Complainant

Respondent

Parties

Eduard  Markovskij

Suretank Limited

Representatives

Brian Mc Avinue, Connect Trade Union

Thomas Ryan,  Peninsula

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-00041251-001

25/11/2020

The complainant commenced employment with the respondent as a welder on 29th August 2007.  He was based at one of the respondent’s depots [Depot 1] and was required to work at another depot [Depot 2) when the need arose.

On 14/09/2020 the complainant reported for work his afternoon shift at 2.00pm.  He and a colleague were sent by their manager (Manager A) to Depot 2 and they were also required to collect a gas bottle and other materials they would need at that depot. 

On arrival at Depot 2 around 5.00pm a manger (Manager B) at that depot formed the view that the complainant was unsteady and appeared to be under the influence of alcohol.  He contacted Manger A in Depot 1 who then drove to Depot 2 in order to observe for himself what was happening.  On the way he stopped at a pharmacy to purchase an alcohol testing package, but they were not in stock. The two managers took the complainant into an office and the complainant was asked if he had consumed any alcohol or drugs.  The complainant confirmed that he had taken two beers the previous night and did not consume any drugs.

The managers decided that the complainant was unfit for work and he was driven home.

An investigation meeting was held the following day, and this resulted in a disciplinary hearing at which it was decided that the complainant would be dismissed for gross misconduct.  An appeal was lodged, and this was not completed by the respondent.  The respondent subsequently decided to engage the services of an external HR company.  The complainant lodged his complaint with the Workplace Relations Commission on 25/11/2020.  He was paid €599.33 per week (excluding overtime) and is seeking compensation.  The fact of dismissal is not in dispute and those circumstances it is for the respondent to show that the dismissal was fair.  The respondent denies that it acted unfairly and asserts that it acted reasonably in the dismissal of the complainant for serious gross misconduct.

The respondent is a designer and manufacturer of cargo units for the offshore oil and gas industry.  There are two depots in the region and the complainant was employed as a welder with effect from 29/08/2007.  The events which led to the dismissal of the complainant originated on 14/09/2020.  On that date he attended for work at 2.00pm.  At 2.30pm he was directed to complete a job for in another site - Depot 2.  At 5.15pm the manager at Depot 2, Manger B, contacted Manager A to say that the complainant “was unstable and appeared to be under the influence of either drugs or alcohol.”  Manager A also reported that he was stumbling and very loud.   Manger B then drove to Depot 2 and he and Manager A brought the complainant into a portacabin and concluded that he was under the influence of alcohol.  The complainant admitted that he was unfit for work.  Manager B agreed that the complainant appeared drunk.  He was “unsteady on his feet”and “staggered against Manager B”.  Other evidence was that they could detect a smell of alcohol and he proceeded to take his overall off and attempted to get into the driver’s side of the car.  The complainant disclosed that he attended a party the previous night.  Manager A then drove the complainant home.  Manager B wrote a note of the incident that evening.  Manager A also wrote a note of the incident dated 15/09/2020.

An investigation meeting was held on 15/09/2020 and it was alleged that the complainant was unfit for work the previous day because he was drunk.  The complainant agreed to be tested by the company doctor in line with company policy, but the doctor was unavailable.  There was a smell of alcohol from the complainant at this meeting and he was asked if he would take a test.  He refused unless it was performed by a GP.  The complainant admitted to attending a party the night prior to the incident on 14/09/20 and he did not go to bed until 4.00am.  On the morning of the investigation meeting the complainant said that he woke up at 6.30am and he had a beer as there was no water in the house.  The allegation was confirmed that the complainant “was under the influence of something” and he was then suspended with pay.

On 21/09/2020 the complainant was invited to a disciplinary meeting on 23/09/2020.  He was furnished with copies of the relevant policies and also copies of all notes and reports relevant to this matter.  He was advised that he could bring a work colleague and he did so.

