ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004559

Complaint 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-00006404-001	10/08/2016

Date of Adjudication Hearing: 20/02/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

The Complainant herein has referred a matter for dispute resolution pursuant to Section 8 Unfair Dismissal Act, 1977and the referral has been made within six months of the initial circumstances of the relevant dispute/contravention.

Summary of Respondent’s Submissions:

The respondent stated that they have a very strict policy in relation to Drugs and Alcohol. This policy came about by way of collective agreement in 2009. It is displayed in all of the depots and any changes made to it are notified to each employee. The policy states:

“ A manager or supervisor who has reasonable cause to suspect that you are unfit through alcohol or drugs while on duty or when reporting for duty must arrange for you to be :

Refused permission to ‘book on’ or commence work.
If already on duty, be relieved immediately, until you have been tested and the results of the test are known.
Tested for alcohol and or drugs by a recognised agency.
Removed from safety critical roles while waiting the results”

There is also a policy in relation to returning to work following an absence. The employee must complete a fitness to work form and sign it. The reason for the absence is irrelevant. The policy states:

“Upon their return to work all employees must report to their relevant team leader and in line with the company’s duty of care are required to complete a return to work interview and give details of their reasons for absence will be discussed”.

When someone is taking a leave of absence the policy states:
In the event of absence from work, for whatever reason, an employee must contact the company as soon as possible but not later than two hours before their start time on the first day of their absence”

On the 15^th June the complainant was on the list of employees due to return. He had been absent the previous Friday, 12 June, 2016, due a medical emergency his wife had. Driver Team Leader 2 (hereinafter referred to as DTL 2) saw him get off the tram and walk into the building. He was wearing a tracksuit. That was normal for the complainant. He asked if he could do a return to work meeting and the complainant agreed to do so. He told DTL 2 that he had been absent due to his wife’s medical situation. DTL 2 told him he could apply for Force Majeure leave for the Friday. The meeting was held in a corridor. DTL 2 filled out the form and the complainant signed it and he, DTL2 counter signed. It was then that he got a smell of alcohol from his breath. He went into the locker room, DTL 2 followed him in and again got the smell of alcohol. He informed him that he couldn’t sign on for work and that he would have to be tested. He contacted the control room and asked for a spare driver to cover the complainant’s shift. He explained to him what was going to happen. The complainant was tested and failed test 1 and test 2. The complainant then stated that there was no point doing the urine test as he would fail it. DTL 2 then asked if he had been drinking and he replied that he had had four glasses of wine the evening before but had finished by around 8pm. After the tests were carried out he got aggressive and stated “ this is your fault are you happy now this is going to cost me my job al you had to do was send me home to avoid all of this”

DTL 2 could not remember what the complainant was wearing when the test was being carried out.

There was a delay in getting the result of the tests. The HR manager called the complainant to tell him about the delay. During that phone call the complainant stated “ I fucked up” when asked about the issue.

The HR manager stated that he probably did appoint DTL 1 to investigate the matter. He had no other involvement other than to advise on the various letters that had been drafted in relation to the investigate and disciplinary hearings. He was informed of the decisions verbally. He did not have any notes of those meetings/ discussions he had with DTL1 or DTL2

DTL 1 Carried out the investigation. He is an experienced investigator having carried out approximately 20 per year. He made arrangements to talk to the complainant and his representative. He requested a statement from DTL 2 and he also interviewed him. During that interview DTL 2 told him that he had interviewed the complainant in the corridor and at no point did the complainant state that he wasn’t there to work.

He interviewed the HR manager because the complainant had told him on the phone that he “fucked up”.

He spoke to the tester to ensure that he was probably qualified to do the test itself. The complainant told him that he had four glasses of wine but the test results were not consistent with that statement. He checked the complainant’s start time on the day in question. He did that because the complainant stated that he was not there to work but to collect items from his locker. He also checked the back to work form.

He interviewed the tester to try and establish what clothing the complainant had on him at the time of the testing. He was informed that the complainant only had a fleece on and had no shirt.

He sent the drugs and alcohol policy to the complainant. He accepted that it was a different policy to that opened at the start of the hearing. He also stated that it was him who drafted the letter 23^rd June, 2015 and that he got the HR manager to check it for him.

He accepted under cross examination that the complainant was not attempting to report for work.

