UDD1812

The fact of dismissal was not in dispute.

Background

The Claimant was employed by the Appellant from 27 January 2014 until the date of his dismissal on 5^thOctober 2015. The Claimant was a Production Operative employed in the Appellant’s bakery which manufactures goods for public consumption. At the time of his dismissal he was earning €19,500 per annum with the Appellant.

Summary position of the Appellant.

The Appellant’s disciplinary policy and the Claimant’s contract of employment state that an employee may be dismissed for serious misconduct. In those documents serious misconduct is defined, among other things, as attending work under the influence of alcohol / unprescribed drug substances.

On 19^thSeptember 2015 at 8.30pm the Appellant’s night shift co-ordinator Mr F received a phone call from security stating that a member of the public was at the gates of the premises complaining that somebody who had been driving erratically had driven onto the site. The night shift manager was informed that the member of the public had called An Garda Siochana in relation to the matter.

Mr F established that the car in question belonged to the Claimant. Mr F received no phone call from the Claimant as to why he was attending work late for his scheduled shift.

The Appellant’s process manager Mr M noticed that the Claimant had not arrived to work on time. At 8.40pm, when the Claimant arrived at work, Mr M asked the Claimant whether he had contacted anybody about attending late for work and the Claimant confirmed he had not. Mr M noticed that the Claimant looked different than usual and looked like somebody who was drunk. Mr F contacted Mr M and asked him to bring the Claimant to see Mr F. Mr F noticed when he met the Claimant that he was unable to walk correctly and would not make eye contact. Mr F removed the claimant from the production floor immediately and brought him to the locker room to talk. When questioned the Claimant became aggressive and waved his hands in the air. Mr F detected a smell of alcohol from the Claimant.

Gardai arrived on site and interviewed the Claimant and Mr F informed the Gardai that he was sending the claimant home. Before sending the Claimant home Mr F asked him if he had been drinking alcohol and the Claimant agreed that he had ‘about four hours ago’. Mr F offered to drive the Claimant home but he decided to walk.

On 21^stSeptember the Appellant’s HR department sought to contact the Claimant to arrange an investigation meeting but did not succeed. On that date also the Claimant’s manager, Mr Z, wrote to the claimant notifying him that he was formally suspended with pay pending investigation and inviting him to attend an investigatory meeting on 24^thSeptember 2015 to explore two allegations

• 
  •That he was under the influence of alcohol while at work

  •That he was not fit to be at work and was therefore in breach of the health and safety policy as he was a risk to both himself and others.

Following that meeting the Appellant’s operations manager Mr D issued an invitation to the claimant to attend a disciplinary meeting to explore two allegations following the investigation process, viz:

• 
  •That he was under the influence of alcohol while at work

  •That he was not fit to be at work and was therefore in breach of the health and safety policy as he was a risk to both himself and others.

At that meeting on 1^stOctober 2015 the Claimant contended that he was taking medication which helped him sleep and that his erratic driving was because he was late for work. In addition he said that he had received a phone call from Latvia before leaving for work on 19^thSeptember 2015 which caused him stress.

On 2^ndOctober a disciplinary outcome meeting was convened by Mr D. Mr D concluded that the Claimant’s actions amounted to gross misconduct and Mr D made the decision to dismiss the Claimant with immediate effect. The Claimant was offered the right to make an appeal within 10 days.

Mr D issued a letter on 5^thOctober confirming the decision to dismiss and advising that the Claimant had a right of appeal to the plant manager Mr BM. The Claimant did not appeal the decision to dismiss.

The Claimant worked in an environment of food production which involved the use of high speed production equipment. Consequently, safety and hygiene are critical factors in the Appellant’s workplace.

The procedures followed to investigate the events of 19^thSeptember were fair and the disciplinary process was fair and impartial. The Claimant was offered the right of appeal which he declined. The Claimant has an obligation to exhaust internal procedures prior to making a complaint that he had been unlawfully dismissed and he failed to do so.

