Complainant

Respondent

Anonymised Parties

A General Operative

A Food Company

Representatives

Mary Duffy-King

Robin Hyde, Alastair Purdy and Co Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00051776-001

19/07/2022

The complainant states that he has been an employee of the respondent for almost 20 years. The complainant states that on 24 February 2022 at approx. 17.45 pm, he was approached by his supervisor, Mr. W. He states that Mr. W requested him to accompany him to the training room for a “chat”. The complainant states that he was not advised as to what this “chat” was about however he did accompany Mr. W to the training room. Mr. W suggested that the complainant may want to have a witness and if he did to pick a colleague from the floor. The complainant states that he asked Mr. B, his colleague to join as a witness. Mr. D was also present in the training room. The complainant states that he was then asked to comply with a search as per company policy and although quite shocked complied with same. The complainant states that he was also shocked to see Gardai outside the training room but they did not enter.  The complainant states that he was eventually told that an allegation had been made against him.

The complainant states that he was not provided with a copy of the allegation nor was he informed as to who had made the allegation against him. The complainant states that following a search of his pockets and then a search of his locker, two items were retained by management with the complainant’s consent. The complainant states that he was then informed that he was being suspended from work on full pay and that the company would be in touch. The complainant states that he was then escorted off the premises by his witness Mr. B. The complainant states that 6 days later he received a letter dated 1 March 2022 inviting him to attend an investigation meeting on 11 March 2022. The letter stated that this investigation was in respect of items found during a search of his pockets and locker on 24 February 2022 but there was no mention of any allegation against him. The complainant states that the letter claimed that the purpose of the meeting was to address the evidence and that the complainant was expected to respond in detail. This meeting was to take place on 11 March 2022.

The complainant states that he had not received a copy of the original complaint and felt this was a totally unreasonable request. The complainant contends that there was reference in the letter to the two items retained by the company during the search on 24 February and the complainant felt he had provided the information regarding these items on the day. The complainant states that in addition he felt there was a threat to his job. He states he had no information, was provided with no documentation and was very distressed by the situation. The complainant states that it was stated that he could bring a colleague as a representative but the letter also advised that he was not to communicate with or make contact with any person from the company therefore he was perplexed as to how he could arrange such a witness.

The complainant states that a further letter dated 10 March was sent to him which outlined that an investigation had occurred conducted by Mr. F and enclosed documents relating to this investigation. The complainant states that at this juncture, he did request additional time prior to a meeting the next day as the timeframe proposed was wholly unacceptable. The complainant states that he did attend a meeting with the company on 23 March 2022 and 6 days later he received a letter regarding the notes from this meeting. The complainant states that this was the first time he had seen any such documentation. The complainant states that the original complaint and the interview notes had the individual’s name (employee who made the allegation against the complainant) redacted. The complainant submits that this completely denied him any opportunity to respond in a fair and open way to his accuser which he states that he has a right to do. The complainant states that it came to his attention that this person requested that they remain anonymous which he feels is totally unacceptable.

The complainant states that he received a letter dated 30 March 2022 attaching a copy of the investigation report and an invitation to a disciplinary hearing, the offer of a representative by a fellow employee was again made which he states is a total breach of an employee’s right to proper representation and in breach of S.I. 146. The complainant states that on 1 April he received a letter inviting him to a disciplinary hearing which was to take place on 5 April 2022. Following this, the complainant received another letter dated 7 April inviting him to attend a further meeting on 11 April where he would be informed of the outcome of the disciplinary hearing. The complainant states that he attended the meeting on 11 April and was informed that his employment was terminated. This was confirmed in writing and he was advised of the opportunity to appeal the decision within 7 days. The complainant states that he did appeal and was informed by letter that an appeal meeting would take place on 26 April with Mr. DB (Director of Sales) and again advising that he could bring a colleague as a representative. The complainant states that on 6 May, he received the outcome of his appeal which was to uphold the termination of his employment. The complainant asserts that at all stages of this investigation, the focus was on the items found in his pockets and his locker.

