ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025396
Parties:
| Complainant | Respondent |
Anonymised Parties | Catering Assistant | Catering providers |
Representatives | Des Courtney SIPTU | Muireann McEnery IBEC |
Complaint(s):
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-00032231-001 | 15/11/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00032231-002 | 15/11/2019 |
Date of Adjudication Hearing: 07/02/2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a 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 other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed from her place of employment wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 15th of November 2019) issued within six months of her dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
In addition to the Complaint brought under the Unfair Dismissals legislation above, the Complainant has made further allegations that the Employer herein has contravened provisions of an Act which have been specified in Schedule 5 of the Workplace Relations Act of 2015. As the Adjudicator assigned to deal with these matters, my obligation is to hear these further complaints in accordance with the mechanism set out in part 4 (and in particular, section 41) of the 2015 Act. Having heard the complaints in the manner so prescribed I am entitled to consider redress in accordance with the Redress Provisions outlined in Schedule 6 of the Workplace Relations Act of 2015. In this instance I have been asked to make decision in connection with the Minimum Notice & Terms of Employment Act, 1973
Background:
The Complainant was summarily dismissed having been found to have a positive reading for alcohol pursuant to a breath test conducted by a third-party toxicology company at the request of the Employer. |
Summary of Complainant’s Case:
The Complainant was represented by SIPTU and I was provided with a comprehensive submission on the law and the facts. I have considered these and I have listened carefully to what the Complainant had to say. |
Summary of Respondent’s Case:
The Respondent was represented and I was provided with a detailed submission as well as hearing from two Respondent witnesses. |
Findings and Conclusions:
I have very carefully considered the evidence adduced in the course of this hearing. The Complainant herein was summarily dismissed on the 25th of June 2019 for having an unacceptable level of alcohol in her system at a time that she was in her employment. The Complainant had given 15 years’ service to her employer in this employment with the Respondent company. It is noted that I have heard no evidence to suggest that the Complainant was anything other than an excellent and trustworthy employee for the duration of this employment. In the circumstances, I would suggest that the onus on the Respondent is to demonstrate that the Complainant’s actions or omissions justify the termination of an employee who has demonstrated a long-standing commitment and loyalty to her position. The first Respondent witness Mr. H gave evidence that he formed the view that the Complainant was under the influence of alcohol (or some other substance) when he observed her interactions with both himself and others on the early morning Dublin to Belfast train whereon the Complainant was engaged as a catering assistant in the dining car. The evidence is that the Complainant had already travelled up to Belfast from Dublin on the train and was therefore mid-way through her shift as she was due to make the return journey to Dublin once the passengers had been cleared and re-loaded and the dining car re-stocked. Mr. H gave evidence that he observed the Complainant acting erratically – banging her trolley – and being less coherent than usual. Mr. H did not ask the Complainant’s colleagues how the Dublin to Belfast journey had been and instead exited the train to contact his own line Manager Mr. M. As it happens Mr. H did not get an opportunity to re-board the train before it pulled out of the station on its return journey to Dublin. In his evidence Mr. H said he “second guessed” himself as he could not be sure what the problem was and therefore wanted to have the decision making moved up to his own supervisor. Mr. H said he did not want to cause reputational damage as he was not sure if there was problem, though he was sure there was. It is worth noting that no attempt was made to contact any member of the catering staff during the journey back to Dublin and nor is there any suggestion that the dining car operated other than smoothly, as no other member of staff was consulted. In fact, the Complainant makes the solid point that not one person (passenger or colleague- including Mr. H) raised any concern about her ability to perform her duties before she left Dublin, for the duration of her journey to Belfast and on the return leg of the trip. I therefore accept that the Complainant was blind sided when she was met by her Supervisor’s Supervisor Mr. M on the train once it had arrived back into Dublin. Mr. M appears to have escorted the Complainant to a small kitchenette area where she was advised that an alcohol test was going to be performed by a third party who was unknown to her. There is no evidence that Mr. M talked to any of the Complainant’s colleagues who had worked along-side her at that time. However, Mr. M relies on the Company policy which allows for with-cause testing although it is not clear to me that the Testing procedures as drafted were adopted as a member of the catering team did not give an opinion alongside the Supervisor. I would be very concerned at the process undertaken in this kitchenette at this time. I am concerned that the Complainant found herself to have been isolated and without a voice to defend her or, at the very least, protect her interests. It seems to me that the Respondent placed a considerable amount of faith in the procedures adopted by the Toxicology company it had engaged to conduct such a breathalyser tests and that this was to the detriment of the Complainant. I am genuinely surprised that neither Management nor the third party involved, recognised that the Complainant’s personal integrity was being impugned. I do not understand why the Complainant was not provided with a witness and/or representation when she was brought to this room to have a third party conduct a test of this nature. In deference to the Complainant’s consistent claim that she cannot explain the results of the test – which showed a high level of alcohol in her system – I would have to concede that there is no evidence to confirm that the breathalyser test was functioning correctly. Neither the person performing the test, not Mr. M volunteered to perform the test in advance of the Complainant to show that the machine could show a negative result. I accept that this might be unlikely, but if management is going to isolate an employee and direct that such a test be taken then management has to be able to show the process is beyond reproach and must justify its actions at a subsequent impartial review. The Complainant was suspended in the aftermath of the breathalyser testing having been performed although it is noted, not before she sat down and reconciled the days takings as part of her employment and which function, she performed without incident. I know that subsequently the Complainant accepted that she had had alcohol the night before her shift, and that that is the only explanation that she can provide. The Respondent is not making the case that the Complainant was drinking in the course of her employment. I note that the Respondent took statements from witnesses after the Complainant had already been suspended though I have no idea how said witnesses were approached. To my mind these are witness statements gathered after the fact. However, for the avoidance of doubt, I do not hold that cross examination of witnesses in an Investigation is mandatory, and I reject this submission made by the complainant’s representative. The Respondent’s representation went to some length to demonstrate that a comprehensive and fair Investigation and Disciplinary process was entered into. I accept that this is probably correct, but it does not cure the fundamental difficulty that these procedures were entered into based on a breath test and a testing process which was capable of being questioned. In the circumstances, I find that the Complainant’s dismissal was technically Unfair. I award compensation based on this finding. I note the Complainant is back at work albeit on a seasonal basis and at a lesser remuneration. In addition, I would have to add that even if there wasn’t such doubt about the manner in which the evidence of alcohol on the breath was gathered, I would be sympathetic to the Complainant’s argument that the Dismissal was disproportionate. The Complainant had been an excellent and hard-working Employee who had given 15 years of service. This was the Complainant’s first misdemeanour and there is no evidence to suggest that this one-off incident was likely to be repeated and whether a lesser sanction might not have achieved a happier outcome all round. It follows from the foregoing that the Complainant should have been given a Notice period before the termination of her employment. The Complainant is entitled to eight weeks of Notice. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00032231-001 The Complainant was Unfairly Dismissed and I award compensation in the amount of €7,500.00. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00032231-002 The Complainant is entitled to have been paid in lieu of Notice based on a start date of 3rd of January 2004 finish date of 25th of June 2019 Gross weekly wage of €535.00
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Dated: 21st May 2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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