Complainant

Respondent

Anonymised Parties

Mechanical Fitter

An Employer

Representatives

Unite the Union

Ms. Alison Fynes B.L., instructed by A & L Goodbody

Act

Complaint Reference Nos.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00008892-001

21/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00008894-001

21/12/2016

The complainant claims that he was unfairly dismissed by the respondent for gross misconduct for failing a random alcohol breathalyser test. He claims that he was not at work at the time but rather at an induction training session, his work was not scheduled to start until the following day and the respondent did not take that into consideration in its decision to dismiss him.

The respondent claims that for all intended purposes the complainant was at work and was being paid to attend the induction training session. The respondent claims that the complainant’s failed alcohol breathalyser test was a serious matter due to the nature of the industry that it operates in. It claims that this could have had serious health and safety implications and constitutes gross misconduct.

The respondent is a leading provider of turbine and compressor service solutions in power generation and in the oil and gas industries. The respondent claims that the complainant was employed with it as a mechanical fitter under a series of short term contacts from October 2004 to August 2016.

The respondent claims that the complainant was selected for and failed a breathalyser test at 4.30pm on Monday 22 August 2016 on a client’s site in the UK and was refused entry on to that site to complete the necessary induction prior to him working on the site the following day.

It claims that following an investigation into the events, a disciplinary process was carried out in line with its own disciplinary procedure, which, it claims, is in itself fully in line with the Code of Practice on Grievance and Disciplinary Procedure (SI No. 146 of 2000). It maintains that the complainant was fully aware and informed of all the allegations against him, that there was a full and fair adherence of its procedures and natural justice. The respondent’s note that the complainant was well aware of the company’s policy of random drugs and alcohol testing and that “being under the influence of drugs or alcohol whilst on duty falls under the definition of gross misconduct”. The respondent claims that the complainant was accompanied by his representative during the disciplinary procedure and the appeal procedure and he was at all times allowed to present his case. The respondent said that all factors were taken into consideration at the disciplinary stage and at the appeal stage before the decision to dismiss the complainant was made and subsequently upheld. The respondent claims that the decision to dismiss was a fair and proportionate response to the act of gross misconduct. The respondent maintains that the investigation, disciplinary and appeals process were fair and in line with the principles of natural justice.

The respondent claims that two members of its Resource Management and HR departments – Ms. A and Ms. B - spoke with the complainant via a telephone conference on 30 August 2016 to discuss the incident of 22 August with him. The respondent wrote to the complainant and set out the allegation of misconduct made against him, and invited him to a disciplinary hearing via conference call on 20 September 2016. The respondent notes that the complainant was informed in that letter of the case against him, he was informed that Ms. A and Ms. B would conduct the hearing, he was informed that he would be afforded the opportunity to respond to the allegations against him, he was informed of the implications should he be found guilty and he was invited to have in attendance with him a fellow employee or a trade union representative to the disciplinary hearing. The disciplinary hearing was held on the morning of 20 September, it was adjourned at 12 noon and it reconvinced later that evening at 4pm where the decision to dismiss him was delivered. This was followed up by a letter, dated 21 September 2016, setting out the decision. The respondent maintains while all the mitigating factors were considered the decision to dismiss the complainant was merited on the basis of the seriousness of the misconduct due to the possible safety consequences for both the complainant and his fellow workers, coupled with the risk to the company’s reputation as this incident occurred on a client’s site.

The respondent said that the complainant was advised of his right to appeal, which the complainant chose to avail of. The appeal was held on 24 October 2016 via teleconference, where the complainant was accompanied by his trade union and the appeal was heard by Ms. C and Mr. D, who had not been involved in the process heretofore. The respondent claims that after a thorough review of all the information presented during the appeal hearing the respondent’s decision to dismiss was upheld and the complainant was advised by letter dated 2 November 2016 from Mr. D.

The respondent claims that all employees are made well aware of the need for strict adherence to health and safety procedures in the industry, and the complainant had signed a consent form to provide breath and oral fluid for testing as per its customer’s Alcoholic and Drugs Policy. The respondent also referenced its own Alcohol and Drug Free Workplace Policy where it points out that a “confirmed positive drug and/or alcohol test shall result in disciplinary action, up to and including discharge from employment with the company”. It claims that the complainant was randomly selected for a breathalyser test while entering the customers site for an induction session prior to the first shift which commenced the following day. The respondent said that the complainant failed the test and, as per the terms of the Customer’s Alcohol and Drugs Policy, he was immediately removed from the site.

