ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006985

Parties:

Complaint(s):

Date of Adjudication Hearing: 16/11/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant commenced employment on 10th January 1994 as a production operative in a PVC floor and wall manufacturing plant. At the time of his dismissal was paid €551.47 per week.

The Complainant was dismissed for being under the influence of intoxicants. He has submitted a complaint for unfair dismissal on the basis that the disciplinary and appeals procedure was unfair, and that the sanction of dismissal is disproportionate. The Complainant is seeking reinstatement.

Summary of Respondent’s Case:

The Respondent submitted that substantial grounds existed which justified the dismissal such that the Complainant has no claim against the Respondent under the Unfair Dismissals Act.

The Respondent maintained that the Complainant received training on the company disciplinary procedures and Health & Safety procedures. It submitted that the Complainant was summarily dismissed from his employment on the 31st August 2016, following a full and comprehensive investigation and disciplinary procedure in line with the company policy. It contended that the Complainant was found to have committed an act of gross misconduct when on 9th June 2016 he presented for work in an unfit state which amounted to a serious breach of the company’s Alcohol and Drug Policy.

The Alleged Incident

Referring to the Complainant’s behaviour that led to his dismissal, the Respondent advised that on 09th June 2016, the General Manager passed by Complainant on the factory floor and observed that the Complainant’s face was very flushed and slightly bloated. The General Manager met with the Production Manager and the Production Line Leader and asked both employees had they noticed anything different with regard to the Complainant that morning. The employees confirmed that they had not noticed anything. However, during the course of this meeting, Complainant passed by the office and the Production Manager noticed that the Complainant looked flushed, and noted that he needed to be observed a lot closer as the morning went on. After the meeting finished, The Production Manager contacted the Health & Safety Officer and asked him to observe Complainant, in accordance with the Company’s Drug & Alcohol Policy which states “where a supervisor/manager identifies a pattern or work performance or behaviour indicator of a possible alcohol and drug related problem he/she should ask for a second opinion from a H & S committee member and then if they agree there is an issue...”

At approx. 10am, The Production Manager observed Complainant looking very unstable when Complainant was taking his tea break. After tea break, Complainant called into the office of The Production Manager to request the day off the following day, 10 June 2016. During this conversation The Production Manager observed that the Complainant’s face was very red in colour and appeared bloated, his eyes were very heavy and sleepy looking. He also observed that the Complainant looked unwell and in his opinion Complainant appeared to have consumed intoxicants.Complainant returned to his work station.

During that morning, a line operator, asked the Production Line Leader, for assistance on two separate occasions as Complainant was not at his work station to assist with the task. The Production Line Leader found Complainant, in the dust room which is adjacent to the production line and instructed Complainant to go back to his workstation. The Production Line Leader formed the opinion that the Complainant “did not look right”. Complainant returned to his work station. Shortly after, the Production Line Leader noticed Complainant stagger at the end of the line and immediately reported this to the Production Manager. The Production Manager contacted the Health and Safety Officer who also confirmed that in his opinion Complainant was in an unsafe state to continue his position at work

The Production Manager then reported to the General Manger that local management and the Health and Safety held the view that the Complainant was a risk to himself and to his fellow employees. The General Manager instructed the Production Manager to bring Complainant to the board room. However, when the Production Manager went to look for Complainant he was not at his work station but was found leaning against a boiler in the dust room. The Production Manager asked the Complainant to come over to the board room, and observed that the Complainants speech was very slurred and Complainant staggering as he lifted himself off the boiler.

The Production Manager asked the Complainant if he wanted his Union Representative or anyone else to accompany him but the Complainant said “No, this is the same shit as before”. The Production Manager accompanied Complainant to the office block as they crossed the yard further observed that the Complainant staggered and was bent over and low to the ground. Complainant staggered and The Production Manager tried to catch hold of him but the Complainant refused help, staggered again and fell to the ground, causing lacerations to his face.

The Respondent submitted that at the commencement of the meeting in the board room with the General Manager, the Complainant was asked twice if he wanted his Union Representative or anyone else to be present with him, but he declined both invitations. The General Manager noticed that the Complainant had blood on his hands and around his nose. The General Manager asked the Complainant what had happened. Complainant stated that he had a nose bleed and it was OK. However, the Production Manager explained to the General Manager that the Complainant staggered and fell to the ground where he banged his face off the concrete yard.

The Respondent explained that during the meeting with the General Manager and the Production Manager, the Complainant was sitting crouched over leaning against the table. A First Aider come over and rendered first aid. The General Manager then outlined the company’s Drug and Alcohol policy, to which the Complainant commented that he knew all about the policy as it had been explained to him before. (The Respondent submitted that this was with reference to a previous meeting on 21st September 2015, with The General Manager and Complainant, regarding the incident whereby on 17th September 2015, the Complainant was moved from the factory floor for health & safety concerns as Complainant was a risk to himself and to his fellow employees. The Respondent further maintained that the Complainant was granted a day’s paid leave on 18th September 2015, in order to address his personal issues).

The General Manager proceeded to inform the Complainant that the events of the morning of the 9th June 2016 were very serious and that the Complainant had been observed by himself, The Production Manager, the Production Line Leader and the Health and Safety Officer, who all had formed the opinion, that from a Health & Safety viewpoint, the Complainant was a risk to himself and all his fellow employees. The General Manager informed the Complainant that he was not allowing him to return to the Factory floor and in accordance with company procedures, he was suspending him on full pay immediately, pending an investigation. The General Manager confirmed to the Complainant, that he would arrange for a taxi to take him home.

The Respondent submitted that the Complainant was refusing to accept what was being said to him that the Complainant became abusive where he questioned the authority of the General Manager in making the decision of refusing him permission to return to the Factory Floor. The General Manager reaffirmed that the Complainant was a Health & Safety risk to himself and his fellow employees.

