Complainant

Respondent

Anonymised Parties

A General Operative

A Manufacturing Company

Representatives

SIPTU

IBEC

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-00025146-001

21/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00025146-002

21/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00025146-003

21/01/2019

The complainant commenced employment on 25th November 2013 and was advised of his dismissal on 18th October 2018. The complainant’s complaints are that he was unfairly dismissed, that he did not receive his minimum notice and that deductions were made from his pay.

During this hearing, submissions were substantial with copious volume of documentation and oral evidence heard over 2 days and, whilst I will not be referring to every event or reference every case law presented, I have taken into account all the submissions including oral and written made to me in the course of my investigation as well as the evidence presented at the hearing.

The following is a summary of the chronological events:

The complainant received a final written warning on 18 April 2018 which included for “attending for work while under the influence of alcohol”.

On 9 July 2018 the complainant passed a random sobriety test conducted by the company doctor.

On 17 July 2018 a colleague of the complainant, Mr A, raised concerns with Mr B, a production supervisor, as to whether the complainant was fit for work and reported that the complainant had been dropping objects.

Mr B and Ms C, HR Manager, met with the complainant that same evening and advised him there were concerns the complainant was under the influence of an intoxicant which the complainant denied.

The meeting ended and the complainant declined the offer of a taxi and drove home without finishing his shift.

The following day, on 18th July 2018 the complainant was placed on paid suspension pending an investigation into the allegation of “reporting to work yesterday evening under the influence of an intoxicant”.

Mr D a quality engineer and Mr E engineering manager were appointed as investigators and interviews took place.

On 13 September 2018 the investigators determined that based upon the balance of probabilities, the complainant was under the influence of an intoxicant on 17th July and also recommended the introduction of a drug and alcohol testing system.

On 19 September 2018 a disciplinary hearing took place with Mr F, operations manager, and Mr G, a Buyer and a written decision was issued on 10 October which decided that the complainant should be dismissed.   It was further mentioned that Mr F and Mr G would seek authorisation from the Managing Director Ms H as per policy. Ms H confirmed the decision to authorise the decision on 18 October 2018.

An appeal took place on 19 November 2018 by Mr I (VP Human Resources) and on 6 December 2018 written confirmation confirmed the dismissal.

It was submitted that the complainant on 15th December 2017 reported to work and when asked by Mr B if he had been drinking, he replied that he had been drinking all day. The complainant was absent the following day until 16th April 2018 and upon his return an investigation took place and the complainant denied that he had been drinking all day but he did accept that he had drink taken when he came into work on 15th December 2017. The company doctor recommended that random alcohol screening should take place for a period for three months for the complainant and following a disciplinary meeting the complainant was issued with a final written warning. On 9th July 2018 a random alcohol test took place which the complainant passed.

On 15th July 2018 Mr B was alerted by Mr A that the complainant had been dropping things and when Mr B talked to the complainant he observed that the complainant appeared to be slurring his words and there was a smell of alcohol from him. Following the meeting with Mr B and also Ms C; where she observed that he was slurring his words and there had been a smell of alcohol; the complainant refused a taxi and drove home. It was submitted that Ms C had been very honest in her assertion that she smelled alcohol but when they came to the office she did not smell the alcohol as there as a strong smell of cleaning products in her office as it had just been cleaned.

The investigators determined that based upon the balance of probabilities the complainant was deemed to be under the influence of alcohol and the matter was referred to the disciplinary team of Mr F and Mr G who determined that dismissal was an appropriate sanction which was authorised by the managing director Ms H who in line with the company’s policy.

It was submitted that the complainant had at every stage, every opportunity to put forward any witnesses but he did not do so. It was further submitted that the complainant’s version of events that his behaviour on the evening may have been because of the heat, or tiredness were far less plausible than that his behaviour was owing to him being under the influence of alcohol. The assessment of his ability to work was not based solely on Mr A’s evidence but also upon the evidence of Mr B and Ms C. The investigation panel made a recommendation for a drug and alcohol testing system to be introduced but this was in no way a suggestion of doubt over the balance of probabilities.

Case law included Connolly v The Belgard, Miller v Minister of Pensions [1947] 2AER372.

The complainant has consistently denied being intoxicated on the evening of 17 July 2018 and submitted that respondent was unreasonable in their decision to dismiss him. It was furthermore submitted by the complainant that the particularly hot weather on the day might have been a contributing factor to any observed slurring of speech and the nature of his work involving oil would lead to the dropping of objects.

The investigation conducted by Mr D and Mr E stated that the “allegation was based on three elements namely ability to work, slurring his speech and smelling of alcohol” and that the respondent only interviewed three witnesses. It was submitted that one of these witnesses, Mr A, who had referred to the complainant making mistakes; had also noted that the complainant was not fully comfortable on the machine and makes repeated mistakes not limited to the day in question. None of these matters cited by Mr A related in any way to intoxication.

Evidence from Mr B on the 17th July was that he thought he could smell alcohol but that 3 weeks later he became definite in his evidence that the complainant smelt of alcohol. Ms C advised that she thought she could smell alcohol on the way to the meeting with the complainant but said definitely that she could not smell alcohol when in her office. Ms C and Mr B both said that the complainant was slurring his speech but Mr A gave contrary evidence. The investigators concluded that based on the balance of probabilities the complainant was under the influence of an intoxicant but the complainant submitted that it was not reasonable to come to this decision considering the inconsistency in evidence of Mr A, Mr B and Ms C.

Furthermore, the investigators saw it necessary to look for the introduction of a drug and alcohol testing system and that todate that has not been introduced by the respondent. No efforts were made to have the complainant undergo an alcohol test and he had completed such a test shortly before the incident on the 17th July 2018 and indeed this had been referenced at his appeal by Mr I that the respondent had been unable to test the complainant because of a lack of a policy.