The Appellant contended that the decision to dismiss was in accordance with what a reasonable employer would have done in the circumstances.

Summary position of the Claimant

The Claimant was extremely stressed on 19^thSeptember following receipt of information as regards his mother’s illness.

He was late for his shift and alerted the Appellant by text that he was late. He drove faster than he should have in getting to work.

The Claimant was not under the influence of alcohol or drugs. He did take prescribed herbal drops to relieve stress but those drops did not affect his ability to drive or his ability to work. The Claimant was instead affected by stress.

The procedure utilised by the Appellant was unfair and the guilt of the Claimant was pre-determined. He was advised at the end of the investigative meeting and before medical evidence was received that there would be a disciplinary meeting.

He was not provided with the statements of witnesses prior to the investigation hearing. No consideration was given to his poor communication skills in light of the fact that English was not his first language.

Although he brought the drops to the disciplinary meeting no investigation of those drops was carried out. The chair of the disciplinary process Mr D did not have the authority to dismiss the Claimant.

Mr D was not an impartial person having been involved in the matter from the outset as a result of being on the circulation list for an incident report e-mail which was circulated by Mr F following the events of 19^thSeptember. No right to cross examine witnesses was afforded to the Claimant.

The internal appeal process was misleading and contradictory in the manner it was written and the manner it was presented to the Claimant. The Appellant’s handbook states that an appeal may be made to the managing director. The contract of employment refers to an appeal to a manager or other appropriate person. The letter of dismissal advised that the Claimant could appeal to the plant manager, Mr BM.

Mr BM was not independent as a result of having been aware of the events of 19^thSeptember from a health and safety incident report e-mail circulated to him after those events.

No investigation of the Claimant’s prescribed drops was ever carried out and the drops produced by the Appellant are no longer available for examination having been appropriated by the Appellant.

The Appellant did not observe the Code of Practice on Grievance and Disciplinary procedures made under the industrial Relations Act, 1990 (S.I. 146 of 2000).

In any event, and without prejudice to the position of the Claimant, the sanction of dismissal was disproportionate.

Summary of Testimony on behalf of the appellant

Evidence of Mr F

Mr F is a shift manager with the Appellant company.

He stated that approximately 70 persons operated on the shift

He said that whenever a person is late for a shift the requirement is that they phone a designated phone to make the management of the shift aware of the situation. He said that on 19^thSeptember no such call was received from the Claimant and no arrangement as regards notification by text was in place.

He said that the Appellant had a clear policy as regards intoxicants and regularly convened ‘tool box’ talks emphasising health and safety matters including the unacceptability of staff being under the influence of an intoxicant while at work. Those talks emphasised the production floor as a risk environment.

Mr F said he received a call from security at 8.30pm saying that a member of the public was at the gate complaining about the driving of somebody who had entered the site. He identified that the car belonged to the Claimant and that the Claimant was marked absent on the record of absences on that shift.

When he saw the Claimant it was clear that there was something wrong with him and that he could not walk correctly. Mr F immediately removed the Claimant from the floor and brought him to a locker room where the Claimant became very aggressive waving his hands in the air and raising his voice. Mr F asked the claimant why he was late and he apologised. Mr F detected the smell of alcohol from the claimant.

The security hut rang Mr F and advised him that the Gardai were at the gate. Mr F brought the Claimant to the security hut where the Gardai interviewed him. The Gardai subsequently advised Mr F that they could not take any action because they did not see him driving. Mr F advised the Gardai that he would be sending the Claimant home in light of the fact that nobody could be on site if he was under the influence of anything. The Gardai advised Mr F that they would be waiting at the gate for the exit of the Claimant.

Mr F sent the Claimant to the canteen but subsequently found him in the smoking area. The Claimant advised him that he had consumed alcohol about four hours earlier that day.

Mr F told the Claimant to go home and offered him a lift. The Claimant refused saying that he wanted to walk.

Under cross examination Mr F stated that the Claimant was staggering as he approached him on the production floor.

In response to questions from the Court Mr F confirmed that it was his responsibility to decide if the Claimant could be on the factory floor.