The Respondent outlined that a local Trade Union Representative met with the Complainant. After that meeting the General Manager returned and explained to the Union Representative that the Complainant had refused Union representation twice. It is alleged by the Respondent that during this discussion the Complainant stated that he was the Shop Steward and that he had longer service with the company than the General Manager. It is also submitted by the Respondent that the Complainant proceeded to threaten the General Manager at this meeting, repeatedly asking “do you want a fight?” and that the local Union Representative witnessed this. During this meeting the General Manager asked the Complainant to confirm his mobile number, so that he could contact him once the taxi brought him home and later to arrange meetings for the purpose of the investigation, but the Complainant refused to confirm his contact details and stated that he would not be taking part in the investigation. The Respondent submitted that the Complainant also refused to provide the General Manager with contact details of a family member, or to contact a family member so that he could be met when he returned home.

The Respondent contended that when sending the Complainant home, the Complainant stated that “you are not suspending me”, and further stated that the General Manager “wants to go hard on me”. The General Manager advised the Complainant that he was suspending him. The General Manager observed that the Complainant’s speech was slurred and his tone aggressive during these discussions.

The Respondent submitted that when waiting for the taxi to arrive, the Complainant attempted to go back to the factory floor and locker room but this request was refused. At this time the General Manager stated the Complainant was unsteady on his feet. It was submitted that the Union Representative had to request the Complainant to come back into the meeting room and sit down. When the taxi arrived the General Manager and the Production Manager observed the Complainant staggering in the hallway and at the front door of the office block, prior to the Complainant getting into the taxi.    

The Investigation

The Respondent advised the Complainant was suspended with pay on 9th June 2016 pending a full investigation into the serious allegation of being unacceptably intoxicated at work. This is provided for in Section 7(5) of the House Agreement (last amended in March 2010) which states “Some examples of misconduct that may warrant (the Company) to suspend an employee with or without notice are but not limited to:- Reporting to work having consumed alcohol to the extent as to render oneself, in the reasonable opinion of (the Company), unfit or unsafe to work on the premises”

Evidence was submitted that confirmation of the Complainant’s suspension was made in writing to the Complainant, by The General Manager on 14th June 2016. This letter stated that “It is alleged that on 9th June 2016 you reported for work under the influence of intoxicant(s) creating a safety risk to yourself and your work colleagues”. The Respondent therefore contended that the severity of the allegation facing the Complainant was known from the outset. The Respondent maintained that the Complainant would have a right to representation and a right to present his version of events.

The Respondent appointed an external investigator to investigate the serious allegation, where it maintained that this was jointly agreed with the Company and the Trade Union. On 22nd June 2016 the Complainant was informed of the appointment of the investigator and a copy of the Terms of Reference were also provided.

An investigation was carried out into the incident on 28th and 29th of June 2016 where the Complainant wassupplied with a copy of the company’s Disciplinary Procedure, a copy of the Alcohol and Drug policy, a statement of the incident from the General Manager, the Production Manager, the Production Line Leader, and the health and Safety Officer.

The Respondent advised that at the investigation, that Complainant stated that he had taken 2 Ponstan tablets at 11pm the night before the alleged incident, he took a further 2 Ponstan tablets at 2am, another 2 Ponstan tablets at 7am before he left for work, and whilst at work at 10am he took a further 2Ponstan tablets. The Respondent maintained that the Complainant rejected the claim that this amounted to being under the influence of intoxicants at any time on 9th June 2016. The Respondent also argued that the Complainant failed to disclose to the company anything about his condition prior to the investigation, or that he was taking any medication up to 9th June 2016. The Respondent further argued that the Complainant advised he had informed his local Union Representative about this, but at no stage on 9th June 2016 did the Union Representative inform or disclose to any Management about Complainant’s condition.

The Respondent advised that the Complainant was afforded the opportunity to respond to each stage of the investigation process and to have a witness present in line with the House Agreement

The Investigation report was issued on 11th July 2016 and concluded: “that on 9th June 2016 the Complainant was in an unsafe condition at the company’s premises during his normal working hours, most probably as a result of taking intoxicants. His condition was such that he was a health and safety risk to himself and his fellow workers. This was a serious breach of the company’s policies in relation to Health and Safety, the Alcohol and Drug Policy and the Disciplinary Policy”.

The Respondent further submitted that investigation report also included the following:

• “I find that much of The Complainant’s evidence was a deliberate attempt to fabricate the real facts surrounding the events on that day.”

• “He has and accepts that as Shop Steward he has responsibilities as outlined under the Code of Practice for Employee Complainants as contained under Section 42 of the Industrial Relations Act 1990.”

• “The Complainant’s conduct and actions on the 9th June 2016 left management with no other option but to act in the manner which they did. This was done for his own and his fellow employees safety.”

• “Management have a duty of care for all their employees and acted in accordance with best practice on the day in question. They were not assisted in this process by The Complainant’s obstructive and threatening behaviour.”

• “His actions on the day in my opinion amount to gross misconduct and should be addressed under the company’s Disciplinary Procedure.”

The Disciplinary Process

The Respondent advised that following the conclusions reached in the Investigation Report, a disciplinary hearing was arranged by the Plant Engineering Manager on 15th July 2016. The meeting was rescheduled for the 21st July 2016 as Complainant was unable to attend. The Disciplinary hearing on 21st July 2016 was chaired by The Plant Engineering Manager. In attendance was the Complainants Trade Union Representative, a full time official, the Complainant, and a note taker.

The Respondent submitted that at the meeting, The Union Official raised a number of issues with the Investigator’s report. He stated that the investigator failed to note issues raised by the Union Official ’s at the investigation, and that the investigation report only noted points responded to by Complainant, not the points raised by The Union Official . The Union Official confirmed he would follow up directly with an email to The Plant Engineering Manager detailing the issues he raised during the investigation that were not mentioned in the Investigator’s Report. The Complainant also queried why the process had taken so long.

The Respondent maintained that the Plant Engineering Manager outlined that the investigation had taken place as quickly as possible and it was not possible to move any faster as Complainant’s trade Union Representative had been unavailable due to annual leave, and because Complainant was unable to attend the initial scheduled disciplinary meeting on 15thJuly 2016.

Following this disciplinary meeting, t the Respondent advised the Plant Engineering Manager received an email from the Union Official outlining his concerns regarding the investigation and the subsequent report. The Respondent advised that the Plant Engineering Manager raised these issues with the Investigator and the Investigator gave his assurances that his investigation was fair and honest.

