FULL RECOMMENDATION
PARTIES : SIG TRADING (IRELAND) LIMITED SIG IRELAND DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00023533 CA-00030127-001 Background The Complainant commenced employment with the Respondent as a driver in August 1999. Following a bike accident in 2016, he was absent on sick leave for a period of time. He returned to work mid-2017 and was assigned to warehouse duties. In March 2018 he went on sick leave, he was certified fit to resume work by the Respondent’s Occupational Health practitioner and resumed work in early 2019. On the 18thFebruary 2019, he was selected for a random drug and alcohol test which he failed and was subsequently dismissed. Dismissal is not in dispute and therefore, it is for the Respondent to establish that in the circumstances of this case dismissal was not unfair. It was agreed by both parties that the Court would take both submissions as read, that each party would give a ten-minute overview of their submission and the Court would then proceed to hear witness evidence. Summary of Respondent’s submission and evidence. The Respondent’s health and safety policy along with employee’s contract provide for random drug and alcohol tests. As a driver for the Respondent the Complainant would have been aware of the policy and a summary of the Respondent’s policy is on every staff notice board. On the 18thFebruary 2019 prior to starting his shift the Complainant and several other safety critical employees were the subject of the Respondent’s random alcohol and drug testing process. Employees are selected randomly and are informed of their selection immediately prior to the testing. As is the normal practise the Complainant was given an information sheet detailing the process. The initial test is conducted by means of a ‘Drug Wipe ’which in this case was carried out by the Respondent’s Health, Safety and Facilities Manager. The Complainant’s test was positive. However, as he had wiped the swab on the sleeve of his jacket a second ‘Drug Wipe’ was done. This too was positive in that it indicated the presence of illegal substances. In line with the Respondent’s policy the Complainant was required to provide a urine sample before leaving the premises. The sample was taken by an external provider and tested in a government accredited laboratory. The Complainant signed a detailed consent form before submitting to the test. Pending the outcome of that test the Complainant was suspended from duty on full pay. The Respondent offered to book a taxi for the Complainant, but he declined the offer. On the 26thFebruary 2019 the result of the drug test was received by the Respondent, and it confirmed the presence of Cannabinoids in the Complainant’s system on the day the test was carried out. On the 1stMarch 2019 the Complainant was invited to an investigation meeting scheduled for the 5thMarch 2019 and was advised that the meeting would be chaired by Ms Ingrid Craig, Operations Manager for SIG Omagh. The Complainant was provided with copies of witness statements and the certified test results, copies of the Alcohol and Substance Misuse policy, Disciplinary policy and advised that he had the right to be accompanied by a work colleague. This meeting was deferred at the request of the Complainant who was certified by his GP as unfit to attend for work in engage in the process for two weeks. Ms Craig in her evidence to the Court stated that she had received training on two occasions in respect of the Respondent’s policies and, in carrying out investigations she relied on those policies. On the 25thMarch 2019 the Complainant attended an investigation meeting. Prior to starting the meeting, Ms Craig checked with the Complainant if he had read the policies, he confirmed that he had, she also asked him if he wanted representation at the meeting and he stated that he did not. The Complaint did not deny the positive test he mentioned that on the previous Saturday he was working on a car and had smoked a joint. Ms Craig stated that the Complainant confirmed to her that he had not informed the Respondent prior to the drugs and alcohol test that this had happened. It was Ms Craig’s evidence to the Court that based on the test results and her interview with the Complainant she felt he had a case to answer. The Complainant was advised of her decision by letter. The Complainant’s representative in cross examination put it to Ms Craig that she had asked people who were present at the testing to give a written statement, but she had not interviewed those people. Ms Craig confirmed that this was correct, she also confirmed that during the meeting the Complainant had raised a number of historical issues. The next witness to give evidence on behalf of the Respondent was Mr Patrick Mc McCullagh who holds the position of Branch Operations Manager in Belfast. Mr Mc McCullagh stated that he held the disciplinary meeting and made the decision to dismiss. At that point in time, it was his second disciplinary hearing for SIG, but he had previous experience in carrying out disciplinary hearings and had training in same. Mr McCullagh stated that he had a good understanding of the policies. By letter of the 2ndApril 2019 the Complainant was invited to attend a disciplinary hearing on the 5thApril 2019, and was advised that Mr McCullagh would be chairing the hearing. The Complainant was provided with copies of the relevant policies. The Complainant was also advised that he could be accompanied. The Complainant attended on the 5th and was accompanied by a colleague. At the hearing the Complainant stated that he had smoked the joint in error not knowing it was a joint at the time, as it had rolled under the car where he was working, and he had picked it up thinking it was his cigarette. Mr Mc McCullagh in his evidence to the Court stated that he had asked the Complainant if he had an addiction issue and the Complainant stated that he did not. The Complainant raised some historical issues which he requested be taken into consideration. It was Mr McCullagh’s evidence that taking the following into account, the fact that the Complainant had altered his explanation in respect of what occurred, the fact that the level of substance recorded was substantially above the threshold, the fact that the Complainant worked in a safety critical role, he felt that dismissal was the only option. Mr McCullagh stated that he had considered if there were other roles that the Complainant could be assigned to, but roles in the warehouse were also safety critical as they included tasks such as driving a forklift and possibly working on or with other machinery. On that basis he did not believe it would be appropriate to move the Complainant to that area. It was Mr Mc McCullagh’s evidence that he concluded that there was an irreparable breach of trust and therefore dismissal was the only option. In response to a question from the Complainant’s representative, Mr Mc McCullagh agreed that failing a drug/ alcohol test is considered gross misconduct. He also accepted that the letter inviting the Complainant to the disciplinary process did not mention breach of trust. Mr Mc McCullagh went on to say that that Complainant had not put forward any mitigation and did not appear to understand the seriousness of the issue. The final witness for the Respondent was Mr Damien Kitt Operations Director who informed the Court that he has over twenty years’ experience