Complainant

Respondent

Anonymised Parties

A Warehouse Operative

A Retailer

Representatives

Krystian Boino ,Hoban Boino Solicitors

Conor O'Gorman, 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-00043954-001

08/05/2021

The Complainant commenced employment as a Warehouse Operative with the Respondent on 25 September 2008 and was paid €884 per week. He was issued with a final written warning in April 2020 and was subsequently dismissed from his employment on the grounds of gross misconduct in November 2020 because he operated machinery under the influence of medication.

The Complainant was issued with a final written warning in April 2020 because he covered CCTV cameras in a small room used by delivery drivers during the day as a waiting/rest room. He stated that he covered the cameras because he was mentally unwell on the day and did not want anybody to see him crying. It was submitted that a reasonable employer, while being entitled to impose a disciplinary sanction, would not have issued a final written warning.

Further to this, he stated that he felt unwell on 7 August 2020 and rather than calling in sick, which he believed might result in further disciplinary action, namely dismissal, decided that he would present to work and ask his line manager if he could swap the day. As this was refused, he started work and as he subsequently began to feel unwell and to prevent a panic attack took a Xanax tablet, having already taken one prior to beginning work. He stated that when he became aware of the side effects of the tablets, he stopped operating the machinery, carried out other tasks and finished his shift early, departing at around 4am.

On or around 12 August 2020, the Respondent commenced investigations in relation to empty beer cans left in the carpark and the consumption of alcohol in workplace. The Complainant was approached by the manager in relation to this incident and in conversation disclosed that, on the day the beer cans were found, he had taken Xanax. As a result of this admission, he was suspended and an investigation commenced.

It was highlighted by the Complainant during the investigation that:

·       Although he informed his line manager both about his health problems and that he took Xanax, he was not directed to either go home or to perform other types of work

·       The reason the Complainant attended work was to try to talk to his manager “face to face” because he was afraid that an unauthorised absence could ultimately cost him his job

·       The Complainant was at work on such medication before and when he informed manager of same he was directed to perform work not involving operation of machinery

·       He had similar panic attacks in the past and when he explained situation to the manager he was allowed to go home

The Complainant’s representative asserted that Xanax had been prescribed to him since 2014 and that there was no wrongdoing on his part in relation to his consumption. It was also highlighted that although the dismissal letter went into some detail to establish that the Complainant overdosed on the prescribed medication, the Respondent’s doctor should have checked the dosage of the medication with Complainant’s GP and established the time intervals over which the medication could be taken. It was also asserted that the Complainant did not overdose on the medication as per the manufacturer’s leaflet information and that he stopped operating the machinery as soon as the side effects became apparent to him.

In April 2020, the Complainant was issued with a final written warning in relation to a conduct matter. On 12 August 2020, the Complainant advised his line manager that on 7 August 2020 he had taken prescription medication (Xanax) whilst on site and operating machinery.  The following day, the Complainant was suspended on pay pending an investigation. An investigation commenced, the Complainant was advised of the allegation under investigation, the possible outcome, his right to representation and who the decision maker would be.

The Complainant attended the investigation but did not exercise his right to representation. He admitted the allegation against him, namely that he had taken two Xanax, one before his shift at 6pm and the second while at work at 9.30 pm and that he had operated machinery while under the influence. He further claimed that he had come to work to ask for the shift off and that he had asked for a swap or a holiday. During the shift, the Complainant operated machinery. He did not finish his shift and left at 4am having to be driven home due to his medical condition. The investigation took account of medical evidence as to the effect of a double dose of Xanax.

The allegations were upheld following a full investigation and the matter was put forward for a disciplinary meeting chaired by the Operations Manager. The Complainant was invited to a disciplinary meeting by letter dated 5 November 2020. The invitation set out the allegations arising from the investigation, the possible outcome, the name of the deciding manager and the Complainant’s right of representation.

The disciplinary meeting took place on 11 November 2020. The Complainant was accompanied by his SIPTU official. The Complainant was given a full opportunity to set out his case. He again confirmed that he had taken Xanax immediately prior to coming to work as well as while he was at work and that he had operated machinery while under the influence. He also added that he had not read the instructions on the tablets. The Complainant accepted he had acted in breach of his health and safety obligations for which he apologised and put forward several points of mitigation.