A second disciplinary meeting was held on 23rd August 2016. The Plant Engineering Manager confirmed that the issues raised by The Union Official were put to the Investigator and the investigator’s reply was that there would be no change to his report or findings The Plant Engineering Manager adjourned the meeting to consider all of the evidence presented.

The Respondent submitted that a letter was issued to the Complainant on 29th August 2016, via registered post outlining that having considered all the evidence the Plant Manager had concluded that the company had no alternative but to terminate Complainant’s employment as the Complainant’s actions and behaviour were deemed to constitute gross misconduct. The Plant Engineering Manager noted that “while considering possible alternatives and noting your long service with the company… the events giving rise to your dismissal are not tolerable for any employee”.

The Plant Engineering Manager outlined to the Complainant “there are many hazards in the manufacturing process in the factory, which given your longservice would be known to you”. The Plant Engineering Manager stated that “you were intoxicated on duty without bringing it to the attention of the company. You were unable or not disposed to bring it to the attention of a colleague for remedial action, you were unable to remain standing until a manager had to intervene……..Your behaviour, deemed unsafe for working in the factory, was gross misconduct”. The Complainant was notified that he was being dismissed from his employment on 31st August 2016. In this letter he was afforded the right to appeal within 5 working days to the Financial Controller. The Respondent advised that the Complainant notified the Respondent of his intention to appeal via email on 2nd September 2016, on the grounds that he believed that the dismissal decision was disproportionate to the misconduct charge

The Appeal Hearing

The appeal hearing was held on 14th September 2016 chaired by the Financial Controller. The Respondent maintained that in advance of this appeal hearing, the Financial Controller reviewed all documentation relevant to the appeal. During the appeal hearing the Financial Controller examined the points raised by Complainant in his email. At the appeal hearing the Union Official stated that he was aware that dismissal was a possibility but that he believed that it would not go that far. He also stated that the full seriousness of the issue only became apparent to the Complainant when he received The Plant Engineering Manager’s letter of 29th   August 2016, confirming his dismissal.

At the hearing the Complainant provided a written letter which was read into the minutes of the meeting. In his appeal the Complainant requested that the company consider his tenure with the company, and his family circumstances. He also submitted that the “General Manager even said to me even since I was suspended during a phone conversation, that I was one of the best machine operators that he had in [the Company]” The Financial Controller confirmed that she would take all things stated todayintoaccount when making her decision.

The Respondent advised that on 20th September 2016, the Financial Controller met with the General Manager in relation to the Complainant’s statement regarding the comments that the Complainant “was one of the best machine operators that he had in [the Company].” The Respondent conformed that the General Manager did make a comment to the Complainant that the Complainant was a good worker. The General Manager confirmed that this was said during the initial stage of the process, when he was arranging a meeting with the Complainant regarding the investigation, and before matters had been investigated.

On 27th September 2016, the appeal hearing was reconvened and at this meeting the Financial Controller confirmed that the Complainant failed to provide sufficient evidence to support his claim that the sanction for breaching the Drug and Alcohol Policy in the workplace was disproportionate. A copy of a letter confirming same was read aloud and provided to the Complainant. Accordingly, the Financial Controller confirmed that she upheld the disciplinary decision that the Complainant’s behaviour on 9th June 2016 constituted gross misconduct, that this behaviour was in breach of the company’s Drug and Alcohol Policy and that the decision of dismissal was proportionate.   In her decision the Financial Controller confirmed that “employeeshave a legal duty under the Safety, Health and Welfare at Work Act 2005 not to be under the influence of an intoxicant to the extent that employees endanger themselves or others. It is the responsibility of every employee while at work not to be in a state of intoxication……and regards any breach of this rule as an issue of gross misconduct”. The Respondent argued that it is clearly stated in the Company’s Disciplinary Procedure that the company can apply any sanction, up to and including dismissal of an employee for gross misconduct.

At the meeting of 27thSeptember 2016, the Union Official requested that he and Complainant be granted an opportunity to speak directly to the General Manager, the General Manager. The Respondent advised that the Financial Controller replied that she alone was handling the appeal hearing and that the appeal decision was her decision alone. The request to meet with the General Manager was therefore denied and the appeal hearing concluded the final stage of the disciplinary process.

The Respondent advised that subsequent to the conclusion of the process, the General Manager received a letter from Complainant requesting him to overturn the appeal decision; that on 13th October 2016 a petition signed by 13 out of the 57 employee’s was received by the General Manager, asking that the Complainant be reinstated; and on 21st October 2016 the Union Official wrote to the General Manager requesting the General Manager to engage with him regarding the reinstatement of Complainant.

The Respondent submitted that in response, on 28th October 2016 the Financial Controller wrote to the Union Official and once again reaffirmed that despite the position of the General, his involvement in the process regarding Complainant’s employment was, and always would be, that of a witness to the events that happened, and therefore he had no authority to reverse or amend or comment on the disciplinary decision made on 29th August 2016 or the subsequent outcome of the appeal hearing of 23rd September 2016. The Respondent acknowledged that the decision taken to dismiss Complainant may have caused him severe distress, however the company had a duty of care to all their employees to provide a safe workplace.

Legal Argument

The Respondent contended that in accordance with the Unfair Dismissals Act 1977 - 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee. It argued that following a thorough investigation and disciplinary process in line with the agreed and practiced House the Complainant was adjudged to have breached the Respondents trust arising out a breach of the Drug and Alcohol policy. It maintained that the Complainant’s actions amounted to gross misconduct by being intoxicated in the workplace and where the Complainant put the health and safety of himself and his fellow colleagues at risk. Furthermore, the Respondent argued that the Complainant’s actions represented a fundamental breakdown in the trust relationship between the employer and employee. The Respondent stated it simply cannot condone the actions of Complainant in endangering himself and others by being at the workplace so inappropriately intoxicated. This misconduct goes to the root of the contract of employment because it serves to undermine the trust and confidence which is essential to the maintenance of the relationship between the employer and the employee.

The Respondent submitted that in relation to the sanction imposed by the Respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984, is as follows: “It is not for the Tribunal to seek to establish the guilt or innocence of Complainant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

It further argued that It is clear that a “reasonable employer in the same position and circumstances” would have done and decided as the they did. It maintained that had the Company not disciplined the Complainant appropriately, it would have given the impression to other employees that such conduct was not viewed by the company as incorrect, when in fact the company has made it very clear in its disciplinary procedures and intoxicants policy that this conduct was not acceptable. As such the Respondent maintained its decision to dismiss was reasonable and fair in the circumstances, and no unfair dismissal took place.