Following this meeting he was advised by letter on 25/09/2020 that he was “being dismissed with immediate effect for an irrevocable breach of trust and a serious breach of Health and Safety, particularly when his role involved operating machinery.”  He was advised of his right to appeal and the process for doing so was also confirmed.  The complainant appealed the decision and he was advised of his right to be accompanied by a trade union representative.  The appeal was heard remotely on 15/10/2020.  As part of the appeal process his trade union representative advised the appeal that it should be noted that the complainant had worked for 13 straight days prior to the 14th September and the impact of this on his regular routine was that he was occasionally using sleeping tablets.  The respondent submits that the trade union representative refused to let the complainant answer any questions and that he would answer on his behalf.  The respondent then considered that in such circumstances it would be prudent to appoint an independent third party to consider the appeal and, in that context, appointed a HR consultancy firm to hear the appeal.  The complainant refused to engage with the HR consultant despite two attempts to do so.  The HR Consultant then heard the appeal in the absence of the complainant and his outcome was to uphold the decision to dismiss.

The respondent’s representative summitted that employers are obliged to provide a safe working environment in accordance with the provisions of the Safety, Health and Welfare at Work Act. 2005.  This Act also places an obligation on employees to ensure that they are not under the influence of any intoxicant, to the extent that they would endanger their own health and safety at work or that of any other person.

It was also submitted that the case of Trevor Kennedy v Veiola Transport Ireland UD 240/2006 is relevant.  In that case a Luas driver failed a random breathalyser test and was dismissed following a disciplinary hearing.  The testing was conducted by a bio-scientist from an independent testing contractor.  He refused to provide a confirmation urine test and produced medical certification stating that he had gastroenteritis.  The EAT found that it was “reasonable” that the complainant should have allowed a urine test following the positive initial test and this refusal was in breach of company procedures.  His claim for unfair dismissal failed.

The respondent had a number of witnesses and their evidence is summarised as follows:

Manger A:  He is the general manager at Depot 1 and it was he who assigned the complainant to Depot 2 with the instruction to collect gas and other materials for the job.  He provided a car for the complainant and another employee on the day. This was at approximately 2.30pm on 14/09/2020.  He received a call from the general manager (Manager B) of the Depot 2 at approximately 5.15pm on 14/09/2020. Manager B told him that he was concerned about the complainant as he was unsteady on his feet, slurring his words and appeared to be under the influence of alcohol.  He decided to drive to Depot 2 and on the way, he stopped at a pharmacy to purchase an alcohol test kit.  None were in stock, so he proceeded to the depot. On arrival he observed the complainant from his car and then met the complainant.  Manager A explained that the complainant had bloodshot eyes, was slurring his words and was unsteady on his feet.  He met Manager B and they brought the complainant into a portacabin.  The complainant tripped on the way in.  He asked the complainant how he was feeling, and he responded that he was ok.  He then asked the complainant if he had taken any alcohol recently and the complainant replied that he had two root beers the previous night.  The complainant also denied that he had taken any drugs.  The complainant then had a conversation with him about his coaching fitness class and his speech was slurred throughout.  He asked the complainant if he was fit for work and the complainant said that he was not.  Manager A then offered to bring the complainant home and he done so.  While removing his overalls the complainant appeared unsteady and then proceeded to sit in the driver’s seat.  The complainant shook his hand and went to give Manger B a hug.  Manager A then brought the complainant home.  On the journey the complainant said that he was at a small party and it finished about 5am or 6am.  During the journey Manger A said that he could get a smell of alcohol.  It was approximately 6.00pm when he dropped the complainant at this house.

Under cross examination Manger A said that when he met the complainant at around 2.00pm in Depot 1 on 14/09/2020 he dd not notice anything extraordinary.  Manager A also confirmed that his intention in purchasing an alcohol test was to determine if the complainant was fit for work.  It was also confirmed by Manager A that it was not the complainant who was asked to drive the car but the other employee who was assigned to the task.  Manager A was asked why he did not try to get an alternative doctor to perform the test he said that they use the company doctor and as he was closed they were unable to get the test done and he did not consider looking for an alternative doctor.

Manager B:  Manager B confirmed that he is the general manager in Depot 2.  He had requested assistance from Manger A in relation to a job.  At approximately 5.00pm on 14/09/2020 he observed the complainant as being unsteady on his feet, slurring his words and had the appearance of being under the influence of alcohol.  He contacted the complainant’s manager, Manager A and advised him of his observations.  Manager A said that he would drive to the depot and observe.  Manager A arrived, and they brought the complainant into a portacabin.  He was still unsteady on his feet, was slurring his words.  The complainant tripped on his way into the portacabin.  It was clear that he was not fit to work. Manager A offered to take the complainant home and he done so. 

