ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00021687

Parties:

Complaint(s):

Date of Adjudication Hearing: 19/08/2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints

Ca-00028434-001

Unfair Dismissal Act 1977

Background

The Claimant commenced employment with the respondent as an operator on the 29th May 2017 and his employment ended on the 19th March 2019. The Claimants role involved responsibility for production of high-quality products for the pharmaceutical and food sectors. The role requires a high degree of safety awareness and requires demonstration of a history of safety training and participation in safety programmes and systems. Familiarity with the use of process automation technology and DSC operations is also required in the role.

Respondent’s position

On commencement of employment, the Claimant was provided with the contract of employment, which is dated 18th May 2017 along with the Respondent's relevant policies and procedures. The Claimant also undertook intensive training in respect of his role and records of his training were submitted.

The Respondents Disciplinary Policy and Procedure were provided, the following is included in the definition of gross misconduct,” incapability through alcohol or being in the possession of, or under the influence of illegal drugs”

The Claimant was suspended on full pay on the 5th March 2019 to facilitate an investigation into alleged misconduct and ultimately summarily dismissed on the 19th March 2019 as is permitted by the disciplinary Policy and Procedures. The Dismissal was on the basis of the Claimant having attended his place of work on the 2nd March 2019 knowingly under the influence of an illegal substance, and taking further illegal substance during his shift, thereby exposing himself and his colleagues to serious health and safety risks in the safety critical environment in which the Respondent operates

On the 3rd March 2019 at 3.15 am during his shift with the Respondent, the Claimant suffered a medical episode. There was great concern for the Claimant’s health as he collapsed during his shift. He received immediate first aid attention from employees of the Respondent on site who were qualified to provide such aid, in accordance with the Respondents First Aid Policy. The Claimant was removed to Cork University Hospital by ambulance. The Claimant had in response to the First Aider’s questioning admitted that he had taken an illegal substance before work. During the investigation the Claimant admitted that he had taken an illegal substance both before and during his shift.

The Respondent submitted evidence of the steps that had been taken prior to the Claimants dismissal. The Respondent states that they had not been made aware of the Claimants addiction prior to the incident.

Claimant’s position

The Claimant states that he made a mistake when he was having domestic problems and following the birth of his son. The Claimant states that he had tried to get help for his addiction prior to the incident. The Claimant believes that a sanction would have been more appropriate as opposed to dismissal. The Claimant states that he has successfully completed a treatment programme and attends weekly meetings. The Claimant is very remorseful.

Findings

Both parties made written and oral submissions.

I find that the Claimants honesty with regard to the incident commendable. I find that the Respondent followed their Procedures and Policies with regards to the Claimant, affording him the right of representation and appeal. I find that the Respondent is very clear on the position of gross misconduct and their stance on safety. I find that the Claimant was made fully aware of the Respondent’s Procedures and Policies upon commencement of employment. I find that Respondent was not made aware of the Claimants addiction until after the incident. I find that the Claimant was on a final written warning. I find that the Respondent acted in a fair and sympathetic manner towards the Claimant. I find that the respondent highlighted various supports which were being made available to the claimant.

I find that the Claimants action not only endangered his colleagues and himself but contributed to his dismissal.

I have reviewed all the evidence and taken all submissions into account that I make the following decision.

Recommendation

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 claim for Unfair dismissal is not well founded and falls

Ca-00028434-002

Minimum Notice & Terms of Employment Act, 1973

Background

The Claimant commenced employment with the respondent as an operator on the 29th May 2017 and his employment ended on the 19th March 2019.

Findings

The claimant was dismissed for gross misconduct.

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the complaint is not well founded and falls.

Dated:   8th November 2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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