With reference to its health and safety obligations, the Respondent maintained it has a legal obligation under S.8 of the Safety, Health and Welfare at Work Act, 2005 which it advised clearly states that “every employer shall ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees”. On that basis, whilst recognising whilst recognising the difficult position the Complainant was left in upon the termination of his employment, the Respondent maintained it had no other choice given the serious health and safety concerns. It submitted that had it not taken the precautionary measure of removing Complainant from the workplace, the Respondent would have been held vicariously liable for any potential incident. Likewise, the Respondent argued that it simply cannot accept or condone any employee being intoxicated in the workplace.

The Respondent also contended that the actions of Complainant contributed fully to his dismissal. It submitted that the Complainant had breached the accepted and practiced Intoxicant’s Policy in the workplace. Accordingly, it is the Respondent’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts 1977-2015. This, it argued, is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council, UD 43/1978, where the Tribunal saw appropriate not to award any redress to the Complainant in light of his inappropriate actions. The Respondent also referred to in ADJ-00003564: A Complainant v A Meat Processing Plant where a dismissal was found to be fair following an employee’s abuse of the organisation’s Drugs and alcohol policy.

Accordingly, in light of the above arguments, the Respondent maintained that acted in a reasonable manner is seeking for the Complainant’s claim to be dismissed.

Summary of Complainant’s Case:

The Complainant contended that the dismissal was unfair in that both the investigation procedures were flawed, and that the decision to dismiss him was disproportionate.

The Complainant submitted that for an 18-week he had been off work recovering from a broken collarbone and had returned to work about a week and a half   before 9th June 2016. He was therefore anxious not to miss any more time from work. When he attended work on 9th June 2016 he advised that he did not feel very good after having had a very restless night. The Complainant maintained that he was in a lot of pain with his shoulder that morning, particularly as he had exerted himself when cutting lawns, the previous evening. The Complainant advised that he was on tablets for his shoulder injury, and during the night he took 2 tablets every couple of hours, and he took more tablets before heading to work in the hope of reducing the pain while at work. The Complainant acknowledged the tablets he had taken where above the recommended dosage.

When the Complainant reported to work he took his position on the end of the line as usual, but he struggled during the morning with the pain getting the better of him. He therefore took a further 2 Ponstan tablets at the 10am tea break.

The Complainant submitted that at around 11am he requested a colleague who is also the shop steward to seek permission to take him home, and when the shop steward sought this permission from the Line Lead it was refused. The Complainant’s colleague was advised that the Line Lead informed that the Complainant needed to seek permission from the Production Manager.

The Complainant advised he was upset over this as he was so weak and unwell. He advised that within minutes of the refusal to allow him to go home, the Production Manager appeared on the factory floor looking for the Complainant and requesting him to go to the boardroom.

The Complainant maintained he agreed to go to the boardroom on the belief that permission had been granted for him to go home, and a lift home had been organised for him. The Complainant maintained that due to a state of his weakness he tripped on his way over to the board room and suffered a nose bleed from the fall. He submitted that the side-effects from the Ponstan included indigestion, diarrhoea, constipation, nausea, vomiting are abdominal pain and drowsiness and he suffered some of those on that day.

The Complainant submitted that he was attended by a first aider when he arrived at the boardroom, and then the General Manager arrived and began warning him about the company drug and alcohol policy. The Complainant submitted he was then told by the General Manager that he was suspending him on full pay and had booked a taxi to take home. He was advised that the Production Manager, the Line Leader, the Health and Safety Officer and the General Manager had all observed the Complainant over morning and decided he was health and safety risk to himself and other employees. The Complainant maintained it was the General Manager who advised the Complainant that he had made the decision to suspend him and send them home. The Complainant maintained that his request to go home had “stung management into making a move to pin an allegation on him”.

The Complainant submitted that this was the first he knew about being under observation during the morning and that a covert observation of him had been applied. He argued that none of the managers had the decency or common courtesy to approach him directly if they had a concern about his well-being; and equally he was refused permission to be left home when this was requested on his behalf by a colleague. The Complainant submitted that there was a concerted collective effort which was contrived during the morning without his knowledge in order to lay an allegation against him regarding the drug and alcohol policy.

Referring to policy the Complainant maintained that the principles of the policy included offering assistance to employees who needed to overcome problems caused by alcohol and drug misuse, and where in the event of a supervisor/manager identifying a possible alcohol and drug related problem they should raise this with the staff member and make them aware of the availability of support services (occupational health Department, staff counselling welfare service). The Complainant contended that the Respondent failed to adhere to these principles and procedures as set out in this policy, and instead progressed immediately to a disciplinary procedure.

The Complainant also disagreed with the nature of the conversations that took place in the boardroom and denied that his behaviour was aggressive. He acknowledged that when he was told he was being sent home that said he would fight this but he did not mean anything untoward by making the statement.

In general, the Complainant submitted that if there was a genuine concern about his condition that morning, management should have offered him support rather than covertly observing him and then suspending him to enable them to progress a disciplinary procedure against him.

The investigation Procedure.

The Complainant maintained that the investigation procedure was flawed. He advised that on 22nd June 2016 he received a letter from the General Manager advising him an investigator was appointed to conduct an investigation into the issue. The Complainant received the terms of reference along with witness statements relating to the allegations. The Complainant advised that the General Manager also asked him to call him to confirm he would meet with the investigator.

The Complainant argues that these interventions by the General Manager demonstrates that the General Manager was involved in the investigation procedures beyond his role as a witness. The Complainant further maintained that the General Manager, who was also a witness to the events, was involved in crafting the terms of reference and in influencing the investigation procedures that were to follow.

The Complainant also maintained that the General Manager would have had access to, and would have read the statements of the Production Manager, the Line Leader, and the Health and Safety Officer prior to writing his own statement.