He concluded that the matter should proceed to a disciplinary hearing and he and only he decided on the charge. The charge was communicated to the complainant by letter dated 29 July, 2015. It stated:

“ That you contravened the Company’s Drugs and Alcohol policy as you failed an alcohol test on 15^th June at Red Cow Luas Depot due to your test results exceeding the also limits set out in the policy.”

DTL 1 stated that after he had drafted the letter went down to the HR manager and showed the letter to him for his approval.

DTL3 was appointed the disciplinary officer. He drafted the letter inviting the complainant to the disciplinary hearing. He had the HR manager approve the letter before he sent it out. Prior to the meeting the only thing he had sight of was the investigation file. He reviewed it fully before the hearing. He asked the complainant if he wanted to have the B sample tested but he declined. The complainant’s only defence was:

He was not coming to work that day.
He didn’t have his glasses on and thought he was signing a FM pay form.

The facts against him were:

He signed the return to work form.
He had put on his uniform
He was asked if he was fit to return to work and he said yes.
He was attempting to sign on only DTL 2 prevented him from doing so.

He concluded that the complainant should be dismissed. He based that conclusion on the about and on the bases that he could see no reason when DTL2 would lie about it and because the complainant had signed the back to work form.

The complainant appealed the decision to dismiss him. The decision to dismiss was upheld.

Summary of the Complainant’s submissions.

His wife had been taken to hospital on 12 June, 2016 with a suspected heart attack. She is the one in their household who keeps control of all of the finances. The complainant needed to get money out of the bank because their bankcard was at his wife’s place of work. His driver’s licence and his passport were in his locker at work. He was going in to get them so that he could withdraw some money from the bank. He arrived in. DTL2 called him over and asked him to “ sign that”. He told him it was to cover his pay for Friday’s FM leave. He didn’t have his glasses but he did sign it as he didn’t want to be docked pay. After he signed the form he went into his locker to get his documents. DTL 2 followed him in and then told him he would have to test him. He did admit to him that he had had four drinks. He is not a big drinker but that weekend because his wife was ill many people called to the house and he was actually drinking all weekend. He was very embarrassed about it.

He has worked for the respondent for 13 years and has a good reputation and a good working relationship with staff and management.

He hasn’t found a job since and is not hopeful of doing so because of his age. He is 57. The complainant is seeking reinstatement.

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.

It is agreed between the complainant and the respondent that he had consumed alcohol on the night of the 14^th June. The complainant stated that it was four glasses of wine. The respondent states that the complainant is telling a lie about the quantity based on the test results. I note that at no point in the investigation or at the disciplinary hearing did anyone ask the complainant how large the glasses of wine were. I would have expected that to be established prior to brandishing the complainant a liar.

The real issue in this case is whether or not the complainant was present on the respondent red cow site with a view to signing in for work. He is adamant that he was only there to collect his identity documentation. The facts in favour of that contention are:

He was not wearing his uniform.
He did not have a uniform in his locker.
He did not have his tram key.
He did not have his glasses.
He signed a form that he believed was for his Force Majeure Leave pay.
He never made any attempt to make his way up to the control room to sign on.
The facts against him are:
He often came to work in a track suit.
He had signed many back to work forms and should have known what it was.
He was present on the site at the exact time he should have been had he been attending for work.
He hadn’t called in to say he wouldn’t be attending work that day.

On the balance of probabilities, I prefer the complainant’s evidence. I do so because the complainant had been working for the respondent for a period of 13 years and had no history of breaching the drugs and alcohol policy before. His explanation that he needed to get his identification documents out of his locker so that he could withdraw money from the bank is a creditable one. Furthermore, it is conceded that he needs glasses for work and that he didn’t have them on that date. The respondent didn’t investigate whether his uniform was in his locker and therefore I accept his uncontroverted evidence that it was not. The respondent didn’t investigate whether he had his tram key and therefore I accept his uncontroverted evidence that he did not. The complainant could not have attending for work as it wasn’t possible for him to drive the tram without his glasses and his tram key and he would not have been allowed to do so without his uniform. Furthermore, I accept the complainant’s evidence that he signed the form thinking it was so that he could claim his Force Majeure leave for the Friday.

The Respondent’s handling of the disciplinary and investigation process had many flaws. I must now establish whether those flaws rendered the process unfair or prejudiced the complainant.

