unfair dismissal | 

Cinema manager sacked after being found asleep and 'smelling of drink' awarded €1.6k

The manager said he was required to work 56 hours a week due to staff shortages and also had a newborn child

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Stephen Bourke

A cinema manager sacked after being found asleep at his desk and reportedly smelling of alcohol has been awarded €1,600 in compensation for unfair dismissal.

The compensation was reduced after the Workplace Relations Commission ruled the man was 60pc responsible for his dismissal – though he was awarded a further €1,018 for breaches of the Organisation of Working Time Act.

The manager told the WRC that, in the run-up to the incident, he was required to work 56 hours a week due to staff shortages and also had a newborn child.

James Sammon made the complaints against Galway Multiplex Ltd, which operates the IMC Galway cinema on the Headford Road, following his dismissal from the post of general manager in July 2020.

His employer told a hearing last December it terminated Mr Sammon’s employment by reason of misconduct, having conducted a “full, impartial and fair investigation and disciplinary process”.

A HR manager for the cinema group said in evidence that a customer had emailed alleging the manager had “looked intoxicated” in the cinema on Sunday 17, November 2019.

It was just two weeks since he had been promoted from duty manager, the commission was told.

The HR manager also said two supervisors working at the multiplex made further allegations, saying Mr Sammon had “fallen asleep on duty” on Monday 18 November and sent a junior colleague out to buy alcohol and cigarettes for him the following day.

The complainant’s solicitor submitted the alcohol was for an “after-work event” and that Mr Sammon “did not consume alcohol on the premises”.

The CCTV showed Mr Sammon was “under the influence of alcohol” and that he had been “asleep at his desk”, the HR officer said, and another member of staff took a photo of the complainant asleep at the desk.

The supervisors reported that Mr Sammon “smelled strongly of alcohol”, the HR manager said.

Mr Sammon stated that he had been drinking the previous night and accepted he might have smelled of alcohol.

He was suspended with pay that Tuesday ahead of an investigation meeting which went ahead the following Friday 22 November in the absence of Mr Sammon, who the firm said “chose not to engage” at this point.

The investigation meeting upheld the allegation that Mr Sammon was asleep at work, the company submitted.

But Mr Sammon, in his evidence, said the manager from the Oranmore branch of the cinema chain came to him the Tuesday before this meeting and “told him that he was fired”.

She told him “he was to leave the premises immediately and to hand over the keys”, he told the hearing.

Mr Sammon said the other manager told him he could only read the letter she gave him at that point “after he had left the premises”.

The letter was from the company’s HR manager, inviting him to the investigation meeting – but he said at this stage he was “suffering from a nervous breakdown” and believed he would be unable to function properly at the meeting, he said.

He submitted a sick cert on 26 November confirming he was suffering from depression and remained on sick leave until 10 March 2020, the commission was told.

The company said a disciplinary hearing was delayed until July 2020 as a result, but Mr Sammon was ultimately dismissed on 17 July 2020, and this was upheld on appeal.

Cross-examining the cinema group’s HR manager, Mr Sammon’s solicitor asked if she was aware that the complainant had a newborn child and put it to her that this was the cause of him falling asleep on the job.

The HR manager said it was “unacceptable to fall asleep” and the main issue for the cinema operator was the “health and safety risk”.

She said it was the company’s final decision was that Mr Sammon was “asleep rather than intoxicated”.

At the hearing, Mr Sammon apologised to his former employer for sending out a junior worker for cigarettes and alcohol and accepted this was “indefensible”.

He also apologised for falling asleep at the desk and for any “smell of alcohol which might have emanated from him” on 18 November.

Mr Sammon also told the WRC that owing to staff shortages he was required to work 56 hours a week in October and November 2019 and between 58 and 60 hours during the week of 14 October.

He also complained that he wasn’t getting his statutory break entitlements and daily rest periods.

He said he asked the company’s HR manager to recruit new staff and a replacement duty manager but “nothing happened” until after he was suspended.

The company’s solicitor argued Mr Sammon would need to show a pattern of working in excess of 48 hours over the course of four months in order to succeed in a claim for excessive hours.

The company’s position was that Mr Sammon himself was responsible, as general manager, for rostering himself for breaks – and that its records showed he had sufficient time off for rest between shifts.

In her decision, adjudicating officer Máire Mulcahy said it was “uncontested” that the Oranmore manager had told Mr Sammon he was dismissed on 19 November.

She noted the company had taken the position that there was an “abuse of the complainant’s position of authority” and that its staff “have the right to work in a safe environment and not feel threatened by another employee”.

“While I find that deploying a junior colleague to purchase alcohol was an improper misuse of his position, it is another step to state that the employee felt threatened or coerced,” Ms Mulcahy wrote.

She ruled the firm had failed to allow Mr Sammon to cross-examine the colleague the company said had been “threatened” – calling this “a central and significant element in the respondent’s rationale for dismissal”.

Ms Mulcahy added that the firm also failed to bring Mr Sammon’s attention to the prospect of dismissal, classified his misconduct as “serious” in an invitation to the disciplinary hearing and failed to engage with the points raised in his appeal.

These points revealed “a process that falls short of the entitlements to natural justice”, she wrote.

“It was a rapid descent for the complainant - a period of two weeks from being trusted to take on the general manager’s role to being suspended with a view to dismissal,” she added.

However, Ms Mulcahy also found that Mr Sammon had made a “significant” contribution to his own dismissal and reduced the award by 60pc - making an order of €1,619 in compensation for unfair dismissal.

She also upheld Mr Sammon’s claim on breaks during his shifts and awarded him €1,018 but rejected the other working time claim.

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