Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Retailer

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-00023222-001

14/11/2018

The Complainant was dismissed for possession of an illegal substance at work and he felt the sanction of dismissal was disproportionate to the misconduct and an alternative action should have been taken and is seeking compensation and/or reinstatement.

The Complainant was employed as a Retail Assistant from December 14th 2008 to May 16th 2018.

He claims the sanction was disproportionate to the misconduct and an alternative sanction should have been considered.

The Complainants position is that the he was also dismissed for the use of illegal substances on his days off and the Respondents jurisdiction over misconduct stops at the gate of their premises.

The appeal process was inadequate as it was a paper exercise engaged in merely to rubberstamp the decision of the disciplinary hearing.

The Complainant made allegations of racist comments by work colleagues in 2106 which were not investigated. He claims in this case he was treated differently to the colleague who made the racist remarks.

He made a complaint of bullying prior to his dismissal which was not investigated and in the disciplinary process an allegation of behaviour change by the persons who made the racist comments went unchallenged and the Complainant did not have the opportunity to question the staff member.

The Complainant admits to the use of illegal substances in his time off and unknowingly having them in his possession at work on April 28th but denies ever using or being under the influence of illegal substances while at work.

The Complainant was not offered or informed that he could have representation, including legal representation, at the investigate stage.

The Complainant was never informed in writing about the allegations.

The Respondent did not give adequate consideration to a lesser sanction than dismissal.

The time between the disciplinary hearing and the decision to dismiss was very short.

The decision to dismiss the Complainant was predetermined prior to the disciplinary hearing.

The Complainant cited a number of legal cases to support his position.

The Complainant seeks reinstatement or compensation.

The Complainant received and signed for a Company Handbook which on pages 58/59 states examples of conduct that may warrant summary dismissal which includes the following

“Alcohol/drugs/illegal substances-being in possession of or consuming alcohol/drugs/illegal substances while at work or on the company’s premises or vicinity; Reporting for/being at work having consumed or being under the influence of alcohol/drugs/illegal substances; Unlawful buying, selling, distribution on or off the premises, within or outside working hours”.

On April 27th 2018 he Complainant was shown by his Manager CCTV footage of him in the Store on April 25th 2018. He was shown a clip of something falling out of the Complainants pocket and asked what it was. The Complainant said “he didn’t have a clue”. The Respondents Manager then advised the Complainant that he had the item in question and the Complainant then admitted it was “amphetamines” and explained it was the drug with the street name “speed”. He advised he had been given the drug by a friend and he was minding it for him. When advised by the Respondents Manager that he may need to seek professional advice and advice from the Gardai, the Complainant then said the drugs were his and that he sometimes used them on his days off.

The Complainant was again met on May 9th 2018 and he advised the Respondnet Manager that the drugs were in his jacket since October 2017 and he had forgotten they were in his jacket and that he admitted to taking illegal drugs 2 or 3 weeks ago.

The Respondent Manager wrote to the Complainant on May 9th and advised him he had a case to answer regarding the following allegations;

That he was in possession of an illegal substance on the premises while attending work on April 25th 2018

and

That he admitted that this illegal substance was for his own use and that he used it for recreational purposed on his day off in breach of the law.

The Complainant was then informed that a disciplinary hearing would take place on May 16th 2018 and that he had the right to be represented by a work colleague and that if he was found in breach of company policies he could be liable for disciplinary action up to and including dismissal.

At the Hearing on May 16th the Complainant refused to be represented by a colleague.

The Complainant admitted his conduct and offered the same excuses as before. The Complainant was dismissed for breach of company policies and was notified of this by letter on May 18th 2018.

The Complainant was advised of his right to appeal and he exercised this right and this was considered on June 1st 2018 and the decision to dismiss was upheld.

The Respondent had substantial grounds for justifying the Complainants dismissal and that it was reasonable in all the circumstances.

As there was no dispute of the facts on this case the Complainants right to confront witnesses does not arise.

The Respondent felt that the breach of policy in this case was such as to not warrant mitigation and dismissal was proportionate.

The Respondent cited the UK EAT case of Asda Stores Ltd v Coughlan (UKEAT/0453/10) to support its position where an employee with 21 years unblemished service was dismissed for the possession of drugs on its premises.

The bond of trust with the Complainant is broken, the decision to dismiss fell within the “band of reasonable responses” and the investigation and disciplinary process was fair.

The Complainant was lawfully and fairly dismissed and his complaint for unfair dismissal should be dismissed.

The Law.

“6.1. 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.

A number of judgements were considered by the Adjudicator in arriving at my decision.

Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

Also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her” submissions listened to and evaluated”.

Finally, in dealing with the issue of “Procedural v Substantive Justice” in Redmond’s Dismissal Law in Ireland it notes “Procedural defects will not make a dismissal automatically unfair……An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee”.

In this case the facts are not in dispute. The Respondent had a written company policy, accepted by the Complainant, that possession of illegal substances while at work on the Respondents premises was a conduct that could lead to summary dismissal. The Complainant admitted that the illegal substance that he accidently dropped on the public floor of the Respondents premises was his. Of particular note is that the illegal substance fell from his pocket onto a place used by the Respondents customers and could have been picked up by an adult or child and used by them, knowingly or unknowingly.

The Complainants position that he was not given the opportunity to have legal representation is not a ground for deciding, in this case, that the claim was unfair. The Complainant was given the opportunity to be represented by a work colleague, in line with the company written policy and he declined this. He never asked for, and therefore was never denied, any professional or legal representation during the investigation or disciplinary stages.

While the Company policy does not specify that an oral Hearing is required at the appeal stage, it is good practice. The Complainant submitted his grounds for appeal of the sanction to dismiss by letter (undated) and these grounds were considered by the Respondent and the decision to dismiss was confirmed on appeal. While the Respondent complied with its own procedures in this case, in accordance with Redmond’s comments above, the failure to follow good practice, but which is not a procedural omission in this case, again does not justify the overwhelming evidence of misconduct in this case.

While the Respondents handbook does cover the use of illegal substances off the company premises as conduct justifying summary dismissal and the allegations included this issue, the core reason for the dismissal of the Complainant was for the possession of an illegal substance on the Respondents premises. Also, the issue of not being able to cross examine witnesses is not core to this case as the facts were admitted and the “witnesses” were not witnesses to the incident itself but to prior issues involving the Complainant and some other staff. Nor was any evidence offered that the Complainant sought and was denied the opportunity to cross examine “witnesses”.

The Complainant committed an illegal act which breached company procedures, put the public at potential risk and the sanction for the act was set out in the Respondents written policies of grounds justifying summary dismissal. The bond of trust has been broken between the parties and I find that the Respondent acted within “the bands of reasonableness” in this case and the claim for unfair dismissal is not well founded based on the above.

Unfair Dismissal