LCR21816

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.

The Employer appealed the Recommendation of the Adjudication Officer to the Labour Court on 29 June 2018. A Labour Court Hearing took place on 31st October 2018. The following is the Recommendation of the Court:-

DECISION:

Background to the Dispute

This matter came before the Court by way of an appeal against a Recommendation of an Adjudication Officer (ADJ-00007353, dated 12 June 2018) under section 13 of the Industrial Relations Act 1969 (‘the Act’). The appeal was referred to the Court on behalf of Limerick City and County Council (‘the Council’) on 29 June 2018. The Court heard the appeal in Limerick on 31 October 2018.

The dispute concerns a Worker who had been employed by the Council as a full-time Firefighter from February 2001 until he was demoted in November 2015 to the role of General Operative following a disciplinary process that resulted from the Worker’s appearance before the District Court on charges under the Misuse of Drugs Act. The Worker was not formally convicted of the charges in question but pleaded guilty and made a number of admissions to the District Court. Those admissions formed the backdrop to the subsequent disciplinary process.

The Worker transferred to the role of General Operative having unsuccessfully utilised his right of appeal as provided for in the Council’s disciplinary procedures. Although he delayed some fifteen months before referring a complaint to the Adjudication Service under the Act, the Adjudication Officer recommended in his favour, including recommending that he should “return to his full-time firefighter post with effect from one month after the date of [that] Recommendation … and any pay adjustment would be retroactive to the date of [that] Recommendation”.

The Union’s Submission

The Union’s submission essentially falls into two parts. Firstly, the Union takes issues with certain aspects of the disciplinary process that resulted in the Worker’s demotion and with the sanction imposed as a result of the disciplinary process. The Union submits that the sanction of demotion is contrary to the Worker’s contractual terms and in imposing it the Council acted ‘ultra vires’. Secondly, the Union asks the Court to find that the sanction imposed on the Worker is contrary to the principles of natural justice and inconsistent with SI No 146 of 2000 because the ongoing financial and other detriments suffered by the Complainant arising from his demotion will apply in perpetuity: his annual gross income has reduced by over 50% and this will have a significant knock-on effect on his superannuation entitlements.

In the Union’s submission, the disciplinary procedure imposed on the Worker was defective in the following respects:

• 
  •Neither the Worker’s contract of employment nor the disciplinary procedure referred to therein (The 1945 Fire Service Disciplinary Code) provides for transfer as a sanction;

  •The disciplinary procedures agreed with the Union and the Council in 2013 require the Council to offer support and assistance to staff members with substance abuse issues prior to commencing formal disciplinary action but such assistance was not offered to the Worker in this case

The Council’s Position

The Council submits that the conduct to which the Worker admitted constituted a far-reaching breach of trust of confidence on his part and, therefore, falls squarely within the category of gross misconduct and, as such, was potentially grounds for summary dismissal. However, having regard to the Worker’s personal and family circumstances the lesser sanction of demotion to General Operative grade was imposed and upheld on appeal. They further submit that the sanction was proportionate having regard to the gravity of the matters the Worker admitted to and the high degree of trust and confidence that attaches to the position of Firefighter and is within the parameters of disciplinary sanctions specified in SI No 146 of 2000.

The Council confirmed to the Court that it was open to the Worker to apply at any stage for any vacant position in the Council, including that of Firefighter, for which he believed himself qualified.

Discussion and Recommendation

Having given very careful consideration to the Parties’ submissions, the Court finds that the Council acted at all times in a reasonable and considered manner in progressing the disciplinary process that resulted from the charges brought against the Worker under the Misuse of Drugs Act. That process was conducted in accordance with the terms of the applicable disciplinary procedure. Before imposing the sanction of demotion, the decision maker had regard to all relevant mitigating factors and on that basis stopped short of summarily dismissing the Worker. Having regard to the foregoing, the Court finds that the first element of the Union’s submission on behalf of the Worker is not well-founded. In arriving at this finding, the Court has considered the two cases referred to by the Union and determined that both are distinguishable on the facts from the instant matter.

However, the Court, nevertheless, accepts the second element of the Union’s submission to the effect that the Worker has demonstrated his deep remorse for his mistake and has managed to turn his personal life around in the intervening period. He has successfully availed himself of a rehabilitation programme, he has remained drug and alcohol free, and he has become an advocate for drugs awareness initiatives in schools. The Court acknowledges that the sanction imposed by the Council has had significant financial consequences for the Worker and his family. All of this is also acknowledged on behalf of the Council. In all of the circumstances, the Court recommends that the Worker should be permitted to return to the Council’s fire service when the next vacancy for a full-time Firefighter becomes available. This recommendation, however, is conditional on the Worker remaining drug and alcohol free at all times and being available for random testing by the Respondent before and after he is returned to the fire service. The Court further recommends that the Worker be provided with the necessary training so as to update his skills in anticipation of his resuming duties within the fire service.

The Recommendation of the Adjudication Officer is varied accordingly.

The Court so recommends.

Signed on behalf of the Labour Court



Alan Haugh
JD______________________
6 November 2018Deputy Chairman



NOTE

Enquiries concerning this Decision should be addressed to John Deegan, Court Secretary.