in disciplinary processes in different companies. Mr Kitt was the appeal officer in this case. Mr Kitt stated that the Complainant put forward two grounds for his appeal 1) severity of sanction and 2) failure to apply section 8.4 of the Respondent’s policy. Section 8.4 of the policy states that the Respondent will provide support if an employee has a substance addiction. The Complainant was represented by his Trade Union Official at the appeal hearing on the 9thMay 2019. Mr Kitt stated that as the Complainant had confirmed that he did not have an addiction issue paragraph 8.4 was not relevant to his consideration and that he had explained that to the Complainant. In respect of the sanction being too severe, Mr Kitt stated that the Complainant had reported for work intending to drive his van under the influence of drugs. The consumption of drugs is clearly identified in the Respondent’s policy as constituting gross misconduct. Mr Kitt stated that he did not hear anything at the appeal hearing that would cause him to disagree with the decision arrived at by the decision maker and therefore, he upheld the decision to dismiss on the basis of gross misconduct. The Complainants representative put it to Mr Kitt that the application of section 8.4 was discretionary so he could have applied it. Mr Kitt accepted that it was discretionary but based on the facts that the Complainant had stated that he did not have an addiction issue, he did not believe it was appropriate to apply section 8.4 of the policy in this case. The Respondent submitted that the Complainant working in a safety critical role had consumed an illegal substance prior to attending for work. He was aware of the Respondent’s random testing policy and was aware of the consequences that could arise from failing such a test. In this case the test showed that his levels were significantly above the threshold figure. The Respondent relied on a number of cases which it opened to the Court and in particular the case ofLooney & Co. Ltd versus LooneyUD 843/1984 which set out the principles to be applied in case of gross misconduct as follows: “It is not for the Tribunal to seek to establish the guilt or innocence of the complainant, nor is it for the tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would be to substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.” The Respondent submitted that in the circumstances of this case the decision of the Respondent was reasonable and was a decision that any reasonable employer would take. Summary of Complainant’s submission and evidence The Complainants representative submitted that it was not disputed that the Complainant had failed the drug test. The Complainant disputes that he was aware of the Substance and Alcohol abuse policy he believes that he was absent on sick leave when the policy was introduced and for a period of time, he was not on driving duties he was working in the warehouse. The Complainant submitted that on the day in question when he turned down the Respondent’s offer of calling him a taxi, he was allowed to drive home, and the Respondent did not call the authorities so they could not have been that concerned about the test results. The Complainant submitted that the Respondent did not consider any option other than dismissal and that he does not accept that the Respondent had lost trust and confidence in him. The Complainant disputes the Respondent’s assertion that he changed his version of events in respect of how he came to have drugs in his system. The Complainant in his evidence to the Court stated he has returned to driving a van in February 2019. On the morning in question, he volunteered to take the test first, only cannabis turned up in the test. The Respondent offered to call him a taxi, but he decided to drive home after the test. The Complainant stated that the letter inviting him to the investigation meeting did say he could bring a colleague but on the day of the test he was told he was not to talk to anyone when he was on suspension, so he did not feel he could bring a colleague with him. It was the Complainant’s evidence that he was shocked that he got a positive result. His evidence was that he was working on his car with a friend and that he picked up the wrong cigarette. They both smoked rollies he smoked the joint by mistake but only inhaled a couple of times. The Complainant confirmed to the Court that he does not have an addiction problem. In response to a question under cross examination the Complainant confirmed that he had received a copy of the Disciplinary procedure but stated that he had flicked through it and had not actually read it. The Complainant accepted that he knew when he smoked it, that it was a joint, but he did not think anything of it as it was Saturday, and he only inhaled a couple of times. The Complainant confirmed that he understood that he could not drive under the influence, but he chose to bring his car home even though he had failed the test. The Complainant confirmed that he was aware of two people who were sacked for breaching the policy. The Complainant’s Representative opened a number of cases to the Court in particularConnaught Gold v Connor RafterUD 48/2014 where it was held that “the role of the Tribunal in unfair dismissal case is not to establish an objective standard but to ask that the decision to dismiss comes within the band of reasonable responses that an employer might take having regardto the particular circumstances of the case.” The Complainant’s representative submitted that in the within case dismissal was not within the band of reasonableness. At the time of dismissal, the Complainant had no warnings his file was clear. The decision to dismiss was disproportionate and not a reasonable decision. The Law
6.— (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) the capability, competence or qualifications 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 which 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. Issue for the Court Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was not unfair. Discussion Dismissal in this case as submitted by the Respondent arose from the Complainant failing a random drug and alcohol test. The results of the test are not in dispute. Nor is it in dispute that the Complainant opted to drive home after failing the test. While the Complainant stated that he was not aware of the policy he did confirm to the Court that he was aware of two people who had previously been dismissed for breaches of the policy. The Respondent also submitted to the Court sign in sheets for toolbox type training where the policy had been mentioned and the Complainant’s signature was on the attendance sheet. Both parties opened cases to the Court which addressed the band of reasonableness test. The Court having considered the submissions of the parties both written and oral and the evidence of the parties finds that on the balance of probabilities the Complainant was familiar with the Respondent’s Alcohol and Substance misuse policy and was aware of the likely consequences arising from a breach of same. The Court therefore determines that there were substantial grounds in this case justifying dismissal and that the decision to dismiss fails within the band of reasonableness. The appeal fails. The Decision of the Adjudication Officer is upheld. The Court so determines.
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