SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
A COMMERCIAL STATE BODY
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Marie
Worker Member: Ms Treacy
1. Appeal Of Adjudication Officer Decision No: ADJ-00003033 CA-00004101-001.
2. The Employer appealed the decision of the Adjudication Officer to the Labour Court on 15th March 2017in accordance with Section 9 (1) of the Unfair Dismissals Acts, 1977 to 2015. A Labour Court hearing took place on 1st February 2018. The following is the Court's determination:
This is an appeal by a Commercial State Body against the Decision of an Adjudication Officer ADJ-00003033, CA-00004101-001 under the Unfair Dismissals Acts 1977 – 2015 (the Acts) in a claim made by a Security Employee against his former employer. By Decision dated 1stMarch 2017, the Adjudication Officer held that the complaint was well-founded and awarded re-instatement.
For ease of reference the parties are given the same designation as they had at first instance. Hence the Security Employee will be referred to as “the Complainant” and the Commercial State Body, will be referred to as “the Respondent”.
The Complainant referred his case to the Workplace Relations Commission on 27thApril 2016. On 15th March 2017, the Respondent appealed the Adjudication Officer’s Decision. The appeal came before the Court on 1stFebruary 2018.
The Complainant was employed as a Search Unit Officer by the Respondent from 27th August 2001 until his dismissal on 19th February 2016. He was initially employed as a Catering Assistant and was transferred to the Search Unit in 2007. He was paid €718.71 per week.The role of a Search Unit Officer involves inspection and screening of people and baggage in order to prevent the passage of prohibited items into a sterile (secure) area of the infrastructure. Search Unit Officers have responsibility to prevent 'prohibited items' from passing through the security layer, and if they come across an illegal drug or suspicious substance in their search for the prohibited items, they are obliged to report it to the civil authorities.
The Respondent is a commercial state body with over 260 employees. It is highly regulated and stringently audited environment where security is governed by EU Regulations.
On 18th January 2016 the Respondent had a meeting with the Complainant to discuss performance and behavioural standards at work. At the meeting the Complainant reported that he had been suffering from lower back pain and he agreed to undergo a medical assessment, including a drug test with the Respondent's independent medical services provider. The assessment took place on 26th January 2016. A copy of the medical report was issued to the Respondent on 4th February 2016, which deemed him fit to return to work from the perspective of his musculoskeletal complaint, it also informed the Respondent of the presence of an illegal drug (cannabis) in his system. On 6th February 2016 the Complainant was suspended from work, with full pay, He attended a disciplinary meeting with management on 8th February 2016, conducted by Mr E, Human Resources Manager and Mr F, Chief Officer - Security. The Complainant was accompanied by his union representative.
The Complainant and his union representative attended a follow-up disciplinary meeting on 15th February 2016. At this meeting the Complainant informed management of his opinion on the use of cannabis for medicinal use and his intent to continue to use the drug.
By letter dated 18th February2016 the Complainant was informed of the Respondent’s decision to dismiss him on the grounds of gross misconduct, with immediate effect. The reasons given for the dismissal were as follows: -
- •his support for the use of cannabis for medicinal use;
•his role as a Search Unit Officer involved the use of technical equipment and image interpretation screens that monitor the public’s bags;
•his role also involved the sensitive area of personal searches;
•lack of trust in him to fulfil his duties to the required level;
•his passionate advocacy of an illegal drug and his declared position as a cannabis activist;
•his continuing use of the drug had compromised his role as a security agent; and
•lack of commitment from him to reduce or cease use of cannabis.
The letter stated that the Respondent considered the option of transferring him to another area but decided that that was not a reasonable solution.
The Complainant was offered the right of appeal, which he later invoked. An appeal hearing was held on 4th March 2016. The Complainant was accompanied by his union representative and a union branch official. The Respondent’s Operations Director and Group HR Director were in attendance. The grounds of the appeal put forward by the Complainant were as follows: -
- •his performance was always above average and he had no disciplinary record;
•his security work was never compromised by any activity outside of work;
•he appealed to the Respondent to facilitate him to enter a drug rehabilitation programme and to deploy him to any other area of work while on the program.
By letter dated 9th March 2016 the Complainant was informed that his appeal was not upheld. The Respondent gave the following reasons: -
- •the grounds of his appeal did not ease the concerns of the Respondent regarding his behaviour at work;
•he placed the blame for his irrational behaviour on the work environment and his supervisor;
•the loss of trust by the Respondent in his ability to perform his duties;
•his security critical role was compromised;
•he had not commenced a drug rehabilitation programme despite his stated intention to do so as set out in his letter of appeal nor did he have details of any such programme at the appeal hearing and did he accept that a drugs rehabilitation programme was a viable course of action for him.