The Complainant advised that on the 28th June 2016, at the investigation hearing, his Union Official sought some clarification on the terms of reference and wanted to speak with the General Manager. The Complainant submitted that the investigator took great issue with this request and only reluctantly allowed him speak to the General Manager after the Union Official advised that the Complainant would not be in a position to proceed with the investigation meeting until his concerns were clarified. In these clarifications the General Manager confirmed he formulated the terms of reference and acknowledged they were his terms of reference. The General Manager also advised that in the event of the Complainant being found to have had a case to answer that it would be the General Manager who would set up a disciplinary hearing and issue a sanction. The Complainant therefore maintained that he was not getting a full, fair and proper procedure, and given that the General Manager was a witness in the matter he should not have had any other involvement whatsoever beyond his role as a witness.

The Complainant also argued that the investigator commented on his own personal use of Ponstan where he would not have suffered the effects that the Complainant had. The Complainant also alleged the investigator made great play out of the Complainant refusing to give his personal mobile phone number to the General Manager on the 9th June 2016 when asked to do so.

The Complainant raised concerns in relation to the statement from the Health and Safety Officer in that the evidence was not clear in relation to his observations of the Complainant on the morning of 9th June 2016, or in what way he observed the Complainant. The Complainant alleged the observations were done in a covert way, but this was not tested by the investigator. The Complainant maintained that the Health and Safety Officer’s evidence did not substantiate the allegations against the Complainant.

The Complainant also raised concerns about the evidence from the Line Leader and where the Line Leader confirmed that the Complainant’s colleague had come to ask him if he could leave the Complainant home. The Complainant maintained that the investigation did not confirm the comments made in Line Leader’s initial statement about the Complainant not looking right, of the Complainant staggering, or that he did not like the shape the Complainant was in.

The Complainant maintained that the General Manager has totally compromised a fair hearing by including in his statement details of other occasions relating to the Complainant and that these comments had a huge potential to influence the investigator. On that basis the Complainant maintained that the General Manager’s statement should have been discounted, however the investigator relied upon it. The Complainant maintained that when these observations were made by his Union Official at the investigation hearing they were not taken into account by the investigator.

The Complainant maintained that at no time in the course of the investigation was any proof whatsoever presented by witnesses that the Complainant had consumed intoxicants other than his own truthful admission of taking more than the prescribed amount of constant.

The Complainant also raised concerns regarding the conduct of the investigator in that the investigator did not exchange his written notes of meetings with the witnesses to the Complainant, and did not consider the concerns raised by the Complainant and his Union Official in relation to the evidence and witness statements raised by the Complainant. Furthermore, the Complainant argued that the investigator drew unsupported conclusions when making his findings, and changed the evidence he received to make unfair findings against the Complainant (e.g. the Complainant stated that whilst the General Manager in his statement said the Complainant was slightly aggressive yet the investigator’s record of the meeting and in his findings escalated this to very aggressive and threatening).

The Disciplinary Process

The Complainant advised that on the 13th July 2016 the Engineering Manager forwarded the investigation report to his Union Official advising he intended to commence a disciplinary procedure.

The Complainant’s Union Representative sought clarification as to why the disciplinary procedures were being conducted by the Engineering Manager and not the General Manager as the Union Official had been advised earlier that the report would be going to the General Manager, and if the report found against the Complainant then the General Manager would conduct the disciplinary process and issue sanction.

The Complainant’s Union Representative advised that he received a response from the Engineering Manager which stated that as the General Manager had been a witness it would be improper for him to personally conduct the disciplinary procedure, and in the interest of fairness he was obliged to pass the progression of the disciplinary procedure to another officer of the company who was not previously involved in this case. On that basis the disciplinary procedures were handed to the Engineering Manager to progress. The Complainant therefore argued that the General Manager had been involved in making a decision to progress the report to a disciplinary process, and accordingly while being a witness he still had a hands-on involvement in the control of the investigation up to that point. The Complainant advised that in the Engineering Manager’s correspondence to the investigator he informed the investigator that “I have taken over this matter from [the General Manager] following his receipt of your report.” The Complainant again maintains that this confirms the General Manager was involved both as a witness and in instructing the investigation procedure.

The Complainant submitted that at the disciplinary hearing his Union Official presented to the Engineering Manager his grave concerns about the investigation, and he also maintained that the Complainant had never received notes from the investigation meetings. At the disciplinary hearing the Complainant raised concerns again about what the Health and Safety Officer had been asked to do with regard to his observations of the Complainant on the morning of 9th June 2016; that no substantiation was made in relation to the Complainant being under the influence of intoxicants; that the Line Leader in his statement did not mention being asked to observe the Complainant on the morning of 9th June 2016 and that his comments about the Complainant’s demeanour had not been substantiated.

At the disciplinary hearing the Union Official again raised concerns to the Engineering Manager in relation to the General Manager making statements about the Complainant’s previous history which compromised a fair hearing; and that despite raising these issues with the investigator they were not mentioned in his report. Accordingly, the Complainant asked the Engineering Manager to consider these circumstances with regard to the findings made in the investigation. The Complainant also raised concerns in relation to the investigator’s approach to his Union Official where the Complainant maintained the Union Official was in effect ignored when he made any representations on behalf of the Complainant’s defence

The Complainant advised that the disciplinary hearing was adjourned and the Engineering Manager corresponded with the investigator with regard to the concerns raised by the Complainant’s representative.

The Complainant also advised that the response received by the Engineering Manager from the investigator confirmed that the investigator considered the statements made from the Complainant and that he viewed the Union Official s attendance to be there only to witness the investigation rather than being involved in the representing the Complainant’s defence. The Complainant’s Union Official submitted that his role as a full-time professional union official was to represent the Complainant and that the investigator has admitted he ignored almost totally the Union Official’s representations. The Complainant’s Union Official also maintained that the investigator confirmed he relied both heavily on the interviews, and primarily on the interviews conducted during the investigation. It was therefore argued that as the witness interviews conflict with each other, and that the Complainant’s submissions on these matters were ignored, the reliance of the investigator on the witness statements in making his findings represents a bias against the Complainant. The Complainant therefore held the view that the evidence submitted in the investigation was not a true reflection of matters, and that his challenge to the evidence was in effect ignored by the investigator.