Evidence of Ms OM

Ms OM is a HR business partner in the Appellant’s employment.

Ms OM gave evidence that she was present during the investigation and disciplinary meetings. She stated that she was not a decision maker and did not have a role in either processes other than as HR support to the process. She said that the Claimant presented a bottle at the disciplinary meeting which she ‘googled’ and returned to the Claimant.

She stated that she did not, at the disciplinary meeting, advise the Claimant that she googled the bottle he had supplied

She stated that there was no written report of the investigation carried out by the Appellant.

Summary of testimony on behalf of the Claimant.

The Claimant gave evidence.

On the day of the incident he received a call at home from his mother in Latvia advising that she was ill and as result he was stressed.

He said that he takes stress relieving medicine which does not require a prescription in Latvia and that he took some of that medicine before going to work on 19^thSeptember.

He said that he drove too fast on his way to work that day and he was excited and stressed on the job.

He stated that he walked normally at work that day and had taken no alcohol that day.

He confirmed that he did tell his manager, Mr F, that he had been drinking that day but he did so because he was angry and stressed.

He said that his herbal medicine had an alcohol concentration of considerably less than 1%.

He stated that he had decided not to appeal the decision to dismiss him because he would be wasting his time and instead he decided to go to Court.

Under cross examination he stated that on the night in question he never mentioned his herbal drops.

He stated that he decided not to bring anybody as a representative during the investigation or disciplinary process.

He stated that he never received a copy of the Appellant’s drug and alcohol policy and never attended a toolbox talk in the Appellant company.

In response to a question from the Court the Claimant stated that he refused a lift home on the night in question from Mr F saying he wished to walk home. He stated that he was capable of driving his own car home but preferred to walk. He stated that subsequently, when speaking to the Gardai, he was offered a lift home by them and he accepted that.

Discussion and conclusions

Some facts as regards this matter are not in dispute. The Claimant did attend for work late and he had arrived at his workplace in a manner which resulted in the attendance of An Garda Siochana arising from a complaint from a member of the public.

The first matter for the Court to consider is the conflict as between the Claimant and the Appellant as to whether the Claimant was under the influence of alcohol when he attended for work on 19^thSeptember 2015. The Appellant night shift manager, Mr F, gave evidence that he smelled alcohol from the Appellant and that he staggered as he walked towards Mr F. Mr F stated in evidence that it was his responsibility to determine whether an employee should be allowed onto the factory floor on the shift in question. He formed the view that the Claimant was intoxicated to the degree that he was not in a condition to be allowed onto the factory floor.

The Claimant stated that he had taken a herbal medicine containing a tiny amount of alcohol and that he was fully capable of carrying out his work and indeed capable of driving his car. He stated that he did not stagger or otherwise walk in any manner that was not normal.

The Court has considered the contradictory evidence of the Claimant and Mr F. The Court notes the statement of Mr M but does not attach evidential value to that statement in the absence of Mr M at the Court’s hearing. The Appellant in his evidence stated that he had told Mr F on the night of 19^thSeptember that he had been drinking that day and further notes that he explained the fact of his making that admission by stating that he was angry and stressed on the occasion. The Court notes also that the Claimant accepted in evidence that he made no mention on 19^thSeptember of his herbal medicine. The Court notes the evidence of the Claimant that he unimpaired on the night of 19^thSeptember such that he could drive a car and carry out his work. The Court notes that the Claimant, while asserting his capacity to drive, chose not to do so on his journey home and chose to accept a lift from the Gardai instead while leaving his car behind him on the site of the Appellant.

The Court does not find it credible that the Claimant would not, if it had a bearing on the matter, have mentioned his herbal medicine to Mr F on the night of 19^thSeptember and instead admitted to drinking alcohol that day. The Court finds on the balance of probability that it was entirely reasonable for Mr F to conclude that the Appellant attended for work on 19^thSeptember under the influence of alcohol to the degree that he was unfit for work on that evening.