The complainant states that at no time was the issue of the original complaint part of the investigation or the disciplinary process. The complainant states that at no stage had he the opportunity to address his accuser nor did he have any chance to speak to the witnesses who made statements. The complainant states that these statements with the exception of the original complaint were all made by those present on the day of the search of the complainant’s person and locker including the person selected by the complainant to act as witness. The complainant states that the statement from the original accuser was redacted so as to hide her identity. The complainant also states there is an issue of the use of the CCTV footage in this matter where Mr. W clearly states he had returned to the premises at the request of Mr. F and Mr. Y and had viewed the CCTV footage. The complainant states that this is against all principles of CCTV usage pursuant to the Data Protection legislation. The complainant asserts that he was not informed regarding the use of CCTV nor was he advised of the purpose of using the CCTV nor did he have the chance to view the CCTV.

The complainant submits that he has been unfairly dismissed and was not afforded his right to fair procedures pursuant to S.I. 146/2000. He states he was not afforded the right to face his accuser and was given no opportunity to speak to witnesses. The complainant further states that he was not allowed his right to proper and informed representation. It was submitted that the use of CCTV in the within instance by the respondent was unlawful as it was processed in a manner which brought about his dismissal. In this regard the complainant cites the caselaw of Looney v Looney UD83/1984. The complainant also cites the case of Patricia Heffernan v Dunnes Stores where it stated the onus is on the employer to keep staff updated and remind them of what is expected of them in the workplace through staff meetings, circulars and notifications on staff notice boards. The complainant states that the respondent does not hold regular staff meetings nor do they provide updates but rather place memos on notice boards after the event or when the horse has bolted.

The complainant states that he has almost 20 years’ service with the respondent and states that it is many years since he read the staff handbook. He asserts that it was a somewhat different handbook at the time he was employed. The complainant states that he did not believe that he had done anything wrong; he states that he had broken his last few cigarettes by sitting on them and as he often used tobacco to roll his own cigarettes, to save money he thought nothing of using the tobacco from his broken cigarettes to roll one on his break in the smoking shed. The complainant asserts that he was more than surprised to be called by Mr. W for a chat, some three hours after his break. In support of his case, the complainant cites the caselew in Beachside Co. Ltd t/a The Park Hotel Kenmare and Irish Rail v Fergal Brennan which highlights that fair and proper procedures are followed prior to a dismissal. The complainant also highlights the case in Governor and Company of Bank of Ireland v James Reilly in support of his case.

The complainant states that he was suspended from his work when he posed no risk to anyone. He feels that suspension was simply a mechanism from removing him for site and keeping him from site. The complainant states that had he been asked not to roll cigarettes in the smoking shed, he would have complied. He asserts that under no circumstances would he put his job of 20 years at risk by using any form of illegal substance in the workplace. The complainant submits that one cannot help but wonder if a dismissal by any means was on the cards given the numerous dismissals in the recent past of employees with long service in the respondent company.         

The respondent states that the complainant commenced employment with the company on 1 June 2003 as a general operative. The respondent states that on 11 April 2022, the complainant’s employment was terminated on the grounds of gross misconduct for having breached the respondent’s Intoxicant’s Policy for being in possession of drugs paraphernalia.

The respondent states that on 24 February 2022, Mr. Y (Director of Operations) received an e-mail from an employee named A. Within this communication, A outlined concerns about alleged drug taking onsite by a number of employees at the smoking shed. Upon receipt of this communication, Mr. Y requested that A call to his office to discuss their concerns. During this conversation, A alleged that the complainant sat opposite them in the smoking shed and prepared cannabis in a grinder, rolled a “joint” and then smoked it. A stated there was a very strong smell upon the complainant igniting the “joint”. Within this allegation, various other employees were also suspected of smoking cannabis. The respondent states that following this conversation with A, Mr. Y liaised with Mr. D (Health and Safety Manager), Mr. W (Supervisor) and Mr. D (Financial Controller) and asked them to assist with a search of the complainant’s locker and person. In the meantime, Mr. Y also contacted the local Garda station and asked that they attend on site and assist with the search. The respondent states that members of An Garda Siochana did attend the site but did not assist with the search.