The Complainant further submitted that the investigator’s view that evidence was in some cases false, particularly in relation to the time in the morning the Complainant spoke with his colleague on 9th June 2016 represented another bias against the Complainant as the Complainant contested that they did to each other before his colleague actually clocked in, yet the investigator chose to draw an incorrect conclusion about the time the conversations could have taken place, and as such gravely discredited the Complainant’s stated position. By declaring it false. The Complainant also argued that the investigator drew conclusions about a witness for refusing to answer detailed questions and therefore discredited his evidence, yet there is no indication of what questions the witness refused to answer. The Complainant also objected that the list of questions which the witnesses were asked was never provided to the Complainant.

The Complainant maintained that the investigator’s conclusions that the General Manager, the Production Manager, the Line Leader, and the Health and Safety Officer all testified that in their opinion the Complainant was intoxicated shows a further bias as in the written statements only the Production Manager mentioned anything about intoxicants relating to the June 9th incident. The Complainant therefore challenged the conclusions drawn by the investigator that the Complainant was in an unsafe condition most probably as a result of taking intoxicants.

The Complainant also raised concerns that in his view that the investigators use of the evidence was biased against him. The Complainant maintained that by the investigator stating the Complainant’s evidence was a deliberate attempt to fabricate the real facts surrounding the events on that day was a very bland statement to make against the Complainant without backing it up with the exact details of the evidence he was referring to. Again, the Complainant advised that he never received hand written version of the contemporaneous notes taken at the investigation interviews, and all that was provided to him was the printed versions of the investigator’s notes that appeared in the report, and after the report was issued.

The Complainant also submitted that his Union Official became aware that shortly after the Complainant was dismissed, the General Manager had spoken with a colleague of the Complainant on the shop floor stating he was annoyed and upset at the decision of the Engineering Manager and the Financial Controller to dismiss the Complainant and that he could not understand the Engineering Manager going as far as a dismissal or why the Financial Controller upheld that decision. The Union Official advised that following those comments he made a number of communications with the General Manager, and where the Complainant wrote to the General Manager personally, and a petition was signed by other colleagues all supporting his reinstatement.

The Complainant advised that he met with the Engineering Manager again on 23rd August 2016 and went through his concerns again along with pleading to be returned to his job. The Complainant advised he never received notes of this meeting. A decision was issued 29th August 2016 to uphold the investigation findings and recommended dismissal of the Complainant.

The Appeal Procedures

The Complainant advised he lodged an appeal of the dismissal, and this was heard by the Financial Controller on the 14th September 2016. The Complainant contested the conclusion of the appeal which stated “I concur with his decision on the grounds that your behaviour on the date of 9th June 2016, constituted gross misconduct as you were unacceptably intoxicated at work, and was in breach of the company’s Drug and Alcohol Policy”. The Complainant maintained that not a shred of proof was presented at any time to him of being intoxicated other than his own admission of overdosing on prescribed medication of Ponstan. The Complainant maintained that the Financial Controller’s decision appeared to be a foregone conclusion, and that she gave little or no consideration whatsoever to the concerns he again raised about the conduct of the investigation which are highlighted above.

Summary statement

The Complainant maintained that whilst management said they observed the Complainant from the early morning on 9th June 2016, they did not decide to do the proper thing by approaching him and enquire into his well-being. He therefore argued this was a dereliction of their duty of care to the Complainant and his colleagues.

The Complainant maintained that the Alcohol and Drugs Policy states that it is a breach of the policy for an employee to attend work under the influence of an intoxicant and where such a breach occurs it will result in a disciplinary action up to and including dismissal. He maintained that no considerations other than dismissal were given to his case. In light of the fact that he had consumed a prescribed drug he maintains that the decision to dismiss him for gross misconduct was unfair.

The Complainant also submitted that a review of the witness evidence demonstrates that only one of the eight witnesses expressed the view that the Complainant had taken intoxicants, yet the investigation found that the General Manager, the Production Manager, the Line Leader, and the Health and Safety Officer all testified in their opinion that the Complainant’s condition was that he was under the influence of intoxicants. The Complainant maintained that these opinions are not in the statements, and as the contemporaneous record of the meetings between the witnesses and the investigator were not exchanged with him the Complainant he has not been given a fair opportunity to respond and cross-examine the evidence against them. He asserted the investigation report exaggerated the evidence against him.

The Complainant argued that the General Manager totally compromised a fair hearing by including in his statements the details of other occasions in the past. The Complainant submitted that these comments were prejudicial and that the General Manager statement in its totality should have been deemed inadmissible. He was not on any formal warning for his behaviour or conduct.

The Complainant maintained that in light of all the issues presented that there was a lack of fairness, a lack of due process and procedure and as such the dismissal could not be deemed to be fiar under the circumstances.

Findings and Conclusions:

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4)(a) of the Act states without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

Procedural Fairness

In this case the Complainant has argued that the procedures he was offered were unfair for a number of reasons.

He maintained that on the day in question, as it became known to the Respondent that he may have been impaired due to an intoxication, that unknown to himself he was then observed for a number of hours and it was only when he requested permission to be allowed go home that he was removed from the workplace, suspended, and subject to an investigation and disciplinary procedure that led to his dismissal.

In addition to being covertly observed, he also advised that the Respondent, when it had suspicion of his condition, it failed to act in accordance with its own Drugs and Alcohol Policy where under the principles of the policy it was it was obliged to offer assistance to employees who need to overcome problems caused by alcohol or drug misuse.

The procedures within the policy state that where a supervisor or manager identifies a pattern or work performance or behaviour indicator of a possible alcohol and drug-related problem he/she should ask for a second opinion from a H&S committee member, and then if they agree there is an issue, he/she should raise this with the staff member and make them aware of the availability of support services. The procedure further states that if it is deemed that the employee’s behaviour presents a risk or danger then the correct course of action would be to remove the employee from the tasks and make arrangements for the person to be collected from the plant and left home. It also advises that the manager should keep factual and accurate written records of instances and interaction with the employee where these records should be stored in a confidential file, and the file will be anonymous until or unless suspicion is confirmed. The procedures also state where an employee’s work performance or behaviour remains unsatisfactory, despite availability of services, the normal disciplinary procedures will be activated specifically in relation to these issues. The employee will be entitled to representation and due process.

