adjudication Officer was required to consider a dismissal arising from smoking on site and the use of CCTV footage. Our Adrian Twomey highlights the key points to note in the case of Kiernan v Joseph Brennan Bakeries, ADJ-00039331.
The Complainant, Mr. Darren Kiernan, was employed as a general operative. He commenced employment on 17 July 2002. He was dismissed, over nineteen years later, on 15 December 2021 for smoking in his van rather than in the designated smoking shed on site.
A manager gave evidence that he was conducting a regular review of CCTV footage of the company's car park on 12 July 2021 and noticed that the Complainant had been smoking in his van the previous day. Two days later, the Complainant was asked to review the footage and he confirmed that he was the person smoking in the van. He was immediately put on paid suspension pending a further investigation. Following that investigation and a subsequent disciplinary hearing, the Complainant was dismissed. His internal appeal was unsuccessful. He submitted a complaint to the WRC under the Unfair Dismissals Act 1977 (as amended) and his complaint was heard on 6 January 2023. A decision was issued on 22 May 2023.
At the WRC hearing, the employer argued that smoking outside of designated areas was specified as constituting serious misconduct in the company's disciplinary policy. It stated that there are several fuel tanks and flour silos on site and that the smoking area is specifically located at a distance from them to avoid the risk of an explosion. The Complainant, however, was smoking in a place that was 20 yards from a diesel tank. The employer added that three other employees had previously been dismissed for smoking at locations other than the designated smoking area.
The Complainant gave evidence that he had sought, and been given, permission by the Site Manager to smoke in his van rather than in the designated smoking shed because he believed the shed to be too crowded to be safe during the COVID-19 pandemic. The company seems to have contended that this permission was given on one occasion - rather than on an open-ended basis - and that Mr. Kiernan's van was parked next to the smoking shed at that time.
The Adjudication Officer found that it was reasonable for the employer to ban smoking outside of a specified area in circumstances where there are combustible materials on-site. He went on to find that it is reasonable to regard breaches of this policy as serious misconduct warranting dismissal. However, he also identified what he regarded as procedural failings on the part of the employer. He noted that:
Mr. Kiernan had been called to a room to review the CCTV footage with two members of management without having been given any prior notice or warning that he was at risk of dismissal or being told that he could bring a colleague with him. One of the managers in attendance, who questioned him at the time, also suspended him and carried out the subsequent investigation.
The Site Manager had allegedly given Mr. Kiernan permission to smoke in his van. The internal investigator was a subordinate of the Site Manager. The Adjudication Officer concluded that this was improper. Interestingly, the Adjudication Officer found that Mr. Kiernan was entitled to an "appropriately independent investigation" given that he was at risk of dismissal.
In light of the above, the Adjudication Officer found that the dismissal was unfair. However, he concluded that Mr. Kiernan's conduct had contributed to his dismissal and awarded compensation of just €15,000, despite assessing the employee's loss as being €30,000.
The use of CCTV footage in a disciplinary context might well have given rise to concerns. However, the Adjudication Officer appears to have accepted the employer's evidence that (a) it had a CCTV policy that specifically provided for the use of CCTV footage at disciplinary hearings and (b) the employee had admitted to smoking in his van. It is worth noting that the Court of Appeal held last year, in Data Protection Commissioner v Doolin, [2022] IECA 117, that processing personal data in the form of CCTV footage for disciplinary purposes is unlawful under the Data Protection Acts 1988-2018 if the data subject is not aware of the purpose of processing at or before the time the data is obtained.
Key Points to Note:
It is unlawful to use CCTV for disciplinary purposes unless the employee is aware before the footage is gathered that it can be used for such purposes.
A clear CCTV/Data Privacy Policy and/or notice should be furnished to employees.
The WRC is clearly taking the view that employers can treat smoking on-site as a dismissible offence in certain circumstances.
Procedures remain of the utmost importance.
Employees should not be ambushed and/or required to comment on CCTV footage or other material without being told that they are at risk of dismissal and being allowed to bring a representative.
Interestingly, the Adjudication Officer stated that employees are entitled to an "independent investigation". We would caution readers that this language is easy to misconstrue. We do not believe that there is a general right on the part of employees to have internal investigations conducted by external third parties. Care does, however, need to be taken when internal investigators are being selected.
Employers who require advice in relation to employment law issues or who need representation before the WRC or Labour Court can contact our Adrian Twomey.