INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
ALSTOM IRELAND LTD
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY TECHNICAL, ENGINEERING AND ELECTRICAL UNION)
Chairman: Mr Duffy
Employer Member: Mr Murphy
Worker Member: Mr Nash
1. Appeal of Rights Commisoner's Recommendation R-046056-Ir-06/Tb
2. The Worker was employed by the Company for over two years until his dismissal in September 2006. The Worker was dismissed for gross misconduct for an alleged breach of the Company/Union agreed procedures. This alleged breach led to the summary dismissal without notice to the Worker.
The Union contends that the level of a banned substance for which the Worker was found to have tested positive for, was of such a low percentage that the test should properly be classified as negative. The Union had testimony from an expert in the field of toxicology to back up their claim. It is also contended by the Union that no code of practice on drug and alcohol testing as required by the Collective Agreement between the parties and with reference to the Railway Safety Bill, 2005, has been adopted. The Company reject the Union's claim. It is the Company's position that the policy for testing employees for intoxicants was agreed with the Union and applied in all respects correctly. The Company also supplied an expert witness in support of its procedures. The Company seeks to have the Rights Commissioner's Recommendation sustained.
On the 20th June, 2007 the Union appealed the Rights Commissioner's Recommendation to the Labour Court in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 10th October, 2007 and the 13th December, 2007.
3. 1 The Company clearly is in breach of Clause 27 of the Company/Union Agreement as it failed to implement the terms of Part 9 of the Railway Safety Act, 2005.
2 It has been established that the sample taken from the Worker measured 8.6 ng/ml. The recommended cut off point for a positive test is 15 ng/ml. This is supported by witness evidence from the President of the European Workplace Drug Testing Society.
3 The Worker's sample was around 50% less than the recommended cut off point for a positive test. The Worker's test result was in fact negative and consequently he was wrongly accused and unfairly dismissed.
4. 1 The Worker was fairly dismissed having regard for the Company's policy on drug testing, which was agreed with the Union as part of the Collective Agreement negotiated in November, 2005.
2 The Worker is employed in a safety critical role which cannot be carried out under the influence of banned substances. The Company must ensure that its operations are governed by the strictest safety policies in line with its legal requirements.
3 All aspects of the disciplinary process were conducted in line with the principles of natural justice. The Company has a zero tolerance policy in regard to testing for intoxicants. The Company policy was agreed with the Unions as part of the Collective Agreement negotiated in 2005.
This dispute concerns the dismissal of one worker who was found to have a residue of an illegal drug in his system in the course of his employment. He had been randomly tested as part of the Company’s Drug and Alcohol at Work Policy.
It is accepted that the quantity of the Drug for which the Claimant was found to have tested positive was low. However, the Company’s policy is that where any test shows a positive result the subject of the test will be regarded as guilty of gross misconduct and treated accordingly.
The Union contends that the level of the prohibited substance found in the test was below the cut-off point generally accepted for such tests. The Union further contends that the Collective Agreement between it and the Company required that the Drug and Alcohol Policy be introduced by the Company should be in line with the relevant provisions of what was then the Railways Safety Bill 2001. This, it was submitted, requires the adoption of a Code of Practice on drug and alcohol testing in consultation with the Union. No such Code of Practice was adopted.
Drug and Alcohol Testing
The Court is conscious that drug and alcohol testing is becoming an increasingly common feature of many employments, particularly in safety critical areas. Changed societal factors, including increased drug abuse, has heightened the need, and the justification, for such testing.
The Court has consistently supported the use of drug and alcohol testing in safety critical employments. However, given the inevitable consequences for employees who test positive it is crucial that the modalities of all aspects of the testing conform to predetermined standards, which as far as possible, are agreed between the employer and the trade unions representing staff.
In this case the Court heard evidence from eminent experts in the field of toxicology and drug testing. There was disagreement between the expert witness who gave evidence on behalf of the Union and those who gave evidence on behalf of the Company on whether the disputed result should have been classified as positive or negative. This disagreement stems from a difference between the experts as to the appropriateness of making adjustments or weightings to the results in certain circumstances.
The Union’s expert witness proffered the view that international best practice in this field is set out in the European Workplace Drug Testing Society’s guidelines. She also told the Court that if these guidelines had been applied in the instant case the disputed result would have been classified as negative.
The Company’s expert witness, who analysed the test, agreed that if these guidelines had been applied to a crucial aspect of the analysis the result would not have been reported as positive.
However, he disagreed with the appropriateness of the guidelines in this aspect. He also disagreed with the assertion that these guidelines contain accepted standards for drug testing either in Europe or internationally. He was firm in his opinion that the result in this case was properly classified as positive.
The Collective Agreement
The introduction of a drug and alcohol testing policy was provided for by the Collective Agreement between the parties. That policy states, in its final paragraph, that employees will be subject to random drug and alcohol testing“in line with the Railway Safety Bill”.It was submitted on behalf of the Company that it is does not, in fact, come within the ambit of what is now the Railway Safety Act 2005. That may or may not be the case. However it is clear that the parties to the Collective Agreement (and the policy statement which was furnished to all employees) imported the provisions of that Act in so far as they are relevant to drug and alcohol testing. The provisions of that Act provide, in effect, that all aspects of a drug and alcohol policy should be the subject of consultation with organisations representing affected staff.
Decision of the Court
This case has highlighted a disagreement between the Company and the Union on a crucial aspect of the testing procedure. In the Court’s view it is imperative that this disagreement be resolved and that agreed guidelines covering the totality of the testing procedure, including the processing of results, be put in place without delay. The parties should commence discussions with that objective immediately.
The Court has given careful consideration to the position of the worker who is at the centre of this dispute. The Court is satisfied that the Company acted honestly and reasonably in dealing with what was reported to it as a positive result for a prohibited drug. The worker has at all times denied that he used the drug in question. In the Courts view, in all the circumstance s of this case, there is room for some doubt as to whether the particular result in issue should have been reported as positive or negative. In the light of the conclusion reached earlier in this Decision on the necessity for agreement on the modalities of these tests, and the recommendation that agreed guidelines be now put in place about which there can be no dubiety, the Court is of the view that the worker should be given the benefit of the doubt.
The Court has concluded that a reasonable compromise in the circumstances is for the Company to offer and for the Union to accept that the worker be re-engaged in his former position with effect from the date of this Decision. The re-engagement should be without loss of accrued service with the Company.
The appeal is to that extent allowed and the Recommendation of the Rights Commissioner is amended accordingly.
Signed on behalf of the Labour Court
18th December, 2007______________________
Enquiries concerning this Decision should be addressed to David P Noonan, Court Secretary.