The respondent states that around 18.00 that same date, Mr. W and Mr. D carried out the search of the complainant’s person and locker. Upon conducting the search, they found a grinder with a plant emblem on its top and a residue inside it, which smelt strongly of cannabis. They also found a small digital scales in the complainant’s locker and plastic water bottles filled with white tablets (although these were not confiscated). The respondent states that following this, the complainant was notified verbally that he was to be suspended pending the outcome of a formal investigation into the matter. The respondent states that other searches of the other employees were conducted and in turn also produced various drug paraphernalia.  It was submitted that on the 25 February 2022, Mr. Y brought all paraphernalia that were found during these searches to the local Garda station. The respondent states that on 1 March 2022, Mr. F wrote to the complainant inviting him to an investigation meeting scheduled for the 9 March 2022. Within the correspondence, the complainant was notified that the search was conducted in accordance with the respondent’s Intoxicants Policy. The complainant was advised that the purpose of the investigation was to discuss the allegation that the complainant was in possession of “drug paraphernalia”. Mr. F provided the complainant with copies of all relevant policies and informed him of the right to representation.  It was submitted that the complainant was advised that the investigation was to form part of the overall disciplinary process and if the investigator found that there was a case to answer, the matter may proceed to a disciplinary hearing and that due to the severity of the allegation, it may constitute gross misconduct and may lead to a range of sanctions, up to and including termination of his employment.

The respondent submits that on 10 March 2022, Mr. F wrote to the complainant regarding the ongoing investigation, furnishing the complainant with various pieces of evidence that was to be relied upon by the investigator in advance of their meeting scheduled for the 11 March, including the initial complaint, witness statements, incident reports and photographs of the paraphernalia. The respondent states that this meeting was later cancelled and rescheduled for the 25 March at the request of the complainant so as to allow him more time to consider the evidence before him. It was submitted that on the 25 March 2022, the investigation meeting was held. The complainant was accompanied by Mr. B as his representative (another employee subject to similar allegations at the time). The respondent states that during the meeting, the complainant denied he was smoking an illegal substance. He also claimed the grinder was used to “roll a cigarette” which required the complainant to break a cigarette and roll them again. The respondent states that the complainant went on to explain that the weighing scales was used for fishing equipment and that it was just in his bag. The respondent further states that the complainant claimed the large container of tablets was for personal use. The respondent states that when asked to provide a prescription for this, the complainant said they were not prescribed as they were over the counter tablets (Lyrica and Paracetamol). The respondent states that the complainant was provided with a copy of the meeting minutes on the 28 March 2022.

The respondent states that on the 30 March 2022, Mr. F wrote to the complainant confirming the conclusion of the investigation process. Within this correspondence the investigation report was furnished to the complainant. The respondent submits that in accordance with his conclusion, Mr. F noted the following facts, “the search was conducted as a result of alleged illegal activity, as a result of the search, drug paraphernalia was discovered in the form of a “grinder” and “weighing scales” and that the “possession of drug paraphernalia is a breach” of the company’s Intoxicants Policy. Mr. F confirmed that the matter was to be referred to a disciplinary meeting and he was to remain suspended pending the outcome of said meeting. It was submitted that on the 1 April 2022, following completion of the investigation, the complainant was invited to a disciplinary meeting scheduled for the 5 April to be conducted by Mr. B (Pan Plant Manager). The respondent states that the complainant was advised of his right to representation prior to the meeting. At the meeting, the complainant was accompanied his colleague Mr. B as his representative. (This employee was subject to similar allegations at that juncture). It was submitted that throughout the meeting, the complainant rejected the notion that the items constituted drug paraphernalia. He also stated that he was not happy with the meeting and was seeking legal advice. Nothing further was discussed.

The respondent states that on 7 April 2022, the complainant was invited to a disciplinary outcome meeting scheduled for the 11 April and again, the complainant was informed of his right to representation. It was submitted that during this meeting, the complainant was informed that upon consideration of the facts, he was deemed to have breached the company’s Intoxicants Policy and the decision was made to terminate his employment with effect from the 11 April 2022. The respondent states that the complainant was notified of his right to appeal the decision. The respondent states that on the 14 April 2022, the complainant wrote to the respondent exercising his right of appeal. Within his notice of appeal, the complainant disputed the allegation that he breached the Intoxicants Policy claiming that he was neither under the influence nor in possession of an intoxicant onsite. The respondent states that on 26 April 2022, the complainant’s appeal was heard by Mr. DB (Director of Sales). During the appeal, the complainant noted that he had not been in trouble during the course of his tenure with the company and that the items found, were not used for the purposes of drugs.

