Complainant

Respondent

Anonymised Parties

A Council employee

A County Council

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00009880-001

23/Feb/2017

The Complainant was moved off his Firefighter duties to General Operative duties as a   disciplinary action and was seeking to be reinstated.

The Claimant commenced as a Firefighter in 2001.

In 2014 the Employer became aware the Claimant was facing prosecution relating to possession of narcotics. The Claimant was suspended and pleaded guilty at the Court Hearing and due to the fact that the Claimant had undertaken all that was required of him to deal with his addiction the charges were stuck out by the Judge.

The Employer conducted their own investigation and afterwards transferred the Claimant to General Operative duties.

The Claimant acknowledges his actions and that he deserved disciplinary action but that the permanent transfer to a General Operative sanction so too excessive and extreme in all the circumstances of this particular case.

The Claimants original contract did not provide for a transfer.

The Claimant is seeking to be returned to his full time role as a Firefighter.

On the 19th September 2014, the Chief Fire Officer wrote to the Claimant in relation to a matter before the Courts regarding an allegation against the Claimant regarding charges for drugs possession and possession with intent to supply.

The letter outlined the fact that the matter was considered to be of the utmost seriousness having regard to the Claimants position of trust as a full time fire-fighter with the Council. As the matter could be considered an act of gross misconduct, under both the Grievance and Disciplinary Code, and the Local Government Code of Conduct for Employees, under the Local Government Act 2001, The Claimant was suspended on full pay pending the outcome of the court proceedings and a full investigation.

The Claimant was before a District Court in relation to charges under the Misuse of Drugs Act.

The Claimant pleaded guilty and was charged before the Courts with possession of drugs and with the possession of drugs for the purpose of selling or otherwise supplying to another.

On 11th February 2015 an Independent person was appointed to investigate this very serious matter, under the City and County Councils’ Grievance and Disciplinary Policy for fulltime firefighters together with the Local Government Code of Conduct for employees.

Paragraph 2.2. of the Code of Conduct for Employees confirms the requirement to act in a way which enhances public trust and confidence and also ensure that the employees conduct does not bring the integrity of their position or that of local government into disrepute. Under the Grievance and Disciplinary Code such actions are considered a very serious breach of an employee's contractual terms and therefore fall within the meaning of gross misconduct.

The Claimants actions in relation to these matters were viewed as being particularly serious having regard to the position of trust he held as a fulltime firefighter.

In taking into account the investigators report the Claimant was invited to attend a disciplinary interview on 22nd April 2015 where the parties were reminded that given the position held by the Claimant that the issue could be considered gross misconduct.

The Line Manager considered in full the report and representations made by the Claimant at the disciplinary hearing held on 22nd April 2015.

The fact that the Claimant pleaded guilty to charges of drugs possession and possession with intent to supply was and is still considered a very serious matter. In truth such conduct by an employee of any blue light emergency service should and would have lead to a termination of employment.

However, the Director took account of the personal circumstances involved as outlined by the Claimant.

As a result the Claimant was not dismissed. Instead he was appointed to the position of General Operative with effect from Monday the 24th of August 2015.

The Director made the decision to allow the Claimant to remain in the employment of the City and County Council but not as a fire-fighter.

The Claimants solicitors submitted a formal appeal to the decision to the Chief Executive, the hearing of which was held on 20th October, 2015.

Having examined all the evidence presented in respect of the case, and the statements and submission made by the Claimant, as part of the appeal hearing, the Chief Executive decided to disallow the appeal and confirmed the decision of the Director.

As a Local Authority and Fire Service provider, we cannot have a situation where, as a result of the actions of a staff member, the confidence of management, colleagues and the people we serve is breached or lost.

Fire fighters are our first responders and their conduct is critical when it comes to the safety of their colleagues and members of the public.

They are considered persons of trust in the community and with their colleagues serve the public when they are at their most vulnerable.

The drug charges and subsequent guilty pleas are a serious breach of that trust and consequently the Claimant contractual obligations to the Council as a fire fighter.

Additionally on Health and Safety grounds, the Council would be remiss in their role as an employer if they did not take all reasonable action to "Prevent any improper conduct or behaviour likely to put the Safety Health and Welfare of Employees at risk "(the Welfare at Work Acts 2005 and 2010).

A very fair and lenient decision was taken to allow the Claimant to remain in employment.

The Council is satisfied that the statutory provisions contained within the Local Government Acts provide for the Chief Executive to assign staff within the local authority as he sees fit.

In summary, this was a very serious disciplinary matter, the Claimant was punished by way of the sanction imposed. In any other circumstances the Claimant should have been sacked for gross misconduct.

Adjudicator, the Council is satisfied that it acted in more than a fair and reasonable manner in dealing with this case, and respectfully request that you to find in its favour in respect of the complaint as submitted.

Following submissions by both sides I recommend the following;

The Claimant would return to his full time firefighter post with effect from one month after the date of this Recommendation and will be required to undertake and successfully complete such training as would be required by the Council and any pay adjustment would be retroactive to the date of this Recommendation.

The Claimant will undergo a full medical prior to resuming his duties or training and his return to the Firefighter position is dependent on a clean bill of health, including being free of narcotic substances.

The Claimant will return to his exact service point (and current salary amount for that point on the scale) that he left the post when he transferred to the GO post. His service while suspended and in the GO role will count towards his pension. No retrospection of pay is recommended.

The Claimant will be required to undergo periodical and unannounced medicals by the Employer’s appointed doctors at any time in the future and any positive result for narcotics will result in a gross misconduct charge and possible dismissal.

The Claimant will complete a Garda vetting assessment.

There is no compensation to be paid to the Claimant.

Return to Post