Richard Grogan: Mitigating loss and smoking on premises



Richard Grogan
Richard Grogan

Employment law solicitor Richard Grogan explores a case involving unfair dismissal where an employee is smoking on work premises.

The issues of mitigating loss and smoking on premises arose in UDD2135, being a case of Q Park Ireland Limited and Denis Fitzpatrick.

The Labour Court in this case said that employers are required to uphold the law and that smoking in a confined area is a breach of the law and it can be expected that in many, if not most, instances of such a breach, the court will uphold the right of an employer to dismiss.

However, the court pointed out that in this case the breach came to their attention due to CCTV footage in the aftermath of what could only have been a frightening and distressing incident.

The court pointed out that it was anxious not to appear to excuse a flagrant breach of the law, made worse by an argued justification based on previous transgressions where the employee had argued that the practice of smoking was generally ignored and that this justified an argument to disregard the transgression.

The court in this case had held that an incident which arose where there had been an exchange between the employee and a car driver was not an issue which would have warranted dismissal.

What is interesting is that the court in this case, even though the issue of smoking only came to light when the CCTV was viewed, still took the view that this was a breach of the law and made worse by the justification put forward by the employee.

The court therefore took the view that, taking all factors into consideration, a reasonable employer would not have dismissed and that dismissal was unfair in the circumstances where the smoking took place after what the court held was a frightening experience for the employee.

The court pointed out that the maximum compensation would be €51,000. The court, however, pointed out that by smoking on the premises, the employee had contributed to his dismissal. The court also pointed out that, while it is accepted that it is more difficult for a man of the particular age of the employee to find full-time employment, and while he was to be commended for securing part-time employment for a period and for securing a role as a tour guide, it was an established principle by the court that a dismissed employee’s time is not their own and that the employee is required to apply part of every normal working day in securing alternative employment. The court found that the complainant fell well short of this requirement. On that basis, a sum of €18,000 was awarded.

What is interesting in this case is that the court has clearly set out that breach of a non-smoking policy would warrant dismissal. It has also pointed out is that where an employee seeks to justify something which cannot be justified, that this will be taken into account in assessing compensation.

The other issue which again is repeated by the court is the requirement of employees to use the time after they are dismissed applying for other employment.



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