Complainant

Respondent

Anonymised Parties

A General Operative

A Local Council

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00019542-001

01/06/2018

The Complainant is a general Operative with a Local Council whose employment was terminated by reason of his having been found to have alcohol in his system (following a blood test) and in circumstances where the Complainant was on a final written warning that any such positive finding would result in his employment being terminated.

The Complainant believes he was victimised by a Senior Inspector and that he had always gotten on well in the workplace. The Complainant’s representative raised issues in respect of the procedures adopted and questioned whether the termination arose out of the absenteeism rather than the presence of alcohol in the blood.

The Respondent believes it afforded the Complainant every opportunity to turn himself around and address the problem he was having with alcohol. The Respondent put the absentee issue as secondary to the Complainant’s apparent failure to reform himself.

I have carefully considered the matter herein. The parties opted to present their case by way of submission with supporting documentation. I also took the opportunity to hear from the Complainant directly.

The Respondent did not offer any witnesses, preferring to rely on the documentary trail (as set out in written submission) supporting their contention that the Dismissal herein was fair and reasonable in all the circumstances.

The Complainant herein worked with the Respondent body for upwards of twenty-one years. The Complainant was a General Operative who had worked in sanitation and with water supply.

Although there had been past issues relating to absenteeism these did not (per the Respondent) form any part of the process undertaken by the Respondent which led to the Complainant’s dismissal in May of 2018. On the 3rd of February 2017 and again on the 10th of May 2017 the Complainant was deemed to have taken alcohol in the workplace. This finding does not appear to have been contradicted by the Complainant who tenuously engaged with Staff support services available to all staff in this particular workplace – attending for at least one session with a staff Counsellor. However, the Complainant was not inclined to fully engage with a programme to assist with any dependence he might have had with alcohol. In these circumstances it does not seem unreasonable that the Employer took disciplinary action on the second occasion that the Complainant was found to have had alcohol consumed in the workplace – the 10th of May 2017.

On the 25th of May 2017 the Complainant was issued with a Final Written Warning letter which was of a twelve month duration. The letter specifically sets out that :-

“As part of the Final Written Warning and as part of your rehabilitation you will be required to undergo regular blood testing, on occasion these will be random tests.

Failure to participate with these tests will result in the termination of your employment.

If the results of one of these tests indicate that you have resumed consuming alcohol, your employment will be terminated.”

I have noted that these are very far reaching demands made of any Employee but must also note that the Complainant did not Appeal any aspect of this sanction and therefore must be deemed to have been on Notice of the extent of the sanction being applied to him. So that I must assume that he knew or ought to have known that any blood test taken by his employer within the next twelve month period and which was found to be positive for alcohol would become a very serious issue for him.

The Complainant continued in the workplace for a period of time after May though was not persuaded to engage with the Staff Support Services stating that he was now enjoying a period of abstention (which fact was backed up by the blood testing being performed). However, by September of 2017 he was again out on certified leave citing alcohol related problems and/or stress. The period of absence was preceded by a failure to attend an arranged blood test on the 10th of September 2017. By January 2018, after 3 to 4 months absence, the Complainant’s own Doctor certified him as fit to return to work. This finding prompted the Respondent to have the Complainant examined by their own Doctor who accepted the Complainant’s word that he was sober for the last month and certified him as fit to return to work on the 29th of January 2018 albeit with advice to seek further ongoing supports.

However, the blood test taken by the Respondent Doctor at this last assessment came back positive for the presence of alcohol in the system thereby contradicting the Complainant’s case that he had been sober for the last month. On balance I accept that there was alcohol in the system and that the suggestion that a cough mixture might have given rise to the levels diagnosed does not apparently withstand scrutiny.

Relying on the Final Written Warning Letter of 25th of May 2017 the Employer herein terminated the Employment arising out of a positive finding of alcohol.

On balance I have to find that the Employer herein acted reasonably in all the circumstances. The Complainant’s relationship with alcohol was such that he was oblivious to the obvious concerns that any Employer must have in safeguarding the safety and welfare of everyone in the workplace. For starters, the Complainant operated cutting machinery. But quite apart from that, it is not acceptable that a member of any team would turn into work with impared and compromised judgement. I sincerely hope that the Complainant’s allegation that the Employer herein would generally turn a blind eye to such behaviour (and that making an example of him amounted to victimisation) amounted to an exaggeration on his part.

I find that there was no procedural issues such that would allow for the impugning of the decision to terminate.

The decision was affirmed on Appeal which is accepted.

It is my decision that there has been no Unfair Dismissal herein and the Complainant’s claim under the Unfair Dismissals Acts, 1977 – 2015 must fail.