The respondent claims that the complainant’s employment was terminated following a thorough and comprehensive process in relation to an incident of gross misconduct. The respondent claims that it operates in a safety critical environment where employees are expected to carry out their work with a high level of skill and specific attention to detail as there are serious health and safety concerns. Also, as the respondent is based on its client’s site, the need to strictly observe its own and its client’s health and safety policies and procedures are well-known to all its staff for their own and others safety and for the reputation of the respondent with its client. The site induction sessions are vital in that respect. The respondent claims that failure to observe these strict rules poses a serious risk and is dealt with under its disciplinary procedure.

The complainant worked for the respondent as a mechanical fitter from 26 October 2004 until his dismissal on 23 August 2016 on a series of short term contracts. He claims that he was scheduled to commence his contract of employment on a project at a power station in the UK. He said he left his home in Ireland and travelled to the UK on Sunday 21 August 2016. He was scheduled to attend a site induction training session on Monday and start working on site at 6pm on Tuesday the 23 August 2016.

The complainant claims that on the Sunday on his arrival in the UK he went out and had a few drinks, with the comfort of knowing that he was not scheduled to work until Tuesday at 6pm. He claims that he went to bed early enough and had very little to eat on the day in question. The following day at around 4:30pm before the start of the induction session on the work site he was randomly selected for a breathalyser test, he was advised that his breath alcohol measurement was over the permitted level for him to access the site as per the clients Alcohol and Drug Policy. The complainant was refused entry on to the site and returned to his hotel and the respondent made arrangements for his flight back home to Ireland the following day.

On 30 August 2016, the complainant received a telephone call from Ms. A and Ms. B, from the respondent’s Resource Management and HR departments, to discuss the incident. The complainant was subsequently advised of a disciplinary hearing by conference call set for 20 September 2016. The hearing was adjourned at 12 noon on the 20 September and reconvened at 4pm when the complainant was advised that his contract of employment was being terminated. The decision was subsequently conveyed by correspondence the following day 21 September 2016.  

On 24 September 2016, the complainant appealed the decision of the termination of his employment and an appeal hearing was held on 24 October 2016 again by teleconference call. The complainant argued at the disciplinary hearing and at appeal stage that he was never advised that a random alcohol and drugs test could take place 24 hours before be started work. He said that he was well aware of the possibility of a random test however, in all his years he had never seen a test being carried out at an induction. He claims that as an alternative to dismissal he could have been given the opportunity to ensure he was well within the breath alcohol requirement before he reported for work on the site on Tuesday 23 August 2016. The complainant said that notwithstanding his submission to the respondent, the decision to terminate his contract of employment was upheld.  

The complainant stated that he was paid for travel time from Sunday – the day of travel – and a subsistence rate for the induction day on the Monday and this would be equivalent to 8 hours as opposed to his usual shift of 10 hours per day when he was working on site as a mechanical fitter.

The complainant acknowledged that the disciplinary and appeal hearing were conducted in a courteous manner and he was given a right to representation. However, the complainant said that they were not conducted in best practice or in line with the respondents own procedures. He claims that the investigation process was only based on a telephone call to him on 30 August 2016 by Ms A and Ms. B and that this part of the investigation was inappropriate and did not give the complainant an opportunity to know the extent of the charges and have the opportunity to be represented. It was also suggested that Ms. A and Ms. B should not have been involved in the disciplinary hearing on 20 September 2016 as there were involved in the investigation meeting on the 30 August 2016. The complainant’s representative refereed to Leigh v. Speed King Couriers Ltd t/a Fastway Couriers (Midlands) [UD28/2014] in this regard regarding the overlap between the investigation and the disciplinary process. The complainant referred to the decision in Crowe v. An Post [UD1153/2014] in relation to the need to give sufficient consideration to alternative sanctions other that termination of employment.

The complainant claims that he had an unblemished record with the company for over 14 years and the approach by the company in relation to the termination his contract of employment was disproportionate, he felt that other sanctions short of dismissal were not fully considered and in particular the company could have re-tested him in advance of him starting his work on site on the following day.  

In relation to the claim under Section 4 of the Minimum Notice and Terms of Employment Act 1973-2005 (Minimum Notice Act) the complainant claims that he has in excess of ten years’ service with the company and if his unfair dismissal claim is successful he would also be entitled to notice payment of not less than 6 weeks at an average earning of €616 per week.

