ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001889
Complaint(s)/Dispute(s) for Resolution:
|
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00002586-001 |
14/02/2016 |
Date of Adjudication Hearing: 24/05/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Complainant was asked to take a blood test for suspicion of attending work under the influence of alcohol on the 31st July 2015. The blood test was positive and the Complainant was immediately suspended from his work with pay pending a disciplinary hearing. The Complainant appeared at a disciplinary hearing on the 4th September and was advised he was being summarily dismissed on the 8th September 2015. The Complainant appealed the decision and following an appeal hearing heard by a Director on the 2nd of November he was informed by letter dated the 18th Novemberv2015 that his appeal failed and his dismissal was confirmed as and from November 3rd 2015 The grounds for the Complainant’s complaint are as follows: • The severity of the sanction • The negative impact on staff relations • Failure of the company to provide all relevant information prior to the disciplinary hearing of the 4th September • Presence and role of Operations Manager during testing • Failure of the Testing Company to adhere to testing protocols • Failure of the company to demonstrate effectively that the Complainant was aware of, understood and was instructed appropriately in the company’s policy on testing for alcohol and drugs • Failure of the Operations Manager to provide or investigate medical assistance when he identified an employee showed signs of disorientation. The Operations Manager abrogated his duty of care responsibilities to a disorientated employee. The decision to summarily dismiss the Complainant did not give due consideration to the following; • The lack of dignity and respect demonstrated during the testing procedure • The efforts of the employee over the past twelve months to improve his attendance and general work performance • The behavioural pattern associated with his illness • The severe economic impact on the member and his family • Alternative sanctions proposed • Negative impact on staff relations • Credit for past 25 years of service |
Summary of Respondent’s Submission and Presentation:
The Complainant has been employed since 1988 in a major organisation in the Public Transport, Safety & Regulation Sector. Particular Safety standards, both National and International, apply to Employees in this organisation. The Organisation has a remit both in Ireland and Internationally.
The Organisation has a policy “Managing Workplace Intoxicants” which was agreed with all staff representative bodies in 2011. It is preventative in nature and affords employees the opportunity to avail of extensive assistance if they should have issues in this area. Employees who self disclose will not be subject to disciplinary action.
The Complainant reported for duty on the morning of the 31st July 2015. His immediate superiors felt that he appeared disorientated and referred him for an Intoxicants Test, that morning, with a firm of retained professional Testing Consultants. The Complaint was found to have a level of alcohol in his system above permitted levels.
The Complainant was placed on Administrative Leave immediately.
A disciplinary Hearing took place on the 4th September 2015 followed by a decision to dismiss.
A further Appeal Hearing took place on the 2nd November 2015. The Complainant was at all times assisted by his Union. At the Disciplinary process the Complainant admitted to having an Alcohol problem.
The decision to dismiss for Gross Misconduct, in keeping with Company Policy, was upheld by the Appeal hearing.
Extensive written materials, copies of correspondence, written and email, copies of Policies and Procedures were presented in evidence. Two Senior Officers of the Organisation gave extensive Oral evidence.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Issues for Decision:
Did an Unfair Dismissal as defined in the 1977 Act take place?
Legislation involved and requirements of legislation:
Unfair Dismissals Act 1977 – fair procedures and reasonable consideration of all material evidence
Decision:
I have reviewed all the evidence presented, both oral and written, in this case.
Section 7 of the Unfair Dismissals Act was discussed extensively in Carney v Balkan Tours Ltd a Supreme Court case [1997] 8ELR 102. Section 7 was deemed to confer a wide discretion on an Adjudicating body in determining appropriate redress. All circumstances were to be taken into account. Reviewing the evidence in this case I was satisfied that all circumstances were taken into account – in particular the background issues of Alcohol and Safety were treated sensitively and with due care.
At all times, in this case, fair and correct procedures as required by the Unfair Dismissal Act, 1977 were followed by the Respondent.
Professional Trade Union representation was present at all stages from the initial Dismissal meeting on the 4th September to the Final Appeal Hearing on the 2nd November 2015. In fact the Union was very centrally involved. All information requested was supplied. The Complainant was fully informed of all matters.
The Dismissal letter of the 8th September 2015 runs to some four A 4 pages and is a very detailed and reasoned consideration of all the relevant facts.
The Appeal hearing of the 2nd November 2015 which was conducted by a very senior Officer of the Respondent was a comprehensive review, including re interviewing of relevant managers, of the earlier material.
The actions and non actions of the Complainant were completely contributory to his Dismissal. There could be no reasonable suggestion that he was unaware of Respondent safety procedures generally and particularly policy in regard to Workplace Intoxicants and the concomitant self disclosure protocols. The Policy is design to promote a preventative culture in regard to Intoxicants. It was agreed following extensive Trade Union consultations. The Policy had been extensively publicised with ,in addition to a mail shot to employees, an extensive series of staff information seminars. The Complainant was an employee of long standing and considerable experience of the Organisation.
The Complainant was employed in a particularly safety critical industry and organisation. Significant European Commission regulation applies to the safety /medical aspects of the role. The Complainant must have been well aware of the need to declare any alcohol related issues to his employers. He had already participated in an Alcohol recovery programme in 2003 and accordingly would have been fully aware of all Alcohol related matters. He had regular opportunities to declare any issues of concern regarding Intoxicants at the numerous meetings he had with the Occupational Health Advisors including one as late as the 23rd May 2014.
The Union contended, in mitigation, that non disclosure of an alcohol problem was not a valid reason for dismissal but having regard to the absolutely critical safety imperatives in this profession together with the very extensive assistance programmes available on self disclosure I found that I could not agree with this contention.
Fair procedures in a highly Safety critical situation were followed at all times by the Respondent.
Accordingly, taking all the above factors into account, I find that the claim of Unfair Dismissal is not well founded and the claim is dismissed.
Dated 22nd August 2016