In addition, the policy also puts responsibilities on employees not to attend work when under the influence of an intoxicant, and where they also have a legal duty under the Safety Health and Welfare at Work Act 2005 not be under the influence of intoxicant to the extent that employees endanger themselves or others. The policy states it is a serious breach of this policy for an employee to attend work under the influence of intoxicant. In the policy the company states it does not permit the possession, or use, of any intoxicant on company property, and regards any breach of this rule as an issue of gross misconduct. It states this rule however does not apply to over-the-counter medication. In relation to employees taking prescribed drugs the policy states that such employees should, with primary regard been given to the physician’s advice, establish if these drugs may adversely affect their work and safety, and if this is the case they should inform their immediate supervisor.

With regard to the alcohol and drug policy it is clear from the evidence that genuine concerns existed in relation to the Complainant’s behaviour on the day in question. Is also accepted that the Complainant was on prescribed medication and may have taken more of this medication than was safe on the night before he came to work, and when at work that morning.

There is a dispute in relation to the evidence provided in that on the one hand the Complainant maintains that as he was feeling unwell as a consequence of taking the medication and he had sought permission to go home on the day in question, whereas the Respondent maintained that the Complainant had asked for time off the following day and it was during that discussion with him that his manager developed concerns about the Complainant’s behaviour. The evidence provided at the subsequent investigation corroborates that the Complainant may have come to a colleague and asked him to seek permission to take the Complainant home, but he was not permitted to bring the Complainant home.

What is clear is that the Complainant did present on the day in question in a state that could reasonably be regarded as being under the influence of an intoxicant, that he never advised any of his managers that he had taken prescribed drugs which may have impaired his performance, and following a period of observation he was removed from the workplace and sent home. The fact that the Complainant was not behaving safely on 9th June 2016 is not in dispute.

Based on the aforementioned, I find it was reasonable to remove the Complainant from the workplace and for him to be sent home. Such actions are in line with the Alcohol and Drugs Policy.

Having considered this evidence I find that the Complainant was in breach of his own obligations under that policy in that he failed to advise the Respondent that he was taking prescribed medication that could impair his performance. This breach has contributed to the situation that evolved, however it is not that breach that he was found guilty of.

I also find that the Respondent did not reasonably apply the procedures set out the policy in that for whatever reason, despite the obvious concerns management held about their observations from early in the morning, it prolonged its observation of the Complainant, which has perhaps added to the difficulty in establishing the condition of the Complainant on the day. Interestingly, rather than seeking to support the Complainant as the policy set out, it immediately progressed to a more formal stage.

I find that the Respondent was entitled to remove the Complainant from the workplace on the day in question as it had genuine safety concerns about his behaviour. In addition, as the behaviour of the Complainant was a genuine concern, and in accordance with the organisation’s Drugs and Alcohol Policy, the Respondent was entitled to conduct an investigation into matters to consider whether disciplinary procedures were warranted. I therefore find there was sufficiently substantial grounds to conduct an investigation. Once it had decided to take this path the Respondent was obliged to ensure the Complainant was offered a fair procedure, and due process.

In accordance with sections 6(4) and 6(7) of the Act I must therefore consider the reasonableness of the actions of the Respondent in relation to the conduct of the investigation and the subsequent disciplinary action that led to the dismissal. In this regard the Complainant has raised concerns with how the investigation was initiated and progressed. He has maintained that despite his protestations during the investigation about the investigation procedures, and during both the subsequent disciplinary and appeal hearings, his concerns were disregarded. I have therefore to consider whether the procedures were biased against him, and whether he was afforded due process.

The Investigation

The evidence supports that the General Manager who was a key witness to the allegations under investigation played a part in crafting the terms of reference, saw the statements of other managers before his own statement and that of the other managers were presented to the Investigator, and (as confirmed by the manager holding the disciplinary hearing) reviewed the investigation report before a disciplinary procedure was authorised. Whilst the involvement of the General Manager was objected to by the Complainant through his representative at the start of his meeting with the Investigator, and the General Manager was alerted to the potential impartiality at that stage, he nonetheless continued to oversee the investigation. Despite the Complainant raising questions about the General Managers involvement, the General Manager still received the investigation report to decide on whether a disciplinary hearing was to follow, and where he subsequently authorised the disciplinary procedures. This raises fundamental questions regarding the impartiality of the investigation process and is contrary to one of the fundamental rights of any fair procedure Nemo Iudex In Causa Sua in that the General Manager acted both as a witness to the complaints against the Complainant, and also sanctioned the subsequent disciplinary hearing.

In addition, the conduct of the investigation was also challenged by the Complainant. In this regard the Complainant maintains that his representative was denied the ability to actively represent him or to effectively challenge and cross examine the evidence presented. It is noted in the evidence provided to the within hearing, that the investigator acknowledged in correspondence to the manager holding the disciplinary hearing that he only considered the responses of the Complainant in the investigation and not the representations made by the Union Official representing the Complainant.

The Complainant maintained that he did not receive the notes of the investigator’s meetings with the witness. He also maintained that some of his evidence was disregarded where the investigation concluded “I find that much of [the Complainants] evidence was a deliberate attempt to fabricate the real facts surrounding the events on that day”. It was further contended by the Complainant that there was no proper examination of the evidence, particularly where the Complainant’s witnesses testified that they did not notice anything different with the Complainant on the morning in question, yet the Investigation concluded, based on the evidence provided by the General Manager, the Production Manager, the Line Leader and the Health and Safety that in their opinion the Complainant was under the influence of intoxicants. It was noted that in the written statements and notes of the interview with the investigator, with the exception of the Production Manager, that none of the other managers evidence referred to intoxication. Despite this the investigation concluded the Complainant was under the influence of a toxicant, and did not make any reasonable enquiry as to whether the intoxicant was related to the prescribed medication taken by the Complainant, or due to some other substance. Whilst it is acknowledged that all the managers expressed concern regarding the Complainant’s behaviour on the day, the decision that this was a result of intoxicants, and therefore an abuse of the Alcohol and Drugs Policy had a significant implication for the Complainant. In light of the potential outcome which included the dismissal of the Complainant, the nature of the intoxicant warranted a more thorough investigation, particularly in view of the evidence presented to the investigation, and the procedures set out in the Alcohol and Drug Policy where a difference in approach is applied for prescribed drugs. It was therefore incumbent on the investigation to clearly establish these facts, rather than dismissing them on what appears to be the investigator’s view that the prescribed drugs did not have the same effect on him when he used them.