The following day he, Manager B, held an investigation meeting the with complainant.  He thought that he may have consumed alcohol and asked him if he would take an alcohol test.  He said that he would and then changed his mind to say that he wanted it done by a Garda or Doctor.

The meeting was attended by the complainant and a colleague who was a translator for the complainant.  Manager A was also present as a notetaker.  At the investigation meeting the complainant said that he had taken some drink at a house party on the Sunday night and this finished sometime between 4.00am and 5.00am.  The complainant also told the investigation that he went to the gym on Monday morning as he is an instructor. He took a number of cans of Red Bull energy drink.  He arrived for work and when he arrived at the second depot he had another can as he had a rapid heartbeat. 

He decided to suspend the complainant, and this was confirmed in a letter dated 15/09/2020.

On the basis of the information he had obtained and in the context of the Alcohol and Drugs Policy he felt that a disciplinary process was warranted.

Ms C: Ms C is a HR manager with the respondent.  She conducted the disciplinary hearing on 23/09/2020.   The complainant was invited to the meeting by letter dated 21/09/2020 and given copies of all statements and minutes of meetings.  He was also provided with copies of the Alcohol and Drugs policy and Disciplinary policy.  Ms C referred to the minutes of the meeting and noted that the complainant was advised of his entitlement and encouraged to have employee representation, but the complainant confirmed that he understood but was ok to proceed.

Ms C confirmed that the complainant admitted having taken alcoholic drink the night before the incident and had one beer early in the morning. 

The decision to dismiss was hers and she done so having reviewed the investigation notes and that the complainant brought nothing new to the disciplinary hearing.  She felt that there had been an irrevocable breach of trust and the health and safety breech was very significant.

Under cross examination Ms C was asked if she aware of the Statutory Instrument 146/2000 which deals with the code of practice on grievance and disciplinary procedures and in particular the specific requirement in relation to trade union representation.  Ms C confirmed that the complainant was advised that he could have employee representation but not specifically trade union representation.

Ms C was asked to clarify the basis of the assertion in the Alcohol and Drugs policy and reiterated in the letter of dismissal letter that states, “the organisation therefore upholds its legal right to conduct testing for intoxicants on site or to arrange for employees to attend a medical practitioner for testing.”    The witness was unable to confirm the legal basis for the inclusion of this in the policy or her letter of dismissal.

Ms C was asked if there was any medical proof that the complainant was under the influence or alcohol or other substance and she confirmed that there was no medical proof.  She was asked to confirm how it was substantiated that the complainant was under the influence of alcohol and she confirmed that it was based on the observations of two managers and consistent with the procedures as outlined in the Alcohol and Drugs policy.

Mr E:   Mr E confirmed that he was the managing director.  Mr E heard the initial appeal by the complainant.  He knows the complainant for 13 years.  He was disappointed when he heard of the incident and he was aware it was not the first time this happened.  The spoke to other employees who were afraid to make a statement.  Mr E outlined in detail why it was important not to have employees under the influence of alcohol while at work.  This is a safety critical environment and employees work with serious machinery and in close proximity to other employees.  The complainant would usually work alongside two other employees.  Mr E confirmed that the complainant admitted taking alcohol the previous night.     

Under cross examination Mr E was asked to highlight where in the minutes of the appeal hearing it made reference to the complainant being under the influence of alcohol.  The complainant’s representative noted that this was not in the minutes and that there was no proof that the complainant was under the influence of alcohol.

The complainant commenced employment as a welder with the respondent on 29/08/2007.  His complaint relates to an incident which occurred on 14/09/2020.  On that day he was working an afternoon shift and reported for duty at 2.00pm in Depot 1.  The manager, Manager A, asked him to go to a local town and collect gas and other supplies for a job at Depot 2.  The complainant arrived at the Depot 2 around 5.00pm.  A manager at that depot, Manager B, contacted Manager A to say that he believed the complainant appeared to be under the influence of alcohol or drugs.  Manger A left to see what was happening and tried to purchase an alcohol test package at a pharmacy, but these were out of stock.   The complainant was taken to an office and both managers were present.  He was asked if he had consumed any alcohol or drugs and he said that he had two root beers the night before but denied taking any drugs.

