Complainant

Respondent

Anonymised Parties

Delivery Driver

Electrical Distribution Company

Representatives

David Lane SIPTU

Ian McGlashan Watershed

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00029118-001

17/06/2019

The Worker disputes the issuance of a final written warning and requests that it be rescinded. The Worker is employed as a delivery driver with the Employer. On the morning of April 3rd, 2019, he was taken off his truck by management on the basis that he had attended work smelling, and appearing to be under the influence, of alcohol. He was suspended on full pay pending an investigation. He received a final written warning for gross misconduct after a disciplinary and appeal process. The Worker admits to drinking the night before the incident and does not dispute the fact that there was a smell of alcohol from him on the day in question. The case put forward by his Union is that the investigation was flawed and that furthermore the behaviour in question did not merit a final written warning. The Employer submits that it acted reasonably at all times. The Employer asserts that there was a thorough and fair investigation and that the behaviour of the worker on the day warranted a final written warning.

The Worker states that the investigation was flawed for a number of reasons. Primarily, the Worker alleges that witness statements were inconsistent. He also submits that the investigator relied upon assumptions in his report, rather than finding actual facts. The opinion of the investigator, for example, in concluding that work colleagues of the Worker were lying in giving evidence was relied upon, which suggests that the outcome was predetermined.

On the incident that led to the suspension, the Worker submits that he had four “large” bottles of stout on the night before but that he went home at 10p.m. He rejects the finding that he was under the influence of alcohol on the following morning. He denies that he was swaying, as alleged by the Employer. He wore sunglasses on the day in question because he had sensitive eyes. He also states that the reason there was a smell of alcohol from his breath was because he forgot to brush his teeth on the morning in question. He further submits that if the Employer suspected him of driving under the influence, he should have been sent to a doctor for a breath test. The Worker asserts that the employer was in no position to make a determined decision on the effects of alcohol on his driving ability on the day. He argues that every person’s metabolism is different and that he considered himself quite capable of driving on the day.

The Employer submits that it acted reasonably at all stages of the initial suspension, investigation and disciplinary process. The primary investigation was carried out by a manager from a different depot. The disciplinary process was similarly carried out by a manager from a different geographical area again. The appeal was heard by the CEO of the company. The Worker was allowed union representation at the disciplinary and appeal stages. Any conflict in witness statements would only be relevant if the conduct that led the Employer to issue the warning, was disputed by the Worker. The Worker admitted to drinking the night before and to smelling of alcohol. These were the two undisputed primary facts that were considered when issuing the warning.

The Employer submits that the question of whether the Worker was capable of driving on the day is irrelevant to his dispute because the warning was based on him admitting to drinking the night before and of smelling of alcohol on the day in question. Such a standard fell well below the standard expected of a driver at the company

The Employer submits that a final written warning was justified. Gross misconduct is described, amongst other things, in the Employer’s disciplinary procedures as:

“Being under the influence of, or suffering the after effects of alcohol, prescribed drugs or other substances, including medications, that affect the ability to carry out your duties safely and competently whilst on Company business…”

The Employer also submits that it had raised the Worker’s use of alcohol in the past and presented documentary evidence to this effect.

The Employer submits that its decision to issue a final warning fell within the range of reasonable responses that a reasonable employer in the industry, would have adopted.

The Worker claims that the investigation was flawed and that the outcome was predetermined. An argument of a flawed investigation, in this instance, can be relied upon if the Worker can show that the finding of fact resulting thereof was so skewed against him in a blatant way, that he could credibly claim to be a victim of an unjust process. However, the two fundamental facts that the Employer relied upon for giving the warning -namely drinking the night before and coming to work smelling of alcohol -were facts admitted by the worker himself. Thus, I find that the argument regarding a flawed investigation creating an injustice, does not hold.

Furthermore, the Worker claims that the happening on the day should not be classed as gross misconduct and that the warning should be rescinded. The Worker also submits that the Employer could not determine conclusively that he was not fit to drive. I am minded also that the Worker submitted at the appeal hearing that it should have been a verbal warning instead of a final written warning. The definition in the Employer’s handbook, that being under the influence of alcohol at work constitutes gross misconduct. I find that the Employer made a reasonable inference, based on the balance of probabilities, that the worker was under the influence of alcohol on the day in question. A contributing factor here is that the Worker is a professional driver, who has a duty of care towards the public, his work colleagues and the Employer.

After considering all the circumstances of the case I conclude that the Employer acted reasonably when dealing with the Worker and I find that the issue of a final written warning was justified. I therefore recommend that the Worker would accept this sanction.

I find that the employer acted reasonably in issuing a final written warning and that Worker should accept this sanction.