ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00002553
Parties:
| Complainant | Respondent |
Parties | A Worker | A Confectionary Manufacturer |
Complaint(s):
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-00003560-001 | 30/03/2016 |
Date of Adjudication Hearing: 14/02/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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).
Summary of Respondent’s Case:
The claimant was employed as a General Labourer with the respondent from the 27th.January 2014 to the 5th.Oct. 2015.It was submitted that the claimant was dismissed for gross misconduct on the 5th.Oct.2015 following a full and fair investigation. The respondent set out a chronology of the events leading up to the initiation of the disciplinary process – it was advanced that on the 19th.Sept., the Night Shift Supervisor- hereafter referred to as Mr.F - was notified of a ca been driven erratically on site – the vehicle was owned by the claimant who arrived 20mins late to work. The claimant’s Process Manager – hereafter referred to as Mr.M- observed the claimant “ looking different than usual” and brought him to see Mr.F.Mr.F noticed that the claimant was unable to walk properly and would not make eye contact – he removed him from the production floor immediately believing there was something wrong with him and brought him to the locker room to talk.It was submitted that the claimant became aggressive when questioned about his late arrival and Mr.F reported that he detected a smell of alcohol off him.It was submitted that Mr.F asked the claimant had he been drinking alcohol and the claimant responded “yes about 4 hours ago”.The claimant was suspended with pay on the 21st.Sept. and was invited to an investigatory meeting on the 24th.Sept. 2015 to explore the allegations of being under the influence of alcohol at work and being unfit to be at work – in breach of Health & Safety policies.The claimant submitted a medical cert from the 19th.- 25th.Sept. and indicated that he would be fit to attend a meeting on the 25th.Sept.In this investigation , it was submitted that the claimant agreed that he had been questioned by Mr. F about having drank alcohol before his shift and agreed that he “probably” told him he had been drinking – it was advanced that the claimant asserted however that what he said was not true , that he said it in anger and that he had in fact been taking herbal drops from Latvia to manage stress.He suggested that he did not smell of alcohol but smelled of “ alcohol prescribed medication “.He was asked to bring in his GP prescription and invited to present medical evidence at the disciplinary hearing .The claimant was summoned to the disciplinary hearing by way of letter on the 25th.Sept. The meeting was scheduled for the 1st.October. The minutes of the disciplinary meeting were submitted into evidence.The claimant agreed with the managers’ timeline of events , asserted that he was driving erratically as he was late for work and claimed that he had taken his herbal medication prior to attending work .He stated that he was stressed that day owing to a call he had received from Latvia.Notification to the claimant of his dismissal dated the 5 th.October was submitted into evidence. The respondent submitted that all staff are required to meet the highest standards of hygiene, health and safety.It was advanced that the claimant’s role was technical , involved concentration and the ability to work quickly – it was submitted that owing to the claimant’s condition on the 19th.Sept. 2015 , “ meant that he was unable to carry out his duties in a responsible manner , jeopardising his safety and his colleagues safety “.It was asserted that the claimant drove to work while under the influence of intoxicants , putting himself and the public at risk. It was submitted that the claimant had been afforded his rights under natural justice and fair procedures and that he was dismissed following a fair and impartial disciplinary process.The claimant had not appealed the decision to dismiss , that there was an obligation to do so and UD584/2015 was invoked in support of this position.It was advanced that the claimant was found guilty of gross misconduct and the principles with respect to same were set Looney&Co v Looney in UD843/1984. Evidence supporting the respondent’s submission was given by Mr.F at the hearing. |
Summary of Complainant’s Case
The claimant submitted that he had been unfairly dismissed .He submitted as follows in his complaint form “ I was not under the influence of drink on the day in question – however , I was attending my GP in the Prima Care Clinic in Lucan and I am attaching a letter with regard to this”.
The claimant asserted that on the 19th.Sept. 2015 , he received a phone call from Latvia advising him that his mother had been diagnosed with cancer.He was very upset with his news and took his regular herbal drops to assist with his stress .He categorically denied drinking alcohol that day – he admitted that he may have indicated to his manager that he had been drinking but asserted that he did so in anger because he was so upset and stressed.He insisted that he was driving erratically as he fell asleep after taking the herbal drops , woke up late and rushed as he was going to be late for work.The claimant submitted that he saw no merit in appealing the decision to dismiss as the company had already taken the decision to dismiss him.The claimant referred to a letter from his GP dated the 28th.Sept.2015 which stated that the claimant had been attending the clinic in Lucan since the 17thAugust 2015 and confirming that “ He is taking some herbal medication from Latvia to help him to sleep”.