The complainant attended an investigation meeting the following day.  This was conducted by Manager B and Manger A was present in a note taking capacity.  He was asked if he was under the influence of alcohol on that day and how he was feeling.  He was asked if he would be willing to take a test and he said he would.  Manager A then presented the complainant with a breathalyser test and he indicated that it would be his preference to have such a test undertaken by a medical practitioner.  He requested to speak with a union representative or legal advisor but was told that that would not be necessary.  The investigator, Manger B, told the complainant that it was being alleged he was under the influence the previous day.  He was asked if he was fit for work on 14/09/20 and he confirmed that he was.  He was asked again about the breathalyser test and he confirmed that a member of the Gardaí or doctor could take the test.  The HR manager contacted the company doctor, but he was not available.

At the end of this meeting the complainant was given a letter by Manger A which informed him that he was now suspended pending the outcome of the investigation.

It was submitted on behalf of the complainant that when he reported for duty on 14/09/2020 both his manager, Manager A, and another colleague did not detect anything unusual about him.  The investigation meeting held on 15/09/2020 was conducted by Manager A and Manger B both of whom had made allegations that the complainant was under the influence of alcohol or another substance on 14/09/2020.  The purpose of the investigation meeting was to determine if the allegations in relation to the 14/09/2020 were true.  However, at this meeting he was asked to take a test.  Such a test on the day after the alleged incident would have no bearing in relation to the events of the 14/09/2020.  The complainant was willing to take a test but only by an appropriately qualified person.  When the company doctor was not available the respondent did not make any efforts to explore alternative measures.

It was submitted on behalf of the complainant that the respondent’s Drugs and Alcohol policy states:

“The company may carry out alcohol and drug testing which may be required on health and safety grounds out of our duty of care towards customers, employees, contractors and any other third parties.  Failure to comply with such a request may be treated as an act of gross misconduct and may result in your dismissal.  Also, failure to pass such a test may be treated as an act of gross misconduct and may lead to your dismissal following resource to the Company’s disciplinary procedures.

The Safety, Health and Welfare at Work Act, 2005 states that if reasonably required by his or her employer, an employer must submit to any appropriate, reasonable, and proportionate test for intoxicants by, or under the supervision of, a registered practitioner.  The organisation therefore upholds its legal right to conduct a testing for intoxicants in the following situation …”

It was submitted on behalf of the complainant that it was not possible to prove that the complainant was under the influence of alcohol or other substance as the respondent failed to enact their own policy and carry out a test by or under the supervision of a registered medical practitioner.

The complainant’s representative also noted that the complainant was never advised of his right to be represented by a trade union representative.  In all correspondence the complainant was advised and encouraged to have “employee representation”.  Such advice is not in accordance with the provisions of the Statutory Instrument, 146/200.

The complainant’s representative also noted that the disciplinary hearing did not make provision for trade union representation.  The disciplinary invite letter stated that the complainant would be given a fair hearing and that all facts would be considered.  The complainant was placed in an uncomfortable position by having to seek a work colleague to accompany him at the meeting.

The appeal process initiated by the respondent in line with their procedures did not conclude.  The complainant attended the remote appeal meeting on 15/10/2020 and was accompanied on the call by his trade union official.  There were issues with the minutes of the meeting and the delay in issuing these.  These concerns were make known to the person hearing the appeal.  There were further issues with the amended minutes.  A request for the outcome of the appeal to be made known was met with a reply that the respondent now wished to engage an impartial third party.  This was rejected by the complainant’s representative and that the only way to conclude the matter was by a referral to the WRC.

The complainant’s representative submitted that it would be unreasonable to dispute what Manger A and Manager B allege against the complainant.  It is submitted that both managers failed to adhere to the respondent’s Drugs and Alcohol Policy and have the complainant undertake a test under the supervision of a medical practitioner.  The facts in relation to this matter could only be determined by the administration of such a test.  Both managers could not determine if what they were observing were the result of a combination of high blood pressure and excessive caffeine or other medical condition.  The complainant was willing to take a test undertake under medical supervision.

