EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1543/13 - Claimant no. 1
UD1551/13 - Claimant no. 2
UD1565/13 - Claimant no. 3
CLAIMS OF:
Piotr Wojciechowski
- Claimant no. 1
Kamil Olszewski
- Claimant no. 2
Michal Smiecinski
- Claimant no. 3
Against
PRL Group
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Revington S.C.
Members: Mr. A. O'Mara
Mr. S. O'Donnell
heard these claims at Dublin on 19th February 2015, 9th April 2015 and 20th July 2015.
Representation:
Claimant: Mr. Cathal McGreal BL, instructed by Sean Coady, D'Arcy Horan & Company, Solicitors, Kingsbridge House, 17-22 Parkgate Street, Dublin 8
Respondent: Mr Stephen O’Sullivan BL, instructed by McGuire Desmond, Solicitors, 5 Lapps Quay, Cork
The determination of the Tribunal was as follows:-
Respondent’s Case:
The respondent is a distributor of food products and owns several warehouses in Dublin, Kilkenny and Cork.
The three claimants were employed as general operatives who drove forklift trucks and worked on a Dublin site.
BOH is Operations Director. The respondent’s Safety Statement for Team Members (Employees) among other things states: They will ensure that, while at work, if reasonably required by management, submit to any appropriate, reasonable and proportionate tests by, or under the supervision of, a registered medical examiner.
All company documents are prepared in English. It is the manager’s responsibility to ensure that documents are received and read by all employees. A Polish version of all documents is available on request.
The Drug & Alcohol Policy in existence at the time of the employees’ tenure states:
Testing
Any employee suspected of being under the influence of intoxicants or involved in a work-related accident may be subject to with-cause testing.
Since the termination of the claimants’ employment the company has updated this policy to include “random selection”.
Following a tip off from a security officer, thirty eight employees including the three claimants were randomly selected to attend a medical practitioner to provide a urine specimen for drug screening in accordance with company requirements.
BOH together with Group HR Manager, MC met claimants no. 2 and 3 at 2.10 pm on 4th June 2013 to inform them of the need to attend for drug screening and the importance attached to such screening, and that a doctor would provide a report of the screening afterwards. MC extracted the relevant information and read through the relevant material from the Drug & Alcohol Policy, Employee Handbook, the Safety Statement and the relevant section of the Safety Health at Work Act 2005 and explained that should they refuse to attend for drug screening they could face disciplinary action. The respondent provided a taxi to take the claimants to the general practitioner.
Dr. GM is a general practitioner and occupational health physician. Claimants no. 2 and no. 3 had been referred to him for drug screening. Beforehand he spoke to them and explained the procedures. He read through the consent form. He was quite happy both claimants understood the procedures and knew beforehand what was involved in the drug screening. He did not see the need for a translator to be present. Both claimants refused to complete the consent form and said they were not proceeding with the drug test. He told them that he would be informing the respondent accordingly.
GM telephoned MC and told her that both claimants did not consent to drug screening that day.
At 4.15 pm on 4th June 2013 both BOH and MC again met both claimants no. 2 and no. 3. They offered employee T to act as a translator but both claimants declined that offer. MC advised them that she spoke to GM and that it was a very serious matter for the company. Because of their refusal to consent to drug testing they could be subjected to disciplinary action. The claimants were asked to attend a disciplinary meeting the next day, 5th June 2013.
At that meeting both MC and BOH met the claimants separately. MC explained the seriousness of their refusal to attend for drug testing and asked them the reason for their refusal to consent to drug testing. Both claimants said “I do not consent to drug testing”. Without a valid reason for their refusal MC said the respondent had no alternative but to summarily dismiss them without a valid reason/explanation. They were both offered a right of appeal to this decision to MD within 7 days. They did not appeal their dismissals.
MC explained that the depot was a seven day operation and a very busy depot. Health and safety was foremost in the company’s mind. She was very satisfied that the claimants had no issue in communicating in English. No alternative to dismissal was considered.
On 11th June 2013 claimant no. 1 was asked to attend at the medical practitioner’s surgery and while there to submit to drug screening. The claimant refused to attend at the surgery. At 2.30 pm that day the claimant was instructed to attend a disciplinary hearing on 13th June 2013. The respondent considered what the claimant said at that meeting.
By letter dated 13th June 2013 the claimant was informed by the respondent that the bond of trust had irretrievably broken down and was summarily dismissed. He was offered a right of appeal. He chose not to appeal the decision to dismiss him.
All three claimants have been replaced in their roles.