The respondent states that on 6 May 2022, Mr. DB issued his decision. In upholding the decision to terminate on the grounds of misconduct, Mr. DB noted the following: “The allegations against you concerned a breach of the intoxicants policy for being in possession of drug paraphernalia. The allegation itself did not deem you to be under the influence at the time you were found in possession of the items. The intoxicants policy provides for the following “the sale, use, purchase, transfer or possession of an illegal drug or drug paraphernalia. Critically during the appeal meeting you offered little evidence as to why these items were in your possession in the first instance and what alternative uses they had.  In my view you failed to provide an adequate rebuttal as to why the paraphernalia was in your possession. Furthermore, there was witness evidence to suggest that you were earlier that day consuming drugs on site whilst at work. Whilst we accept that the allegation does not concern whether you were intoxicated at the time, this evidence infers why the drug paraphernalia was in your possession. As such on the balance of probability, I have determined that the items in your possession were drugs paraphernalia. In respect of your disciplinary record, whilst you have no existing disciplinary warnings on your file, given the nature of the breaches involved, such behaviour is correctly categorised as gross misconduct and as such, you may be terminated at the first instance regardless of your record to date.”

The respondent submits that it fairly terminated the complainant’s employment having correctly categorised his behaviour as gross misconduct.  The respondent submits that it is aware that under Section 6(7) of the UDA when deciding if a dismissal is fair, regard may be had to the reasonableness of the employer. The respondent, therefore, accepts that they have to behave as any other reasonable employer would have done in the circumstance. It was submitted that the reasonableness test was recently examined in Permanent TSB PLC v Christopher Callan UD/18/227 whereby the Labour Court in its deliberations noted the decision in Noritake Ltd v Kenna (UD 88/1983): Did the company believe that the employee misconducted himself as alleged? If so, did the company have reasonable grounds to sustain that belief? If so, was the penalty of dismissal proportionate to the alleged misconduct?  It is, therefore, an objective test. It is a test of what a reasonable and prudent employer would have done in the circumstances. The respondent states that the function of the adjudication officer is not to assume the role of the employer. His/her function is to decide whether within a band of reasonableness the decision was fair or unfair. Within a band of reasonableness, some employers may decide to terminate, and some may not, dismissal is only unfair if no employer would have dismissed within that band. The respondent states that this position was reaffirmed in Bank of Ireland v Reilly [2015] IEHC 241 whereby Noonan J in discussing the merits of Section 6 (7) of the UDA, endorsed the following view: “That is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.  It was submitted that in cases where a dismissal involves gross misconduct, the former EAT has set out the appropriate test to be applied in such circumstances. In O’Riordan v. Great Southern Hotels [UD1469-2003] the EAT stated the following: “In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt 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.”  It was submitted that Section 6(6) of the UDA is clear in that it states that it is up to the employer to show that the dismissal: “6(6) resulted wholly or mainly from one or more of the matters specified in subsection 4 of this section or that there were other substantial grounds justifying the dismissal.”  It was submitted that the word “wholly” suggests that the reason to dismiss must have arisen wholly or mainly from one of the matters outlined in Section 6 (4) of the UDA.

The respondent states that in this instance, the complainant’s dismissal arises by virtue of his conduct as per Section 6 (4) (b) UDA. The respondent states that there can be no dispute as to the reason that gave rise to the dismissal of the complainant in this instance. The respondent states that its Intoxicants Policy is clear insofar as, where an employee is in possession of drugs or “drug paraphernalia”, such conduct shall be treated as gross and shall be subject to disciplinary action, up to dismissal. It is the respondent’s submission that the complainant was aware at all times of the fact as the respondent policy on this matter as it had been communicated to staff on a number of occasions due to previous onsite incidents in the past. It is the respondent’s submission that the decision to dismiss was in fact proportionate having regard to the context of the matter; in that the respondent operates in a highly regulated food industry where food safety and hygiene is at all times deemed an absolute priority amongst all members of staff. Therefore, any conduct which potentially jeopardises this position, in turn jeopardises the business as a whole and is therefore required to be treated with the utmost severity. The respondent states that it is important to also stress that the company has treated similar incidents in the past with parity, adopting a zero tolerance approach where the Intoxicant’s policy is concerned.