The complainant’s representative submitted that the complainant was at all times denied fair procedures and his dismissal resulted from the unsubstantiated allegations and suspicions.

The complainant’s representative also made reference to the case of ADJ-00028756 where the Adjudication Officer in deciding on the redress for unfair dismissal took into account Section 7 of the Unfair Dismissals Act and in particular Section 7(3).

The complainant has taken up new employment since his dismissal and the complainant was asked to furnish details of his earnings and the attempts to mitigate his loss.

Evidence of complainant:  The complainant was not giving any direct evidence at the hearing but was agreeable to answer questions from the respondent’s representative with the assistance of a translator.  This was facilitated.  The complainant confirmed that he worked for 13 years for the respondent.  He was asked why he was unsteady on his feet and speaking in a loud manner 14/09/2020.  He said that that was not the case. He was fit for work but was dizzy as he had taken too much Red Bull.  He wife had checked his blood pressure and he was getting better.  The complainant was asked if he admitted he was unfit for work on 14/09/2020 and he confirmed that he decided to go home as he was dizzy and not himself.  He did not have any alcohol taken. 

It was put to the complainant that there was no evidence that he was given a choice to either stay at work or go home.  The complainant said that he felt dizzy from the Red Bull and would prefer to go home.  He was also tired as he did not have a day off in the previous two weeks.

In relation to the incident in Depot 2 on 14/09/2020 the complainant was asked if he was stumbling and loud.  He confirmed that he was, and it was due to the taking of Red Bull.  This was a choice he made.  In relation to other observations in relation to being unsteady on his feet and slurring his words the complainant explained that he was too tired, and he walked the line and back when asked.  As English is not his first language it can sometimes be difficult for people to understand him. The complainant explained that he was not drunk and that he attended a birthday celebration the previous night.  He drank a beer in the morning as the water supply in his estate was off that morning.  He never admitted to being drunk.

The fact of dismissal is not in dispute.  It is important to consider the applicable law.  Section 6 of the Unfair Dismissals Act 1977, as amended, (the Act) states as follows:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

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)   the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

“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 of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

The Acts deem a dismissal to be unfair until the respondent can demonstrate that it was neither substantively nor procedurally unfair.  The combined effect of the above sections of the Act require me to consider whether or not the respondent’s decision to dismiss the complainant, on the grounds stated, was reasonable in the circumstances.  It is well established case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the respondent’s decision in the circumstances.  As the Adjudication Officer in this case it is not my responsibility to establish the guilt or innocence of the complainant in relation to the events which occurred on 14/09/2020 and 15/09/2020.  The Employment Appeals Tribunal (EAT) in the case ofLooney and Co Ltd v Looney UD 843/1984provides a valuable summary in relation to the role:

“It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

The function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done.  This is the standard by which the respondent’s actions must be judged against.  The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

In cases where a dismissal involves gross misconduct the EAT set out the appropriate test to be applied in such circumstances.  In O’Riordan v. Great Southern Hotels [UD1469-2003] the EAT stated as follows:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild of the accused of wrong doing.  The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

In the within case there are clearly issues which the respondent was required to address. 

I have carefully considered the submissions received and evidence presented by both parties at the hearing.  The allegations against the complainant were very serious and would have important implications for both the respondent and the complainant.  Trust is an essential component of all employer/employee relationships.  The respondent had a duty to deal with the incident which presented on 14/09/2020.  It is clear that a policy and procedure existed for such an eventuality.  While this was followed in part it still did not produce anything of evidential value other than the opinions of two managers.  It is unclear what the purpose or intention of Manager B was in relation to an over the counter test and what procedures were to follow in the event of a positive reading.  From the evidence adduced it would appear that no consideration was given to the validity of such testing and its subsequent evidential value.

Arising from this incident an investigation process was set up immediately.  The investigation meeting was held the following day and it is clear that further concerns arose in relation to the complainant at that meeting.  However, a decision was made by Manager B to proceed with the investigation meeting and the complainant was asked to undertake a test during that meeting on a testing kit produced by Manager A.  The complainant was not advised in advance that this would be done and his reluctance to undertake the test by someone who was his manager and now notetaker at the investigation is understandable.  His position that he would take the test by or under the supervision of a medical practitioner was an adequate response in view of the fact that he was also told that he did not need to contact his trade union or legal representative.  Regardless of the intention, this action denied him the right to such representation at that meeting.  The hearing was not given any rationale as to why the meeting could not have adjourned at that point. 