The Court has considered the contention of the Claimant that the procedures employed by the Appellant were unfair. The Court notes that the incident on the 19^thSeptember was a health and safety event on the site and that an e-mail recording the detail of that event was circulated by Mr F to a range of people carrying responsibility on the site and in accordance with protocol on the site. The Court understands that the e-mail in question included Mr A and Mr D amongst others in its circulation list. Both Mr A and Mr D were subsequently involved in the investigation and disciplinary procedure as investigator and convenor of the disciplinary process respectively. The Court finds that the fact of notification in accordance with protocol of Mr A and Mr D as responsible managers on the site of the occurrence of a health and safety incident cannot be found as vitiating the subsequent investigation and disciplinary procedure in which they both played a part. The Court in coming to this conclusion takes into account the practical challenge for the Appellant of conducting an investigation and disciplinary process with the participation of managers of an appropriate level who have a range of site responsibilities.

The Court finds that the investigation and disciplinary procedures were carried out in a manner which fully separated both processes. The Court in this regard accepts the evidence of Ms OM that she had no role in either process other than as HR support to process itself. The Court finds that at both these stages the claimant was offered representation and declined to be represented.

The Court finds that the Claimant was notified in writing in advance of both the investigation meeting and the disciplinary meeting of the matters under investigation and allegations giving rise to a disciplinary meeting respectively. The Court notes that the Claimant was not offered the opportunity to cross examine witnesses and also notes that no contention is made that he sought such a facility. The Court, taking all matters into account, does not find that this failing in the circumstances of this case, rendered the procedures fatally unfair.

The Court is satisfied that the Claimant was made fully aware in advance of the matters under consideration at the investigation and disciplinary hearing and is satisfied that he was given a full opportunity to state his case and to address any allegation made against him.

The Court notes that the Claimant did not appeal the decision to dismiss him which was notified to him on 5^thOctober 2015. The Court accepts that the identity of the forum to which an appeal can be made was described differently in the Appellant’s handbook and in the contract of employment. The Court also notes the Claimant’s submission that at the end of his disciplinary hearing on 2^ndOctober he was advised that he could appeal to the HR department.

Nevertheless, the Claimant was unequivocally and clearly advised in writing on 5^thOctober 2015 in the letter conveying the decision to dismiss him, that he could appeal that decision to the site manager who was named in the letter. The Court does not accept that the Claimant was in any way confused as to who and where he could appeal the decision to dismiss him when that decision was conveyed to him. In evidence to the Court the Claimant stated that the reason he did not appeal the decision to dismiss him was because he decided he would be wasting his time.

Having considered all aspects of this matter and taking account of the circumstances the Court finds that the procedures employed by the Appellant were fair and that any failings were not of such a significance in this case as to render the dismissal procedurally unfair.

The Court notes that the contract of employment of the Claimant and the handbook supplied to him identified that serious misconduct could lead to dismissal and that both documents defined serious misconduct as including attendance at work under the influence of alcohol or non-prescription drugs. The Court takes into account the fact that the production floor of the Appellant was a risk environment involving fast moving machinery and consequently accepts that the Appellant’s emphasis on health and safety incorporating the definition of serious misconduct is reasonable

In those circumstances and in the circumstance whereby the Court has earlier found, on the balance of probabilities, that Mr F reasonably concluded on the 19^thSeptember that the Claimant attended for work under the influence of alcohol and that the investigation and disciplinary procedures employed were fair, the Court finds that the decision to dismiss the Claimant was proportionate and within the range of responses of a reasonable employer to the events of 19^thSeptember.

The Court also finds that there is an obligation on the Claimant to exhaust available internal procedures and that the Claimant failed to do so.

For the reasons stated above and taking account of the failure of the Claimant to exercise his right of internal appeal, the Court finds that the Claimant was not unfairly dismissed.

Determination

The appeal is allowed and the decision of the Adjudication Officer is set aside and substituted with this determination.

Signed on behalf of the Labour Court



Kevin Foley
19 February 2018______________________
MNChairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.