The claimant stated that since loosing his job he had become homeless as he was unable to pay his rent.
Decision:
Section 41 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 of the Unfair Dismissals Acts, 1977 – 2015 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.
Decision
In the course of the hearing the claimant referred to having brought a bottle of his herbal medicine to the disciplinary hearing – he asserted that he presented it at the hearing whereupon the respondent’s representatives took photographs of the bottle and retained it in their possession.
None of the respondent’s representatives were in a position to clarify what happened to the sample or indeed what consideration was given to same at the disciplinary hearing. This necessitated a further submission from the respondent’s representative who advised as follows on the 2nd.March 2017.
“……The hearing was adjourned to allow the respondent to respond to the claimant’s assertion that during the course of the disciplinary meeting he had produced the bottle of medicine that he claimed he was under the influence of when he was sent home from work on the 19th.Sept.2015.The claimant further asserted that the bottle had been taken off him, photographed and not returned to him.
Having clarified the position with those who conducted the meeting we can now respond as follows;
The claimant did procedure a bottle of what he purported to be medicine.
The claimant alleged that he was taking this medicine prior to reporting for work.
The claimant did handover the bottle and the name was recorded in the minutes as Barephian Hactonka.The respondent did not keep the bottle nor were photos recorded for the disciplinary.
It was not considered necessary to determine the nature of the medicine involved as what substance the claimant was under the influence of was not the issue of concern.
We feel it should be noted that during the adjudication hearing the claimant stated that the name of the medicine he was under the influence of was BALDIRIANS”.
In response the claimant emailed as follows:
“…………………The disciplinary meeting took place on Sept.19 2015 and I accept that the name on the bottle of medicine may have been recorded as Barepiahn Hactonka.There was a distance of some 18 months between that hearing and the WRC hearing and I use a lot of herbal medicine.I further accept that at the WRC hearing that I stated it was Baldirians medicine which I had taken. However, the point stands that both of these products are herbal medicines produced in Latvia and I had taken herbal medicine for the purposes of relieving stress.
I have reviewed all evidence presented at the hearing as well as the submissions from the parties and the correspondence exchanged post the hearing. A number of concerns arise in relation to the respondent’s processing of the claimant’s dismissal.
On the basis of the respondent’s own records of the investigatory meeting , the claimant was advised “ you will have a disciplinary meeting and bring medical evidence”.It would appear that the progression of the complaints against the claimant had already been predetermined before the investigatory meeting was complete –this is further supported by the fact that notice of the disciplinary meeting was issued on the same day as the investigatory meeting and prior to receipt of the medical report which was written by the claimant’s GP on the 28th.Sept.2015.This raises question marks re the fairness of the disciplinary process.
In the letter of dismissal the Operations Manager advises “ I can only believe that you were intoxicated by alcohol”.The only references in the respondent’s own records of the disciplinary meeting to the sample presented by the claimant are the name “ Barepiahn Hactonka” and the exchange between the respondents representative and the claimant as follows:
“B smelt the drops and said I don’t smell alcohol off these.Do you think that smells of alcohol…Claimant –I do – there is alcohol in the ingredients”.
During the course of the investigatory meeting , the claimant had been invited to present medical evidence at the disciplinary meeting – it would appear that other than smelling the sample presented by the claimant , no other investigation of the evidence upon which the claimant was relying was carried out.I find that these were not the actions of a reasonable employer.If a claimant is invited to present evidence in support of any defence they may wish to offer , any such evidence warrants consideration and investigation.This evidently did not happen in the claimant’s case.
I note one of the 3 aims of the respondents policy Drugs and Alcohol Policy is to “ provide a framework to enable instances of substance misuse by employees to be handled in an appropriate fair and consistent manner”.I find the investigatory process was flawed as set out above and that the employer did not act in a fair manner by failing to give properly investigate and consider the evidence proffered by the claimant.For these reasons , I find the claimant was unfairly dismissed.I require the respondent to pay the claimant €12,500 compensation within 42 days of the date of this decision.
Dated: 12 June 2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
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