ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006845

Parties:

Complaint(s):

Date of Adjudication Hearing: 24/05/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Location of Hearing: Room G.07 Lansdowne House

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 Section 13 of the Industrial Relations Acts 1969 and following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Summary of Complainant’s Case:

The worker has been working with the respondent since January, 1997. He has an excellent disciplinary record. In 2007 the complainant underwent treatment for Kidney cancer which has left him with permanent nerve damage. This causes him extreme pain on a daily basis. He had a spinal nerve blocking devised surgically inserted to help control his pain. He also takes several prescription pain killers daily.

On the night of the 15^th November, 2015 he turned up for work. He was unusually tired and had extreme levels of pain. He had been caring for is father that weekend. His father is suffered from Alzheimers. He took one oxycontin, an opiate bases pain killer. He took another one when he arrived at work. He has no recollection of the incident that took place, ie the slashing of two bicycle tyres. He went into the office at 11.30pm and was found at 4.30am asleep on the floor. Having view the CCTV he fully accepts that he did the act but states that it could only have been as a result of the medication. He doesn’t normally take oxycontin. His GP’s opinion was that the medication was the likely cause of his drowsy. The CMO agreed with the GP’s opinion. There was no explanation for the damage to the bicycles.

The worker is of the opinion that the sanction of demotion in rank and pay was disproportionate taking into account his long service and disciplinary record.

Summary of Respondent’s Case: 

The facts are not in dispute. The Appeals Officer stated that “ wilful destruction” of respondent property is a dismissible offence. She considered dismissal but taking into account the workers disciplinary record and length of services she felt that demotion was a proportionate sanction.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

There is no doubt that the worker in this case had an exemplary disciplinary record. He has been working the respondent for twenty years without issue. During this time he has been promoted to a   Supervisory position. In 2007 he was diagnosed with Kidney cancer and following treatment for that condition, has been left with very debilitating pain. Medical efforts have been made to try and control the level of pain but the worker still requires daily prescription pain medication. On the night in question he took medication that he doesn’t take normally. He did so because his pain level was extreme. There is little doubt that it was that medication that caused him to fall asleep on the floor of the office. Both his GP and the CMO opinion was that it was the medication that made him drowsy. However, there is no medical evidence which could explain the workers actions when he slashed the tyres of the bicycles.

The respondent is of the opinion that dismissal would have been disproportionate in all of the circumstances and that is why the sanction of demotion was given.

The demotion has a knock on effect on the worker’s salary. His salary has been reduced by 20%. That has a knock on effect on his pension entitlements.

I find that the events of the 15^th November 2015 were out of character for the worker and the likelihood of a re-occurrence are very slight. In circumstances where he has an excellent disciplinary record for 20 years, this was his first disciplinary process and he has medical evidence to support some of what happened that night, that the sanction of demotion was disproportionate.

I recommend that the worker be given a final written warning which should remain on his file for a period to 24months.

Dated:   08^th June 2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

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