The failure to properly investigate the allegation took the decision to dismiss outside the range of reasonable responses and thus rendered the dismissal unfair. It was also submitted that the investigators failed to apply properly the balance of probabilities standard in the context of the seriousness of the allegation. The failure of the disciplinary decision-makers to act reasonably, primarily in accepting the conclusion of the investigation panel and failing to consider the validity of the investigation report was also unreasonable.

Case law cited included Georgopoulus v Beaumont Hospital [1998] 3 IR 132, Pottle Pig Farm & Panasov UDD1735 July 2017, Bank of Ireland v Reilly [2015 IEHC 241.

Section 6 of the Unfair Dismissals Acts, 1977 to 2015 provides:

“(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.

…

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) not relevant

(b) the conduct of the employee

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

The Respondent submits that the complainant was dismissed for gross misconduct as he reported for work under the influence of an intoxicant and had previously received a final written warning for a similar issue. It was noted that the respondent considered that there were mitigating factors in the previous incident. The complainant denies that he was under the influence and that the decision makers acted unreasonable.

The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland –v- O’Reilly[1] where it was held that: “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned …. “.

In the case of Samuel J. Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following legal principles to be observed by an employer to support a decision to terminate employment for misconduct:

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct.

1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”.

It is relevant also that Frank Shortt v Royal Liver Assurance Limited (1998, 3571), sets out that the disciplinary process may not be perfect but it should come within the perimeter of what could reasonably be considered a fair response by the employer in the circumstances. This was also detailed in Mooney v An Post ([1994] E.L.R. 103), where what exactly is required of an employer to satisfy the requirements of natural justice may differ from case to case.  

Therefore, the issues which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint are whether the Respondent acted reasonably in dismissing the Complainant and whether the dismissal adhered to the principles of fair procedures.

In considering these issues, I note that the complainant had previously received a final written warning for an alcohol related incident and that there was some differences between witnesses as to what they observed as the notable feature of the complainant’s behaviour on the 17th July. Mr A noted that the complainant was dropping objects, Mr B noticed a smell of alcohol and the slurring of words and that while Ms C initially noticed a smell she was also struck by slurred speech. While it was submitted that there should have been additional witnesses brought forward, I note that the complainant did not make any suggestions of same during the investigation. Furthermore, I find that the behaviours that Mr A, Mr B and Ms C observed could beinter alia intoxicant-related behaviours.

The complainant saw himself fit to drive home the evening of the incident albeit I note that at no stage did the complainant insist that he was fit for work or suggest that he take a test to confirm or deny that he had taken any substance. One significant concern that does arise is to why an employer would allow an employee drive home that they suspected was under the influence. While the respondent lacked insight into the potential consequences of allowing same, I do not find that their decision to allow the complainant to drive home in any way diminished the respondent’s belief that the complainant was under the influence.  Another concern is that at the time of the hearing the respondent has made no effort to introduce a “mutually agreed drug and alcohol testing system” despite these two incidents and a recommendation by the investigation team.

The incident of the 17th July 2018 was investigated following which a disciplinary team determined that dismissal was the appropriate sanction which was reaffirmed by the Managing Director, following which an appeal hearing took place. While there were at times some lack of clarity by the various personnel involved regarding what their roles were, I do find that on the whole the response by the employer to terminate the employee’s contract was reasonable andproportionate in the circumstances.

Having regard to the totality of the evidence adduced, I am satisfied that the dismissal was fair and reasonable.

The complainant submitted that the terms of employment were silent on the implications and effectiveness of the dismissal once issued and that when an appeal of his dismissal was lodged the complainant had an entitlement to be paid from 18 October 2018 until 6 December; the date when a decision on appeal was issued.

The complainant had not given authorisation for a deduction in his pay.

Case law referenced included Ann Marie Ryan v UPC Communications Ireland Ltd UD12/2013.

The respondent submitted that the effective date of dismissal is the date of the dismissal and not the date of any appeal.

Case law referenced included Michal Gabor v NYD Limited UD2436/2011, Ikea Ireland Ltd UD2362/2011, Tom O’Neil v Bank of Ireland UD425/91

Section 5 of the Act provides that “an employer should not make a deduction from the wages of an employee” unless in certain circumstances.

The complainant referenced Ryan v UPC Communication Ltd UD13/2013 where it was held that in that aforementioned case “the terms of employment were silent on the implications and effectiveness of the dismissal once issued” and that there was “lack of clarity and in consequence created ambiguity”.

In considering this I have reviewed the respondent’s Article 11.0Disciplinary Procedures where it sets out at Stage 5:

“Failure to show the required improvements which will be clearly specified in writing under Stage Four will result in the employee being dismissed. An employee may only be dismissed with the authority of the Managing Director after he has fully considered all the circumstances and the matter has been discussed with the Union representative.”

I do not find any ambiguity that date of dismissal is the date of authorisation from the Managing Director and I find that the complaint is unfounded.

The complainant submits that the dismissal was unfair and that he was given no notice of his termination.

The respondent submits that the dismissal of the complainant was fair and that the complainant has no entitlement to minimum notice.

I have found in CA-00025146-001 that the dismissal was fair.

Section 8 of the Act sets out that “Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

As the dismissal was due to gross misconduct there is no entitlement to minimum notice and the Act was not contravened.

CA-00025146-001

I find that the complainant was fairly dismissed and the complaint is unfounded.

CA-00025146-002

I find that the complaint is unfounded.

CA-00025146-003

I find that the Act was not contravened and the complaint is unfounded.

Unfair dismissal, minimum notice, payment of wages