It is clear that the investigation process was conducted by Manager A who made the complaint.   What is not clear is who was responsible for instituting the investigation and what, if any, were the terms of reference.  From the evidence adduced it would appear that the investigation was in some way instigated by HR but not overseen by HR.  It is incredible that Manager A who was a witness to the incident was asked by Manager B to be the note taker at the investigation meeting.   Manager B was also a witness to the incident. The investigation process did not produce a report of their findings.  There was evidence that minutes were produced in addition to the notes of the initial incident which were entirely compiled by Mangers A and B.  They were, as a matter of fact, investigating their own complaints. The respondent’s own submission clearly states Manager A and Manger B brought the complainant into a portacabin “and came to their own conclusion he was under the influence of alcohol.”  There was no independent investigation of this matter by the respondent.  The Latin maxim “Nemo judex in causa sua” [no-one is judge in his own cause] is a fundamental principle of natural justice and is most appropriate in this instance.  I find that there was no independent investigation in this case which led to the dismissal of the complainant.   The Labour Court in T.E. Laboratories Ltd v Jakub Mikolajczyk ([2019] 30 E.L.R. 198 stated that the guidelines in relation to disciplinary investigations in the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures)(Declaration) Order 200 (S.I. 146 of 200) are “not without reason” and are so that “facts can be separated from suspicion and rumour and explanations can be offered by anybody who could, potentially, be facing a disciplinary process”.

A right to fair procedures and natural justice in implied into contracts of employment.  These rights are particularly important in disciplinary matters where a dismissal may have a negative repercussions on the employee’s reputation and their prospects for any future employment.  The subject of any disciplinary process should be provided with a full and fair opportunity to state his or her case as part of the investigation process.  It is widely accepted that as part of fair procedures and natural justice that an employee has a right to challenge his or her accusers before any findings are made.  While these rights may be less relevant at a preliminary investigatory stage they are paramount to any disciplinary hearing which is the point at which a decision is made in such matters.  Indeed, where the potential sanction could warrant dismissal such a right cannot be ignored by the employer.  In Borges v. The Fitness to Practice Committee [2004]1 IR 103 provides that where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures.  In that case, Keane CJ stated:

“It is beyond argument that, where a tribunal such as the first respondent is inquiring into an allegation of conduct which reflects on a person’s good name or reputation, basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers. [1971] IR 217.”

It follows then that in addition to the right to cross examine his or her accuser there is a further entitlement to be told of this right.  If an employee fails to ask for cross examination, they cannot be faulted for failing to ask. 

The complainant was not advised of his right to trade union representation at the disciplinary meeting.  It is not acceptable that the respondent submits that the fact that the complainant did not request such representation he was therefore happy to proceed.  The respondent has a duty to ensure that their procedures are fair and transparent.  The complainant was given a mere two days’ notice of the disciplinary meeting and this can only be regarded as acutely inadequate.  The complainant is entitled to have time to prepare his case and to consult with his representative.  I find that the respondent’s view that the complainant did not object is unacceptable.  The respondent has a duty to ensure that fairness exists in its dealings in such circumstances.

There was very poor reasoning by the respondent in relation to its failure to complete the appeals process.  The complainant was initially advised that “the decision of this appeal hearing is final in accordance with the Company Appeal Procedure.”  There was clearly a failure by the respondent to conclude the appeal process in line with its procedure and as advised to the complainant.

In an Employee V an Employer ADJ-0000381on the subject of appeals the Adjudication Officer stated:

“An appeal is not just an afterthought or a procedure that must be completed as a matter of course.  It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance.  An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction.”

The complainant attended the hearing in good faith and was represented by his trade union.  Notwithstanding the difference of opinion between the person hearing the appeal and the trade union representative it was imperative that this process concluded in a timely manner and consistent with the policy in place.