The Operations Manager took account of the Complainant’s apology and other mitigating factors. He also considered the fact that the Complainant was already in receipt of a Final Written Warning. In the event, the Operations Manager felt that the bond of trust between the Complainant and the company was fundamentally broken leaving no choice other than dismissal. The Operations Manager’s decision was communicated to the Complainant in writing dated November 20, 2020. The letter advised the Complainant of his right of appeal.

The Complainant appealed his decision in writing on November 27, 2020. An appeal meeting was held on December 14. The Complainant reiterated the mitigating circumstances he had raised at the disciplinary stage. The manager considered the matters raised, the Complainant’s admissions and his Final Written Warning. In the event the Complainant’s dismissal was upheld.

THE LAW:

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.

Section 7 of the Act, in relevant part, makes provision as follows:

(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….

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal

ANALYSIS

The combined effect of the above sections of the Act requires me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair. 

In terms of the substantive aspect, it is well established case law that it is the role of the Adjudication Officer to consider the reasonableness of the Respondent’s decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented. This is set out by the Employment Appeals Tribunal (EAT) in the case of Looney and Co Ltd v Looney UD 843/1984:

“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 Adjudication Officer is therefore to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this is the standard by which the Respondent’s actions must be judged against.

In the instant case, it was asserted that the Complainant was dismissed because he took medication, namely Xanax, while working onsite and that he should have not have done so while operating machinery. Specifically, this was contrary to the Respondent’s disciplinary policy, which stated that gross misconduct is defined as:

“unauthorised consumption of, unauthorised distribution of and/or under the influence of alcohol, chemical or other substances (drugs) (other than those medically prescribed) or….. while working for the Company” and

“A dangerous practice which is liable to affect the safety or health of self or any other person”

In making my decision on the reasonableness of the dismissal, I noted that the Respondent received advice during the investigation from their medical advisor surrounding the effects of Xanax which stated that the Complainant should not have taken two tablets within 8 hours of one another and that he was not fit to operate machinery as a result of having done so. The Complainant accepted at the disciplinary hearing that he continued to operate machinery having taken a second Xanax tablet 3.5 hours after the first one, although he stopped doing so when he felt the side effects of the medication, which was much later than the Respondent’s doctor believed he should have started noticing same.

While the Complainant’s representative stated that the Respondent’s medical advisor should have contacted the Complainant’s doctor to check the dosage of the medication and establish the time intervals over which the medication could be taken, I believe that it was reasonable of the Respondent to rely solely on the advice of their own doctor, as outlined above, and also note, crucially in my view, that the Complainant acknowledged during the disciplinary hearing that he did not read the advice on the medication, prior to deciding to take a second pill 3.5 hours after having taken the first tablet. Specifically, he stated that “humans don’t read paper inside medication” which I found to be an extraordinary assertion by someone who had also acknowledged never having previously taken two Xanax within such a short period of time since he began taking the medication in 2014. I also noted that there was no suggestion from either the Complainant or his representative at the disciplinary hearing that the Operations Manager, who chaired the hearing, should contact the Complainant’s doctor. In addition, I found it significant that the Complainant accepted in evidence at the WRC hearing that he should have informed his line manager of the extent of his illness, prior to making a decision to take the second tablet at 9 30 pm.

In light of the foregoing, I find the that the dismissal was both reasonable as well as substantively fair and must now examine if it was procedurally fair prior to making a decision on whether the Complainant was unfairly dismissed.

In examining the procedural fairness surrounding the dismissal, I note that the Complainant was afforded a full investigation of the allegations made against him, that he was given the opportunity to respond to the findings of the investigation during the disciplinary hearing, was given his full rights of appeal in respect of the dismissal and was afforded the opportunity to be accompanied by his union representative at every stage throughout the process, although he chose not to avail of this right at the investigation stage.

In light of the accumulation of the above points, I find that the dismissal was procedurally fair and also note that neither the Complainant nor his representative suggested otherwise.

While I have the utmost sympathy for the Complainant and found him to be a decent human being as well as an honest and credible witness, the decision to dismiss him, while arguably harsh and unsympathetic given his medical condition, was both substantively and procedurally fair.

I find that the Complainant was not unfairly dismissed for the reasons set out above.