CA-00008892-001 – Complaint under the Unfair Dismissals Act, 1977

The Relevant Law

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(1)   Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

…

(4) 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 one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

…

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, 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 referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

The material facts in this case, including the fact of dismissal, were not in dispute between the parties. The respondent contends that the complainant was dismissed on the grounds of gross misconduct after he was randomly selected for a breathalyser test and where it was found that his breath alcohol measurement was over the permitted level for him to access its client’s site as per the clients Alcohol and Drug Policy. The complainant disputes that he was in work on the day in question. He also contends that the penalty of dismissal was totally disproportionate when all the circumstances of the case are taken into consideration and that a different sanction would have sufficed given the nature of his exemplary record over 14 years work with the respondent. The complainant said he was of the view that he was only due to have induction training on the day in question and did not have to actually work on site until the following day where he should have been given the chance to have been retested before he was allowed on site. The complainant also contends that the manner in which the dismissal was effected was procedurally flawed and lacking in fairness. Therefore, it is clear to me that the two issues which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint are as follows (1) whether the respondent acted reasonably in dismissing the complainant and (2) whether the dismissal adhered to the principles of fair procedures.

The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland –v- O’Reilly [2015] IEHC 241 where it was held 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.

I respectfully agree with the views expressed by Judge Linnane in Allied in Allied Irish Banks v. Purcell [2012] 23 ELR 189, where she commented (at p. 4):

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

The incident which gave rise to the complainant’s dismissal occurred after it came to the attention of management that the complainant had failed a breathalyser test at a client’s site in the UK. Following an investigation into this matter, the respondent established that the complainant had arrived on site to undertake his induction training ahead of him starting work the following day. The complainant had been out for some drinks on the Sunday evening and when he was selected for a random breathalyser test on the Monday evening around 4:30pm before he was allowed to enter onto the site for the induction training he was deemed to be over the permitted levels of alcohol allowed. He was refused entry onto the site and was subsequently sent home. None of that is in dispute by the parties.

The parties are in disagreement as to the complainant’s work status on the Monday. The complainant claims that he was at an induction session and not at work on the site. Accordingly, he was not going to be out on site, operating site equipment and was not a danger to himself or others. He claims that the breathalyser test could have been retaken the following day before he started work and he would have been given the chance for the alcohol to pass through his system. He said that he never drinks ahead of working on site and would not have done so on the Sunday if he knew that there was a chance that he could have been subjected to a breathalyser test before the induction session. The respondent claims that the complainant was in work on the Monday, as he was paid to be in attendance and the induction session was a necessary part of his employment, in particular, for health and safety purposes. The respondent highlighted the particular relevance for health and safety in this industry where failure to be fully compliant and aware of the health and safety matters could have catastrophic consequences for employees. The respondent also raised the matter that the complainant, while on the client’s site, was representing it and his failure to pass the breathalyser test could have had reputational damage for the respondent.

Having regard to the evidence adduced, I am satisfied that compliance with health and safety measures is of paramount importance in the industry within which the respondent operates. Equally, I am satisfied that the induction session is given to deliver a detailed serious message to all site users so to prevent against any possible accidents. Likewise, I would suspect that an employer’s failure to provide such an induction session in such an environment would have negative consequences should an accident occur. I am satisfied that the respondent placed high importance on the induction session, which has been demonstrated by it paying for the complainant to attend. Accordingly, I accept the respondent’s position that for all intended purposes the complainant was in work on the Monday, as he was being paid to attend, the induction session was important in particular for health and safety matters and that he was representing the respondent before an important client on the client’s site. I am satisfied that the complainant was fully aware of the importance and significance of the induction session for health and safety purposes and that he was reporting for duty on the clients site on that Monday, and that while he was reporting for work therefore he should have considered that there was a possibility that he could have been selected for a random alcohol or drugs test. I accept the complainant’s bone fides where he said that he would never report to work on a site to work as a mechanical fitter having consumed alcohol.   However, in this incident, I find that the complainant was in work and his actions clearly constituted a breach of the respondent’s procedures and that this breach amounted to gross misconduct under the respondent’s established Disciplinary Procedures.

In all the circumstances of this case, I find that the actions of the respondent were within the range of reasonable responses open to it and that substantial grounds did exist to justify the complainant’s dismissal.

The second issue which I must consider relates to the procedural fairness or otherwise of the complainant’s dismissal. The complainant contends that the procedures which were invoked by the respondent in terms of the manner in which the investigation and disciplinary procedures were conducted were flawed. The complainant contends that there was a lack of transparency and impartiality throughout the process with the result that he was denied his rights under natural and constitutional justice.

The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 [S.I. No. 146/2000] sets out the general principles that should apply in the operation of disciplinary procedures and the promotion of best practice in giving effect to these procedures. The Code states that the procedures applied must comply with the general principle of natural justice and fair procedures, which include that:

1.      the details of the allegations or complaints be put to the employee concerned;

2.      the employee concerned be given the opportunity to respond fully to any such allegations or complaints;

3.      the employee concerned is given the opportunity to avail of representation; and

4.      the employee concerned has the right to a fair and impartial determination of the issues being investigated, taking into account the allegations or complaints against him or her, the response of the employee concerned to them, any representations made by or on behalf of the employee concerned and any other relevant or appropriate evidence, factors or circumstances.