Overall, I find that there have been serious procedural flaws in the investigation process and disciplinary hearing which resulted in the dismissal of the complainant.  It is difficult to understand why these deficiencies were not recognised at the disciplinary hearing, the appeal hearing or during the additional appeal review process. 

Where procedural deficiencies are identified these must be considered in line with section 6(1) of the Act which states that “having regard to all the circumstances.”  In that context I note the case of Elstone v CIE (High Court, 13 March 1989, unrep.) it was held:

“that the mere fact of some failing in due or agreed procedures is not a final and decisive matter for the court on appeal is clear from the provision of s. (6)1), that regard must be had ‘to all the circumstances’ and not to one circumstance to the exclusion of the other.”

The case of Shortt v Royal Liver Assurance Ltd [2008] IEHC 332, Laffoy, J held that a central consideration to fair procedures is whether or not any purported breach of natural justice was ‘likely to imperil a fair hearing or fair result.”

Having regard to the foregoing points and the totality of the evidence as presented, I find that no reasonable employer would have dismissed the complainant in the circumstances. There was no independent investigation and there was no evidence to confirm that the complainant was under the influence of alcohol or drugs. In the light of same, I find that the dismissal of the complainant was unfair for the purposes of the Acts and the complainant’s claim is well founded.

I do find that the complainant contributed to the situation he found himself in.  I accept that he participated constructively in the investigation and disciplinary process.  However, his inconsistent explanations and lack of clarity were unhelpful.  In the circumstances in which he found himself in the complainant did not seek medical advice in relation to his claim that he was undergoing an adverse reaction to a combination of caffeine, sleeping tablets and an energy drink.  His explanations lacked consistency. 

Regarding a remedy, objectively, this employment relationship is irretrievably broken.  I do accept that a breach of trust has occurred in this case and reinstatement and re-engagement are not viable options.

Redress:

Section 7 of the Act, in its relevant parts, provides:

7. Redress for unfair dismissal

(1) Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

…. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

The Complainant submitted that he is seeking compensation for unfair dismissal. It is incumbent upon the Complainant to give plausible evidence on mitigation of loss. He has an online account with a recruitment agency and also sought employment through “word of mouth.”   While he made some efforts to mitigate his loss I am not satisfied that he approached this with the resolve that is set out in the case of the Employment Appeals Tribunal v Continental Administration Co Ltd (UD858/199) where it stated:  “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work.  It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work.  The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”  I accept that the Covid-19 pandemic creates difficulties in seeking employment, but I do not accept that it is not a barrier to a complainant seeking to mitigate his loss.

The complainant submitted that his net pay from the Respondent was €741.93 per week. This was based on the complainant’s earnings for 2019 as the impact of the pandemic made it difficult to calculate 2020 figures.  The complainant submitted revenue documents and pay slips.  In reviewing the documentation, I have taken in account the provisions of S.I. No. 287/1977 (Unfair Dismissals (Calculation of Weekly Remuneration) Regulations, 1977 and the relevant provisions of the Unfair Dismissals Act.  The average weekly net pay for the complainant was €693.80.

The Complainant submits that he made attempts during the Covid-19 crisis and secured employment on 09/11/2020.  This was a period of six weeks and three days from the date of dismissal.  I estimate the loss for this period of time as €4,579.08.

The complainant submitted documentary evidence of payslips showing the average earnings from for Company X of €529.33 per week. The loss is €164.49 X 35 = €5,756.41.

Section 7(3) of the Act allows me to consider “…any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 2014, or in relation to superannuation.” Evidence was given in this case that the Complainant had 13 years unbroken service with the Respondent. I find that the Complainant will have a prospective loss of rights with regards to any future redundancy situation that may arise, and, having taken account of his contribution to the dismissal and his limited attempts to mitigate his loss, I would put a value on this prospective loss at €4,500.

Having regard to all the circumstances in this case, I find that the appropriate compensatory sum to be €15,000.  This quantum reflects the complainant’s efforts to mitigate his loss and his contribution to the dismissal.

I find that the complainant was unfairly dismissed, and I direct the respondent to pay the complainant compensation of €15,000. as a just and equitable amount having regard to all the circumstances of this case.

Unfair dismissal.  Under the influence of alcohol or drugs