Former Joseph Brennan’s Bakeries employee awarded €15,000 for unfair dismissal
A former employee of Joseph Brennan’s Bakeries, Darren Kiernan, has been awarded €15,000 for unfair dismissal after he was fired for smoking in his van in the bakery car park. The Workplace Relations Commission issued the decision on May 22, 2023, ruling that although smoking outside a designated smoking area was against the company policy, there were a number of “serious defects” in the process of dismissing the employee.
Kiernan was dismissed from his job as a General Operative with Brennan’s in December 2021, after he was seen on CCTV smoking in his personal van in the site parking lot, rather than the designated smoking shed. Brennan’s stated that statutory health and safety regulations relating to the processing of flour and other combustible materials meant that smoking outside designated areas on the site was a serious misconduct, and that the company disciplinary policy states that this is grounds for immediate dismissal. In this case, Brennan’s noted that there were three previous incidents of employees being dismissed for smoking in the wrong place, and Kiernan was smoking in his van which was approximately 20 yards from a diesel tank, 50 yards from the boiler house and 75 yards from the flour silos.
Kiernan claimed that he had been given permission to smoke in his van by the manager of the site, Trevor Glavin. However, Brennan’s said that Glavin denied this and the company preferred his account during the investigation of the incident. WRC Adjudication Officer David James Murphy stated that if Glavin had given permission, it would have likely amounted to a serious misconduct on his part. The adjudicator said that the moment this defence was raised, the investigation should have been restarted with a more appropriately placed member of management to conduct an appropriately independent investigation.
The decision also identified an issue with the way the former employee was interviewed about the CCTV footage, without prior warning that he was at risk of dismissal. Murphy ruled that while it was reasonable for Brennan’s to treat smoking outside the designated area as grounds for dismissal, the employer did not properly investigate Kiernan’s claim that he had permission.
Kiernan was awarded a total of €30,000 for financial loss under section 7 of the Unfair Dismissals Act 1977, as he was dismissed in 2021 and subsequently secured a lower-paid position. However, the award was halved to €15,000, as the WRC adjudicator said that Kiernan was “well aware” that what he was doing was contrary to company policy. It was determined that even if his defence of having permission from the site manager was successful, Brennan’s would still have been within their rights to issue a disciplinary sanction short of dismissal.
This case highlights the importance of proper investigation procedures when dealing with disciplinary matters. Employers should ensure that they follow the correct procedures and investigate all claims thoroughly before making a decision. Employees should also be made aware of the potential consequences of their actions and the company policies that they are expected to adhere to.