In considering this matter, I am satisfied that the respondent had its own established Grievance and Disciplinary Procedure in place, which it suggests conforms to the general principles and procedures as set out in the Code of Practice. I have examined that document and I have carefully considered the manner in which the disciplinary procedures were applied in the present case. I am satisfied that the complainant was given advance notice of the misconduct Disciplinary meetings, with the exception of the first contact made following the incident which the respondent claims was a fact-finding exercise. This telephone contact was followed up by a letter which advised the complainant of the nature of the alleged misconduct, the seriousness of the matters alleged, his opportunity to respond to these allegations at the hearing and he was afforded the opportunity to attend by teleconference with someone to accompany him. Having examined the respondent’s Disciplinary policy and procedure manual, I am satisfied that the process adopted was followed step by step as provided for in its own policy. I note that following the investigation and disciplinary stages, the complainant was also afforded an appeal process internally, which was heard by two other senior members of the respondent, who had not been involved in the initial investigation or the decision to dismiss.

I note the complainant’s point that he was not advised prior to the telephone conference call of the allegations in writing at the outset of the investigation. However, it is very clear that he was sent home from a client’s site where an incident had occurred and therefore he was not in work. I am satisfied that he would have expected that the respondent would indeed get in touch with him about the incident. I cannot accept that he was caught unaware or unknowing of a possible enquiry from the respondent into the events that led him to be sent home, or indeed he was prejudiced in any away when he received a call from Ms. A and Ms. B to gather facts. I am satisfied with Ms. A and Ms. B’s evidence that this call was a fact gathering phone call and they had not made a decision on the complainant at that point in time. I note that the procedure adopted and followed by the respondent, fully complies with the respondent’s Formal Disciplinary Action at page 2 of its own procedures, which was submitted to me in evidence.

I am satisfied that the details of the alleged gross misconduct were clearly known to the complainant as they were clearly set out in the respondent’s letter to him dated 15 September 2016. This letter also sets out the possible sanctions should he be found guilty and that the respondent was treating the matter with the utmost seriousness. The complainant admitted at the outset that he had failed a breathalyser test and had been sent home and given the seriousness of such an action it is clear that there would be a potential enquiry from the respondent. Furthermore, I cannot accept the complainant’s contention that the respondent failed to apply best practice and failed to follow its own procedure. I am satisfied that the respondent followed the steps of its own disciplinary procedure and there can be no criticism that Ms. A and Ms. B carried out a thorough and comprehensive investigation into the matter and upon the conclusion of the process made a decision that his conduct amounted to gross misconduct and merited dismissal. It is clear that the decision to dismiss was ultimately taken after having carefully reviewed the evidence presented by the complainant. The complainant was also afforded an appeal process which was heard by two senior members of the respondent, who had not been involved in the process to date.

On balance, therefore, I find that the manner in which the respondent conducted the investigation and disciplinary hearing conformed with its own disciplinary procedure and the appeal did in fact comply with fair procedures and natural justice. In the circumstances, I find that the complainant was not unfairly dismissed by the respondent within the meaning of Section 6 of the Acts. Accordingly, I find that the complainant’s claim under the Unfair Dismissals Act is not well founded.

CA-00008894-001 – Claim under the Minimum Notice and Terms of Employment Act, 1973

On the grounds of my previous finding that the complainant's actions constituted gross misconduct, for which summary dismissal was an appropriate and proportionate sanction, I am satisfied that the complainant is not entitled to statutory notice. Accordingly, the complaint under the Minimum Notice and Terms of Employment Act, 1973 is not upheld.

CA-00008892-001 – Complaint under the Unfair Dismissals Act, 1977

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.

I find that the complainant was not unfairly dismissed by the respondent within the meaning of Section 6 of the Acts. Accordingly, I find that the complainant’s claim is not well founded.

CA-00008894-001 – Complaint under the Minimum Notice and Terms of Employment Act, 1973

Section 41 of the Workplace Relations Act, 2015 and Section 11 of the Minimum Notice and Terms of Employment Act, 1973 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under that Act.

As the dismissal was deemed not to be an unfair dismissal and the complainant was dismissed for gross misconduct, his claim for statutory notice under the Minimum Notice and Terms of Employment Act, 1973 is not upheld.

Unfair Dismissal Act –   Minimum Notice – summary dismissal - gross misconduct – fair procedures - not upheld.