The HR Manager - He was not only a witness in the matter but he did manage the process and advised on the content of all letters written. It is clear from the evidence that the HR manager appointed DTL 1 as the investigator and DTL 3 as the Disciplinary officer. During the investigation he gave a statement in relation to what the complainant had said to him on the phone during the ‘delay tests result’ call. He gave advices in relation to the content of the various letters written by DTL 1 and DTL 2 and also in relation to the charge that was preferred against the complainant. I question how DTL 1 knew that he should interview the HR manager during his investigation. It is most unusual that a HR manager would be interviewed as part of an investigation. DTL1 could not have known about the comments made by the complainant unless the HR manager told him about it. There are no notes in relation to any meeting/ discussion about that issue. The HR managers duel role in the process was at best a lack of judgement and was in breach of the principles of natural justice and fair procedures.

The charge - the against the complainant does not state that he was on the premises for the purpose of attending work and/or to that he was attempting to sign on. It simply states :

The policy that was opened during the hearing states:

“ A manager or supervisor who has reasonable cause to suspect that you are unfit through alcohol or drugs while on duty or when reporting for duty must arrange for you to be :

Refused permission to ‘book on’ or commence work.
If already on duty, be relieved immediately, until you have been tested and the results of the test are known.
Tested for alcohol and or drugs by a recognised agency.
Removed from safety critical roles while waiting the results”

The policy the respondent relied on during the disciplinary process states:

“ Bringing alcohol, drugs or any prescribed substance(other than medically prescribed drugs) in the work environment, consuming drugs or alcohol during working hours , or coming to work under the influence of drugs is strictly prohibited and contravention of this requirement is a dismissible offence”

“Employees must not,

Report or try to report for duty at any time when unfit through alcohol or drugs”

The policies are similar in nature. They both require the employee to be free from drugs and alcohol when on duty or when coming to or reporting for duty. The charge against the complainant is silent on the essential element “being on duty or reporting for duty” and is therefore fundamentally flawed.

Records - At had at least three meetings where had during the investigation and disciplinary for which there are no records and the complainant was not on notice of them.

The HR manager and DTL 1 must have had a conversation about the “ I F…..ed up” comment prior to the formal investigation meeting. There are no notes of that meeting.

On the 23 July, 2016 when DTL 1 interviewed DTL2 the issue of his uniform came up. DTL 1 stated “the tester has stated that he didn’t see him with his shirt on”. The tester had not been interviewed at this stage and therefore I can only conclude that a conversation was had with him of which there are no notes or records and of which the complainant was not on notice.

DTL 1 drafted the letter dated 29 July, 2016. He brought the letter to the HR manager for his opinion. There are no notes of that meeting.

DTL3 drafted the letter of dismissal. He brought it to the HR manager for advices before sending it out. There are no notes of that meeting.

Flawed reasoning - The disciplinary officer without explanation decided that the complainant was telling lies and that DTL2 was telling the truth. He did so having not interviewed DTL 2. He interviewed the complainant and concluded solely on that interview that he was not being truthful. Furthermore,the factual basis upon which DTL 3 based his decision to dismiss was incorrect or misunderstood. He stated in evidence that he came to the conclusion he did based on three facts. 1. The complainant signed the back to work policy. 2. He had put his uniform on. 3. DTL 2 prevented him from signing on. It is clear from the respondent’s own evidence that the complainant did not have his uniform on and he that did not attempt to sign on.

Reasoning -No reasons given why the matter was being progressed to a disciplinary hearing in the letter of 29 July, 2016. The letter simply states “ That you contravened the Company’s Drugs and Alcohol policy as you failed on alcohol test on the 15^th June, 2015 at the X depot due to your test results exceeding the alcohol limits set out in the policy” . There is no explanation as to why the witnesses version of events were preferred over the complainants. There is no statement that the investigator was of the opinion that he was attempting to report for duty. In fact in evidence the investigator . DTL1 specifically stated that he accepted that he was not reporting for duty. Furthermore, no reasoning was given as to how the decision to dismiss was reached.
In all of the circumstances, I find that the respondent’s investigation and disciplinary process was so flawed that it did prejudice the complainant, was unfair and in breach of the principles of nature justice.

The complainant’s claim succeeds.

I find in all of the circumstances of the case that the appropriate remedy is re-engagement.

The complainant is to be re-engaged into the same role with the same terms and conditions as those prior to his dismissal. The re-engagement is to take effect from the 01^st March, 2017. There is to be no interference / break in the complainant’s service or pension entitlements.

Dated: 25^th April 2017