Complainant

Respondent

Anonymised Parties

A Food

Worker

A Food Preparation Company.

Representatives

Mary Duffy-King of SIPTU (Retired)

Robin Hyde of Alastair Purdy and Co

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-00051784-001

19/07/2022

The issue in contention was the alleged Unfair Dismissal of the Complainant for serious breaches of the Respondent Intoxicants Policy.

The Employment had begun in November 2020 and ended on the 12th April 2022.

The Rate of Pay was stated to be € 670 Gross for a 40-hour week.

The Complainant gave an oral testimony supported by a Written Submission. His spokesperson was Ms Duffy King, retired SIPTU Official.

In essence, his case was that on the 24th February 2022 he was alleged to have been smoking an illicit substance in the Smoking Shed. This was witnessed by other staff and his presence in the Shed was visible on the Company CCTV system. Other staff members were also seen in the Shelter and some of these were also interviewed.  At approximately 18:30 that evening he was approached by Management. His locker and internal work coat were searched, and a “grinder” was found in his pocket. He was told that he would be suspended as the grinder was deemed to be “drug paraphernalia”. On the 1st March 2022, Mr F, Manager, wrote to the Complainant inviting him to an investigation meeting on the 11th March 2022. The Management in the meantime carried out a number on interviews with other staff. In the 11th March meeting, the Complainant stated that he was using a CBD Bud, a legal substance that smells like Cannabis. A Disciplinary meeting took place on the 5th April and a follow up meeting on the 11th April 2022. At this later meeting he was informed that he was being dismissed. An Appeal Hearing was held on the 29th April 2022 and the dismissal confirmed on the 25th May 2022.

In her Arguments Ms Duffy King pointed to what she called major evidential difficulties in the Employer case.

 First the CCTV footage of the Smoking Shed was never provided to the Complainant. There was no realistic explanation given as to why he had been selected to be searched. There were other staff also in the Smoking Shed at the time. The “Grinder” had disappeared – it was given to the Gardai but was now, apparently, lost. There were staff, who made anonymous allegations, that the Complainant had never been able to cross examine. It was accepted that the Employer had provided copies of all statements to the Complainant but due to “anxiety and stress” he had lost them.

Ms Duffy King cited case law and SI 146 of 2000 – Code of Practice on Disciplinary and Grievance Procedures in support to the case that the Complainat was completely denied Natura Justice and was “run out” of the Company on Unreasonable and Unwarranted Grounds. She cited Looney v Looney UD843/1984, Beachside t/the Park Hotel and Bank of Ireland v Reilly [2015] 12 IELJ 72 in support of her case regarding Natural Justice.

The Complainant was cross examined by Mr Hyde for the Respondent. He was questioned why he had remained silent regarding the CBD uses of the Grinder at the time of the Discovery and why he had waited some considerable time to volunteer/request a Urine test for Narcotics. Mr Hyde maintained that the entire response from the Complainant was evasive. The Complainant maintained that he suffered from severe anxiety issues, well known to his GP, and his reactions had to be seen in that light. CBD was perfectly legal, but this had been ignored.

Ms Duffy King also, in oral evidence, referred to a Mr Z, a possibly much more serious offender and that the Complainant had been made guilty by simple association with Mr X.  Fear and intimidation of workers and their families could not be discounted.

The Respondent gave Oral Testimony from several Managers, supported by a Written Submission. The chief Spokesperson was Mr Hyde, Solicitor of Purdy and Company.

In opening background, the Respondent explained that the Respondent was a large employer and a well-recognised food Brand in the Dublin area.  Product Food Safety was critical as was the safe operation, for all concerned, of a large plant.  Unfortunately, by 2022, it was recognised that illegal drug taking, and trading was present in the Plant. Management was faced with no option but to take whatever steps necessary to address this issue and had adopted a very vigorous “Zero Tolerance” approach to all drug related matters.

The situation was complicated by a recognised fear among staff at all levels and their families of the possibly severe negative consequences of getting on the “wrong side” of some of the drug fraternity. Staff members were prepared, none the less, to give anonymous reports/tip offs to Management.

On the 24th February 2022 at around mid-day Mr Xa, had received a Tip Off by e mail from Worker A, regarding alleged drug taking in the Smoking Shed. He had called Worker A to his office and received a report concerning the Complainant and another Worker.