The respondent states that the term “Intoxicants” is defined as including “alcohol, prescribed drugs and other medications and treatments, in addition to illegal and illicit substances.”  The respondent “seeks to prevent the use, abuse, possession, sale, dispensing and distribution of intoxicants and drugs paraphernalia”. Where an employee engages in any such behaviour (whether intoxicated or in possession of drug paraphernalia), such conduct is considered “to be gross misconduct and will result in disciplinary action up to and including dismissal.” The respondent maintains that it is permitted to conduct searches where there is “reasonable cause”. Notwithstanding the respondent’s internal stance on the use or possession of drug paraphernalia, it refers to a number of cases on this subject matter: In Sales Assistant v A Retailer, ADJ-00018048, a case which concerned possession of drugs during the course of employment, the adjudication officer relied upon the fact the employer in this instance had a clear policy on possession and the fact that said policy provided for “summary dismissal”. In deeming the dismissal to be fair, the AO noted the following: “While the respondents handbook does cover the use of illegal substances off the company premises as conduct justifying summary dismissal and the allegations included this issue, the core reason for the dismissal of the complainant was for the possession of an illegal substance on the respondent’s premises… The complainant committed an illegal act which breached company procedures, put the public at potential risk and the sanction for the act was set out in the respondents written policies of grounds justifying summary dismissal. The bond of trust has been broken between the parties and I find that the respondent acted within “the bands of reasonableness” in this case and the claim for unfair dismissal is not well founded based on the above.”

The respondent states that in Asda Stores Limited v Coughlan UKEAT/0453/10, the Tribunal held the following determination: “Dismissal for this single act of gross misconduct involving the acquisition and possession of unlawful drugs on the respondent’s premises plainly and unarguably fell within the range of reasonable responses, there being no suggestion of any procedural failings on the part of the respondent, notwithstanding the personal mitigation which was advanced on the claimant’s behalf.” In Serikovs v Litec Moulding Limited UD525/2015, the EAT rejected the complainant’s claim for unfair dismissal in circumstances where he had been dismissed on grounds of gross misconduct when he presented to work intoxicated. In their decision, the EAT accepted the employer’s arguments that it had a duty of care to ensure that the health, safety and welfare of all its employees is not comprised. Significantly, the EAT placed particular emphasis on the rules contained in the employer’s employee handbook covering the grounds which gave rise to the dismissal on the basis of gross misconduct and termination was a likely sanction in such circumstances.  To that end, the respondent submits that the decision to dismiss was within the band of reasonableness and proportionate having regard to the facts before the respondent at the time of the decision, their internal policy, the nature of the industry, and their consistent zero tolerance approach.

The respondent states that in determining whether or not an employer has complied with the employee’s right to fair procedures, in accordance with Section 6(7) (b) of the Unfair Dismissals Acts, regard is to be had to S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) 7 Order, 2000. Notwithstanding the general principles set out under the foregoing S.I, the respondent submits that the complainant was afforded his right to fair procedures and natural justice throughout the disciplinary process. It is apparent and in line with the principles set down in SI 146/2000, that the respondent, carried out a sufficiently detailed disciplinary and investigation process, with particular regard to the following points: An investigation was facilitated by the respondent to afford the complainant an opportunity to respond to the allegations before him; the complainant was suspended with pay pending the outcome of the investigation and disciplinary process; the facts surrounding the allegations were thoroughly investigated – the complainant was permitted an opportunity to respond to the allegation; the complainant was furnished with all relevant documentation prior to any meeting and was put on notice of said complaints in advance of same; the complainant was afforded an opportunity to present and rebut the allegations before him; the complainant was made aware of the severity of the breach (i.e. if proven, same would constitute gross misconduct) and that disciplinary action may include termination of his employment; each stage of the process was conducted by a different person (investigation- disciplinary); the complainant was afforded the right of representation at each stage of the disciplinary process; the complainant was provided with an opportunity to appeal the decision.

