ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003564
Complaint(s)/Dispute(s) for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 15/09/2016
Workplace Relations Commission Adjudication Officer: Peter O'Brien
In accordance with Section 41 of the Workplace Relations Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Attendance at Hearing:
A Meat Processing Plant
Complainant’s Submission and Presentation:
The Complainant’s Representative made a verbal submission. The Complainant was employed from March 2013 to March 2016 when he was unfairly dismissed. A urine sample was taken and some unlawful substance was shown in the results. However, other staff also had similar results when tested merely received a warning. It is believed that the real reason for dismissal was due to the complaints made to the company in relation to an occupational type injury received by the Complainant while working for the company. In particular, the company was made aware of a back injury sustained while in employment with the company. Other complications arose from the type of work carried out for the company such as passing of blood and extreme pain at night. A notable back scar also formed following a hook which fell while at work. The company was unhappy that these complaints were being made and so dismissed the Complainant following a drugs test. The Complainant took the drugs during the Christmas period and it stayed in his system. The Complainant does not drink and took the drug during his own time off. He earns a weekly wage of 360 Euros. His job involves pulling carcases through the plant and lifting heavy weights. He was no safety risk to himself or others. He was never reprimanded before. He is on job seekers allowance. He was not paid for 9 weeks. He had complained to his work about work practices and this could be the intent behind the company’s actions. The speed at which he was dismissed was very quick.
Respondent’s Submission and Presentation:
The Complainants employment was terminated on March 15th 2016, following a thorough procedure. The nature of the Respondents work, a meat processing plant, involves the use of knives and several items of equipment that require training and focus. It is due to this and the Respondents obligations under the Health and Safety legislation that all employees are fully inducted at the commencement of employment with the policies of the Respondent. One such policy is the drug and alcohol policy, which cites zero tolerance to the presence of any substance detected in any employee, because the consequences could be fatal in the type of work environment the Respondent’s employees work. The Complainant was made aware and signed this policy and all employees were updated on December 18th 2014 about the seriousness which the Respondent took this policy.
On February 22nd 2016 random drug testing of employees occurred which resulted in a positive finding of Cannabinoids in the system of the Complainant. A copy of the test analysis was provided. The “cut off concentration” allowable is 15 ng/ml and the Complainant results were 52.89ng/ml. This was three times in excess of the limits. The Complainant was called to a meeting on March 4th 2016 and informed of the findings. He admitted to the taking of the substance but that it was done on his own time. A full investigation followed and the Complainant was afforded the right to representation at all times. He was offered the right of appeal which he did not take up. The Respondent notes that the Safety, Health and Welfare at Work Act 2005 places an onus on an employee to ensure they are not under the influence of an intoxicant to the extent that they may endanger themselves to another employee.
With regard to the claim that the Respondent dismissed the complaint because of the personal injury claims this is not logical as the Complainant had an ankle injury at work in May 2015 and submitted a medical certificate about his back in September 2015. It is illogical as to why the Respondent would then wait to test until February 2016 if they had the intent of dismissing the Complainant because of his injury claim.
Taking the above into account, it is quite clear that the Respondent, in line with it’s policy of which the complainant was aware, duly dismissed the Complainant for the heavy presence of drugs in his system while in the work place. Due to the nature of the work involved, the penalty of dismissal is proportionate and any other stance taken by the Respondent would not only reverse the effect of “zero” tolerance policy but could potentially have fatal consequences in the workplace. Inthis regard, we believe that the dismissal was fair and that the complaint by the Complainant should fail.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 6 of the Unfair Dismissals Act 1977 states the following;
.”(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
(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:
(a) the employee's membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,
(b) the religious or political opinions of the employee,
(c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,
(d) criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness,
(e) the race or colour of the employee,
(f) the pregnancy of the employee or matters connected therewith, unless—
(i) the employee was unable, by reason of the pregnancy or matters connected therewith—
(I) to do adequately the work for which she was employed, or
(II) to continue to do such work without contravention by her or her employer of a provision of a statute or instrument made under statute, and
(ii) (I) there was not, at the time of the dismissal, any other employment with her employer that was suitable for her and in relation to which there was a vacancy, or
(II) the employee refused an offer by her employer of alternative employment on terms and conditions corresponding to those of the employment to which the dismissal related, being an offer made so as to enable her to be retained in the employment of her employer notwithstanding pregnancy.”
The Respondent had in place a Drugs Policy, Section 7.8 of the Company Handbook which stated “ Alcohol and drugs can seriously affect your performance at work, making you a danger to yourself and others. The Company follow strict disciplinary guidelines in relation to any employee under the influence of alcohol or drugs. The Company at all times reserves the right to randomly or otherwise ask any employee to submit themselves to a drug and/or alcohol test. Failure or refusal to attend such test will result in the disciplinary procedure being invoked up to and including termination of employment“.
The Complainant failed a Drug test on February 22nd 2016 with three times the allowed limits of Cannabinoids in his system. The Complainant was aware of the Company policy on drugs and a copy of this policy was given to him in his own language and he signed and accepted for it. All staff were further notified in December 2014 of the company zero tolerance policy on drugs. The tests were carried out on a large number of employees and a number were dismissed who failed the test, therefore, the Complainants case that he was being victimised under section 2.c for bringing civil proceedings does not hold water and there is no specific evidence to justify that claim
According to the U.S. National Institute of Drug Abuse “Synthetic cannabinoids act on the same brain cell receptors as delta-9-tetrahydrocannabinol (THC), the mind-altering ingredient in marijuana. So far, there have been few scientific studies of the effects of synthetic cannabinoids on the human brain, but researchers do know that some of them bind more strongly than marijuana to the cell receptors affected by THC, and may produce much stronger effects. The resulting health effects can be unpredictable. Because the chemical composition of many synthetic cannabinoid products is unknown and may change from batch to batch, these products are likely to contain substances that cause dramatically different effects than the user might expect.
Synthetic cannabinoid users report some effects similar to those produced by marijuana:
- elevated mood
- altered perception—awareness of surrounding objects and conditions
- symptoms of psychosis—delusional or disordered thinking detached from reality
Psychotic effects include:
- extreme anxiety
- paranoia—extreme and unreasonable distrust of others
- hallucinations—sensations and images that seem real though they are not
People who have used synthetic cannabinoids and have been taken to emergency rooms have shown severe effects including:
- rapid heart rate
- violent behavior
- suicidal thoughts
Synthetic cannabinoids can also raise blood pressure and cause reduced blood supply to the heart, as well as kidney damage and seizures. Use of these drugs is associated with a rising number of deaths”.
The Respondent conducted a drug test which it is allowed to do under its company policy, the Complainant failed that test, the consequences of an employee failing the test were well documented, an investigation followed and the Complainant had the right to representation at all times and he choose not to internally appeal the dismissal decision. When questioned as to the last time he took the drugs before the test, the Complainant, with the help and my strict instructions to an Interpreter to ensure the Complainant understood my question, stated he took drugs a week or so before the test. This did not sit with the prior evidence in the case and showed the Complainant to be using drugs well beyond the Christmas period and close to the date of the test.
I am of the view that the effects of using cannabinoids are a serious safety risk, based on the effects described above, to an individual and to those working around him, especially in the Respondents particular plant environment with knives and dangerous objects available . For these reasons I feel that the Respondent had substantive grounds under Section 6.1 of the Act to dismiss the Complainant as he was in serious breach of company policy and as to not do so would have put him and his colleagues safety at risk due to the possible side effects of using cannabinoids. The Complainants case for unfair dismissal is not well founded as a result.
Dated: 7TH December 2016