At about 18:30 the Complainant was requested to undergo a search of his locker and his person. In his Work Jacket Management found a “Grinder” which smelt strongly of cannabis. Other employees were also searched, and a range of drug paraphernalia was discovered. The Complainant was verbally suspended that evening.

Manager, Mr Xb, conducted a thorough investigation and, interviewed a number of witnesses, five in total. On the 11th March 2022 an investigation interview was conducted with the Complainant. All evidence was provided to him. At this meeting the Complainant maintained that the Grinder was used for his CBD buds which were perfectly legal. He had not given this explanation at time of the initial search as he had wanted to wait for the “proper time”. Two disciplinary meetings followed, the 1st and the 11th April 2022. At the meeting of the 11th the Complainant was dismissed for being in possession of “drug paraphernalia “in breach of the Company Intoxicants Policy.  The Complainant was invited to appeal this decision and an Appeal hearing was held on the 29th April. The dismissal was upheld letter of the 25th May 2022.

The Respondent was extremely scrupulous in their procedures. Different Managers held the Investigation, Disciplinary and Appeal meetings. Representation was allowed throughout, and all evidence was shared with the Complainant. 

The Grinder had been handed over to the Gardai at an early stage but could not be retrieved by the Gardai when requested to do so. It was effectively “lost” in the Garda systems.

The Respondent summarised this case as one where the Dismissal was due to Gross Misconduct and Fair Procedures had been followed at all times. The Dismissal was “Proportionate and Reasonable”.

The context was important, the witnesses alleged that the Complainant was smoking a joint in the Smoking shed and was close to another employee who was alleged to be a well well-known drug dealer – Mr Z. This latter employee when searched was in possessing of drugs, a grinder and a digital scale. This employee was currently, at the date of the hearing, hospitalised as a result of being very seriously physically attacked outside the work environment.

The Respondent outlined their ongoing policy of Zero Tolerance of all drug related activities and previous employees had been dismissed for similar offences.

Significant case law was preferred by the Respondent in support of their position. Bank of Ireland v Reilly [2015] IEHC 241 to support the reasonableness argument and ASDA Stores Ltd v Coughlan UKEAT/0453/10 on the issue of proportionality.

The Respondent maintained that the facts were clear, the Complainant had drug paraphernalia on his person and witnesses had alleged that he was smoking a joint. The Respondent policy was absolutely clear and had been communicated to all staff on numerous occasions. It was Zero Tolerance.

In cross examination by Ms Duffy King, the absence of the Grinder and the non-sharing of the CCTV footage of the Smoking Shed were referred to. She had requested same but to no avail. The Respondent replied that the Grinder had been apparently lost by the Gardai, the CCTV had expired and the witness statements had been supplied to the Complainant. He had lost them it appeared.

Ms Duffy King maintained that the Complainat had been using a legal substance, CBD buds, for medial anxiety and unfortunately was seen in the shed with the alleged more seriously offending employee. The Complainant was unfairly dammed by association. Ms Duffy King also queried how the Staff in the Smoking Shed CCTV video had been chosen to search. The Complainant and Mr Z were only part of a wider Group, not all of whom were searched.

The Respondents replied that they had a major Food Business and all aspect of Health and Safety both in their product produced and for all employees was critical. They had a Zero Tolerance policy, well communicated to all staff. The Complaint had Drug Paraphernalia on his person and his dismissal was accordingly fair and proportionate.

3:1        Introductory remarks – Band of Reasonableness and Natural Justice.

This is a most unfortunate case. The Respondent employer is located in a part of Dublin city that has experienced significant on-going illegal drugs issues. Protection of the integrity/reputation of their food product is a critical issue as is the safety of their staff in a large industrial scale plant. The adoption of a Zero Tolerance approach towards drug use/sale on site, set out in a rigorous Intoxicants Policy is the only realistic policy to adopt.

However, this does not provide a licence to ignore, in totality, the natural justice rights of employees who may be accused of breaching the Intoxicants Policy. The very challenging balance has to be struck between what is Reasonable – the Band of Reasonableness – for an employer faced with a community wide drugs problem coming in their gate and natural justice for an individual worker.