I also find that the investigation conclusions, where the investigator asks himself if the Complainant was having difficulty with his medication how did he cycle 5.5 miles to work that morning, and relies on this rhetorical question as a basis to discredit the Complainant’s evidence. Whilst this question asked by the investigator remained unanswered, the conclusion drawn appears unbalanced in light of the evidence, as identified by the investigator, that the Complainant’s condition deteriorated during the morning and it was only after at least two hours of observation that any action was taken against him. This would seem to support, at least to some level, that the Complainant may have been having an adverse reaction to his prescribed medication and his condition deteriorated after his arrival at work, a response he had submitted in his evidence to account for his behaviour after taking more medication at 10am. Indeed, if the Complainant had been experiencing an adverse effect from his medication the decision to impose the ultimate disciplinary sanction might have changed in light of the Respondent’s obligations under its Alcohol and Drugs Policy. However, no reasonable investigation of the effects of medication the Complainant was undertaken, and in effect the Complaint’s evidence, no matter how incredible or implausible it may have appeared to the investigator, was not objectively tested. I

It is also noted that the investigator dismissed the proposition that the Complainant may have spoken to a colleague on the basis the colleague had not clocked in. Yet it was very conceivable that they may have spoken before the colleague clocked in. However, the Investigation has not demonstrated it tested this assumption before deciding it was totally false and consequently discrediting the Complainant’s evidence.

In addition, I find the lack of transparency in the conduct of the investigation, where in particular the Complainant was not furnished with any meeting notes, and where the Complainant’s representative was in effect disregarded during the investigation, raises questions about the reasonableness of the Respondent in its conduct of the investigation.

Juris prudence has established the need for fair procedures. For example, in Philomena Farnan v KM Healthcare Enterprises (UD 847/2012) the need for impartiality has been held as important for the conduct of fair procedures. The involvement of the General Manager in the formative stage of the investigation, and again in the decision to authorise a disciplinary hearing, whilst he was also a witness who testified against the Complainant dose not sufficiently separate the management of the procedures from those prosecuting the Complainant and as such could not be deemed to be a fair procedure, particularly as the General Manager remained central to decisions made at the outcome of the investigation. Similarly, based on the aforementioned, the treatment of the Complainant’s evidence compared to the treatment of the evidence against him during the course of the investigation, and again by the failure of the Disciplinary or Appeal process to demonstrate it either understood or that it seriously considered the substantial procedural concerns raised by the Complainant, demonstrates the process lacked impartiality.

In addition, the recorded rejection by the investigator regarding of the role of the Complainant’s Union Official to represent him demonstrates a lack of fair procedure. Whilst there is no requirement for an internal investigation to adhere to the rules of court, it is well established that where an employee is facing a possible sanction of dismissal he or she is entitled to a reasonable level of representation, and in addition should be allowed access to all evidence including the records of interviews conducted by the investigation, to allow him or her cross examine and test the evidence against them.   The case of Lyons V Longford Westmeath Education Training Board, emphasised the right for effective representation on behalf of a Respondent at investigations that may subsequently lead to a dismissal. This case also identified where investigative processes can lead to dismissal, cross-examination is a vital safeguard to ensure fair procedure.

I find that in the within case the Complainant was not provided with this opportunity, and was interviewed without knowing what specific evidence had actually been presented against him in light of the fact the investigation did not provide the Complainant with its interview notes, and made its conclusions without providing this evidence to the Complainant. The Complainant therefore was not afforded a fair opportunity to challenge the evidence which the investigation relied upon to draw its conclusions, and these were the conclusions which led to his dismissal.

Disciplinary and Appeal Hearings

These procedural objections were also raised at the disciplinary hearing and appeal hearing and I find that they were not sufficiently considered at these stages thereby preventing the Complainant with the opportunity to a fair procedure. Following an investigation, it is not good enough to just hold a disciplinary hearing and a subsequent appeal. During these stages an employer, particularly at the appeal stage, is required to take into account the entirety of the factors that led to the decision to dismiss (PPG Architectural Coatings Ireland Ltd/Sigmakalon Ireland Ltd v Hannifin UDD169). I find that the Respondent failed to address the substantial procedural concerns raised by the Complainant during the investigation and appeal stage

In summary, In relation to procedural fairness, despite the obvious behaviour of the Complainant on the day, I find that the Respondent did not comply with the general principles of natural justice and fair procedures. On that basis, I find the Complainant was unfairly dismissed.

Decision:

For the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977 and conclude that the Complainant was unfairly dismissed by the Respondent.

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.

Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded. The Complainant has sought reinstatement; however, the Respondent has submitted that in light of the breach intrust between the parties compensation should be considered as the form of redress.

Based on the submissions made I find that compensation is the most appropriate remedy.

In awarding compensation Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances…”

Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given as to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer; the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

In circumstances where it is undisputed that the Complainant had presented at work in an unsafe manner, and where he has acknowledged he had taken prescribed drugs at intervals that were shorter than the prescribed manner, the Complainant had an obligation to inform the Respondent under its Alcohol and Drugs Policy, but he failed to do so in a sufficiently timely manner. He therefore contributed to an unsafe environment for him and for others.   On that basis I conclude the conduct of the employee has contributed to the case before me.

I have also found that the employer has contributed to the unfair dismissal in that its conduct of the investigation process and the disciplinary and appeal hearings did not afford the Complainant a fair procedure or due process and as such rendered the dismissal unfair.

In mitigating his circumstances, the Complainant has advised that he has sought employment since his dismissal but has not been successful in light of his skillset and available jobs in the locality. He has not however demonstrated a particularly focussed approach to obtaining alternative employment, although I acknowledge the genuine difficulties for him to secure similar employment in the area.

Therefore, I consider it just and equitable in all the circumstances to award the Complainant €28,675, reflecting 50% of the actual losses entitled under the Act. The Respondent is therefore ordered to pay the Complainant a total of €28,675 in compensation (subject to any lawful deductions).

Dated:   15/02/18

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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