The respondent states that the complainant’s right under Section 6 (7) (b) was strictly adhered to, but if the adjudicator deems there to be a procedural omission by the respondent, it states that such is not fatal in circumstances where the respondent behaved responsibly in response to the complainant’s conduct. The respondent states that there is an overall duty on the complainant to mitigate his loss. This is provided for in UDA which provides that in determining the amount of compensation regard must be had to: “(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.”  In case ADJ 16112 the Adjudication Officer set out the decision of the Employment Appeals Tribunal in the case of Sheehan v Continental Administration Co Limited UD 858/1999 where it was 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.” The respondent states that the Adjudication Officer pointed out that there is a legal duty on employees to mitigate their financial loss by taking diligent steps to secure comparable alternative employment.

The respondent states that notwithstanding and without prejudice to the fact that it is submitted that the complainant was fairly dismissed, it is further submitted that the complainant is put on full proof that he has mitigated his loss. The respondent states that section 7 (2) (a) of the Unfair Dismissals Acts states that: 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: 7.2.1 (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, 7.2.2 (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. Whilst the respondent submits that this was a fair dismissal, if the contrary is held to be the case the matter of contribution on the complainant’s part falls to be considered and in this regard the respondent respectfully submits this to be in the order of 100%.

Under the Unfair Dismissals Act, it states at section 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.

In the case of Looney v Looney, UD83/1984, the EAT referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 states that “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved.”

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances. The EAT also highlighted in Gearon v Dunnes Stores Ltd, UD367/1988 that the complainant in that case had an entitlement to have her submissions “listened to and evaluated”.

In relation to the issue of “Procedural v Substantive Justice”, in Redmond’s Dismissal Law in Ireland it notes “Procedural defects will not make a dismissal automatically unfair……An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee”.

In the within matter, the complainant was dismissed on grounds of gross misconduct for a breach of the respondent’s intoxicants policy. The intoxicants policy provides for the following “the sale, use, purchase, transfer or possession of an illegal drug or drug paraphernalia”. The policy further states that where an employee engages in any such behaviour (whether intoxicated or in possession of drug paraphernalia), such conduct is considered “to be gross misconduct and will result in disciplinary action up to and including dismissal.” The respondent further states that it is permitted to conduct searches where there is “reasonable cause” in line with company policy.

The complainant stated that the process was flawed as he was not initially provided with a copy of the allegation by the anonymous source and was not informed as to who made the allegation against him. The complainant further states that the respondent was in breach of their CCTV  procedures, in that, the complainant was not informed regarding the use of CCTV.  In the case of Shortt v Royal Liver Assurance Ltd [2008] IEHC332 the High Court held that,

"the authorities ... make it clear that, while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee's employment and the circumstances surrounding the disciplinary action…The important point is that the decision-maker must not act in such a way as to imperil a fair hearing or a fair result”.

I find that the respondent had suspicions following the anonymous source reporting the issue of drug use in the smoking shed but that the issue that invoked the disciplinary related to the fact that after conducting a search on the complainant, he was found to be in possession of drug paraphernalia which was a serious breach of the respondent’s intoxicants policy. I note that the respondent stated that the complainant was not informed as to person who made the allegation against him on the basis of that employee’s safety.

In all of the circumstances and having regard to the foregoing, I find that the actions of the respondent in the within case did not serve to imperil the complainant’s right to a fair hearing.

I am satisfied that the complainant was made aware of the severity of the breach and that disciplinary action may include termination of his employment. I note that each stage of the process was conducted by a different person (investigation through to disciplinary). The complainant was afforded the right of representation at each stage of the disciplinary process. The complainant was provided with an opportunity to appeal the decision to terminate his employment.

Having examined the manner in which the respondent conducted the process, I find that the procedures adopted fell within the requirements of a fair process at all stages.

I am cognisant from the evidence given that the respondent operates in a highly regulated food industry where food safety and hygiene is of paramount importance.  I am satisfied that given the serious nature of the breach, the bond of trust had been broken between the parties.

The test to determine the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. approved the following passage,

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

Having heard all the evidence and examined all of the written documentation submitted, I find that the respondent’s decision to dismiss was within “the bands of reasonableness” and was proportionate. Consequently, I find that the within claim for unfair dismissal is not well founded.

I consider that the within claim is not well founded. I find that the complainant was not unfairly dismissed.      

Unfair Dismissal