A brief review of Legal precedents is useful

3:2        Legal Precedents

The headline case in an unfair Dismissal case has to Mr Justice Flood in Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137   where he stated that where a question of unfair dismissal is in issue, there are certain matters 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 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.”

More recently SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures has codified these Natural Justice principles into a set of guidelines.

3:3 The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated uponat length.

The former Employment Appeals Tribunal usefully summarised its approach to dismissals for “conduct” and the question of “Reasonableness” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978.

The Tribunal applies the test of “reasonableness” to

1.    the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and,

2.    whether the procedures adopted were fair and reasonable and

3.    the reasonableness of the conclusion arrived at by the Respondent.

However, all case rest on their own evidence and factual matrix and I will now examine these.

3:4         Review of the Evidence presented – Oral testimony and Written Submissions.

There was no doubt that the search of the Complainat discovered a “Grinder” which unfortunately disappeared in Garda custody. It was disputed whether it was Drugs Paraphernalia, or a perfectly legal kitchen implement for the use of legal CBD buds.

In oral evidence for Managers who conducted the initial search the stated reaction of the Complainant to the discovery was muted and almost accepting. The Manager felt that the Complainant “Accepted that he was busted”. Anonymous witness evidence, witness A and B, that could not be identified for fears of personal safety, had maintained that he was smoking “joints”.

The CBD buds medical defence did not happen until the formal Investigation meeting. Medical evidence did not feature largely from either side. The issue of offering to do a medical urine test came a few weeks later.  It is well known that Urine tests have little use after a few weeks’ time dely.

The inability for the Defence to cross examine witness A and B and the non-availability of the CCTV to the Defence were certainly not helpful to the Respondent case.  The overhang from Mr Z, the alleged Drug dealer, was also evident throughout.

The demeanour of the Complainant at the hearing was worth commenting upon. He appeared to the Adjudicator to be a very lesser player in a wider drug scene. He was effectively and by his own actions, stupidly collateral damage in the much bigger, Mr Z, scenario.

None the less Ms Duffy King legitimately pointed out that he had Natural Justice rights. To lose your employment, particularly for the Complainant is this case, was a very serious issue. Ms Duffy King was a very experienced Trade Union Official and her arguments carried considerable wight.

The Respondent employer, equally represented by a senior and experienced legal practitioner, had a major commercial and H & S issue with Drug dealing/consumption and Zero Tolerance was a critical issue. It was clear from the Oral testimony that the Respondent did not have the luxury of categorising drug use as “venial or mortal” and disciplining accordingly.

The Respondent view was that the “Band of Reasonableness” for any employer in this situation dictated a Zero Tolerance approach.

In considering an Adjudication conclusion it is worth repeating Mr Justice Flood, quoted above.

The decision of the deciding authority should be based on the balance of probabilities flowing from 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 also proper to repeat the caution that Adjudicators do not substitute themselves for Employers.

As stated above, in this case the context was crucial.

There was an illicit Drugs issue in the Community in which the Plant is based. With a large workforce it was inevitable that some of this would enter the Plant. Food Safety was absolutely critical as was Employee Physical safety.

The Respondent Employer had made it absolutely clear to all Staff that there was a Zero Tolerance Policy. The Complainant admitted to having a Grinder in his possession. He delayed the CBD bud defence until the investigation stage. This was never explained satisfactorily.

The question of the Witnesses A and B and their non cross examination by the Complainant, had to be seen in the context of the local climate of fear of harassment and worse for witnesses and their families.  This was probably compounded by the Management actions against Mr Z, an allegedly much bigger player in the overall scene.

Fair Procedures were followed. Representation was offered and all evidence, albert somewhat redacted as regards Witness A and B was shared.

Mr Justice Barrett in Boyle v An Post [2015] IEHC 589 made the comment that

“Fairness is ever required, perfection is unattainable”.

In this case the Complainant was a minor league player but the question of the “balance of probabilities”  has to be considered. He was not dismissed for Smoking Joints which was unproved but for having “Drug paraphernalia”.

In a Zero Tolerance culture his dismissal was probably somewhat harsh but was within the Band of Reasonableness for any Employer faced with the serious illegal drug situation outlined.

The Dismissal has to be found Not Unfair.

Unfair Dismissal, Reasonableness, Intoxicants Policy.