Claimant No. 1
Claimant No. 1 was employed as a general operative and commenced employment on 11th January 2010. During his tenure he had been furnished with company documents which included the company’s procedures, he signed them but did not fully understand them. While he had a copy of the Drug and Alcohol Policy he was not familiar with it. He was never furnished with a copy of the Polish version of that Policy.
Shortly after he arrived at work on 11th June 2013 he was called up to the BOH’s office. He was very surprised. TD was present in the office that day. He was instructed to attend at the company’s medical practitioner and to submit to drug screening. He was told if he refused to attend there could be consequences. He refused to attend that day. He did not feel comfortable giving a urine sample and he had a lack of trust in the company. He did not feel he was guilty of an offence and should not be tested. His father had died two months previously and he was still upset. During his tenure he had a good rapport with the managers and had no problems.
On 13th June 2013 he attended a meeting with BOC and MC and was asked again why he did not consent to drug testing. Following that meeting the claimant was dismissed.
The claimant has never taken drugs. He accepted that it would be dangerous to operate a forklift if a person had taken drugs but he had not taken any drugs. His role entailed operating a power pallet truck. BOH had praised him for his work. While he was aware of gossip in the company and employees being taken by taxi for drug testing he was unaware that employees had been dismissed because of their refusal to being tested for drugs.
Following the termination of his employment he contacted employment agencies. He was told he would have to improve his level of English. He left his CV in a number of businesses but has been unsuccessful in securing alternative employment.
Claimant No. 2
Claimant No. 2 was employed as a general operative and commenced employment on 1st August 2011. Upon his arrival at work on 4th June 2013 he was asked to go to BOC’s office. He was not told the purpose of the meeting in advance. Following a meeting with BOC and MC he was asked to attend at the company’s medical practitioner and to submit to drug screening.
He did not read the Drug and Alcohol Policy in advance of the meeting on 4th June 2013.
He attended at the medical practitioner’s clinic that day but decided not to give a urine sample as he felt uncomfortable giving a urine sample in front of a doctor. He did not do anything wrong and saw no reason to be tested. He was informed that he could be dismissed following his refusal to provide a urine sample.
In the six to seven month period prior to his dismissal the atmosphere in the warehouse had changed. He attended unofficial meetings and told to work harder. He has never taken drugs.
Following a meeting with BOH and MC on 5th June 2013 the claimant’s employment was terminated. He was offered a right of appeal. He did not appeal the decision to dismiss him.
The claimant secured alternative employment in September 2013. He is working in a part time capacity but has been unable to secure full time work.
Claimant No. 3
Claimant No. 3 was employed as a general operative and commenced employment on 3rd January 2010. Some time prior to the termination of his employment he was demoted to Loader. Following a meeting with BOH and MC on 4th June 2013 he was instructed to attend at the company’s medical practitioner and to submit to drug screening.
He travelled in a taxi together with his colleague M to the company’s medical practitioner. He refused to give a urine sample to the medical practitioner as he felt he could not trust him and the practitioner had solidarity with the company. He had a second meeting that day with BOH and MC.
He was unaware that he could be dismissed if he refused to give the urine sample.
The claimant has never taken drugs.
Following a meeting on 5th June 2013 with BOH and MC the claimant’s employment was terminated. He was offered a right of appeal. He did not appeal the decision to dismiss him.
The claimant secured alternative employment in Poland in December 2014.
Determination:
The Tribunal carefully considered the evidence adduced during the course of this three-day hearing.
The three claimants were invited to attend the company’s medical practitioner and to submit to drug screening following a random selection of employees. All three claimants refused to consent to drug testing. The respondent regarded this as a breach of the company’s drug and alcohol policy. The company formed the belief that the bond of trust between the company and the claimants had irretrievably broken down and believed that their refusal to attend at the company’s medical practitioner’s surgery left them with no alternative but to summarily dismiss the claimants.
The Drug and Alcohol Policy clearly states that “Any employee suspected of being under the influence of intoxicants or involved in a work-related accident may be subject to with-cause testing”. The Tribunal notes that there was no provision in this policy to select employees for “random testing” but that the Policy has since been amended to include “random testing”.
The Tribunal notes that while the Polish version of the Drugs and Alcohol Policy was available the claimants had not been furnished individually with a copy of the translated document.
The Tribunal determines that the claimants were unfairly dismissed; however, it is considered that they contributed significantly to their own dismissals. In the circumstances, the Tribunal awards claimant no. 1 €1,500.00, claimant no. 2 €1,500.00 and claimant no. 3 €1,500.000 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)