Summary of the Respondent’s Position
Ms Nicola Harkin Solicitor, Ibec, on behalf of the Respondent submitted that substantial grounds existed to justify the Complainant’s dismissal. The Complainant was dismissed by the Respondent for gross misconduct, for his continuing procurement and use of an illegal drug and the conflict between his advocacy of that illegal drug and his role as a Search Unit Officer. She contended the fact that the Complainant had failed a drug test and admitted to the use of an illegal drug to the doctor during the medical assessment was testimony to that assertion. Ms Harkin stated that the reason for the medical assessment was because of the Respondent’s concern regarding the Complainant’s behavioural standards at work.She said that the drug test failure raised the concern of management, the Respondent no longer had trust in the Complainant to fulfil his duties to the required level, given the fact that questions arose in the context of its “Substance Abuse Policy” and the safety sensitive context of the Complainant's employment in the Search Unit.
Substance Abuse Policy:The Policy strictly prohibits the possession, use or supply of illicit drugs. It states that refusal to attend medical examination or refusal to consent to the Human Resource Department being advised of the results of the medical examination could lead to disciplinary action up to and including dismissal. It provides the right to search employees/their property. Furthermore, it provides for the screening of employees to determine if there is a presence of intoxicants in the body, which may lead to disciplinary up to and including dismissal. The Policy provides specific provision for the screening of employees in safety sensitive positions, which include security operations.
Ms. Harkin said that at no point in the disciplinary process did the Complainant concede that he had a problem or difficulty with an illegal drug and in fact, the Complainant could see nothing wrong with this behaviour. She said that the grounds put forward by the Complainant for the appeal included a request to be facilitated to enter a drug rehabilitation programme and to deploy him in another area of work while on the programme, however, this did not ease the concern of the Respondent regarding his behaviour at work or, the loss of trust by the Respondent in his ability to perform his duties in the Search Unit. This had the potential to result in a security-critical role being compromised. However, Ms Harkin said that while he sought rehabilitation in the grounds of his appeal set out in letter dated 26thFeburary 2016, at no point in the appeal hearing itself did the Complainant indicate a willingness to enter into a rehabilitation programme, instead he continued to focus on an individual's inherent right to use cannabis. Furthermore, the Complainant continued to claim that he was being punished for his political views.At no point in the process did the Complainant personally accept that he had any problem with the consumption of an illegal drug, cannabis, or that his role as a Search Unit Officer could be compromised, or his judgement impaired, by same.Ms Harkin said that the Complainant failed to take any steps towards a rehabilitation programme, despite being encouraged to engage with the Employee Assistance Programme on three occasions.
As a reasonable employer with extensive obligations to ensure security, the Respondent was left with no alternative but to remove the Complainant from his employment as it was mindful of its duty of care to him, to fellow employees and members of the public.
Ms Harkin said that the Respondent's Disciplinary Procedure is very clear. Under the heading “Gross Misconduct” it states: -
"Gross orserious misconduct is regarded as misconduct of such a nature that it may fundamentally breach the contractual relationship between the Company and the employee and may justify the Company in no longer accepting the continued presence of the employee at the place of work".
- "It is not for the Tribunal to seek to establish the guilt or innocence of the Complainant, nor is it for the Tribunal to indicate or consider whether we,in the employer's position, would have acted as he did in his investigation,or concluded as he did or decided as he did,as to do so would substitute our mind and decision for that of the employer.Ourresponsibility is to consider against the facts what a reasonable employerin the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer's action and decision be judged."
Without prejudice to the Respondent's position that the dismissal was fair, Ms Harkin submitted that the Adjudication Officer’s award of re-instatement was unreasonable and was not an appropriate remedy in the circumstances.
Ms Harkin said that the actions of the Complainant destroyed the Respondent's trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. In support of that position he cited the Employment Appeals Tribunal casesKnox Hotel and Resort t.td, UD 27/2004,where the Tribunal stated
- [The Complainant's actions] “destroyed the respondent's trust and confidence in the Complainant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal"
In the alternative and without prejudice to this position, the Respondent contends that the actions of the Complainant contributed fully to his dismissal and submitted that the Complainant was not entitled to seek any redress under the Acts.
Summary of the Complainant’s Case
Mr Paul Hardy, SIPTU on behalf of the Complainant, said that following an episode of depression and back pain in 2013, the Complainant began using cannabis for medicinal purposes. On 18th January 2016, he was asked to attend at the occupational health doctor by the Respondent. He disclosed to the doctor that he had taken cannabis for medicinal purposes some days earlier. This was confirmed by medical samples and the Respondent later characterised this as failing a drugs test.
Mr Hardy contended that contrary to section 6(2) of the Acts, the Complainant’s dismissal resulted 'wholly or mainly' from his 'political opinions', namely his opinion that the use of cannabis for medicinal purposes should not be a criminal offence. He contended that if this is found, section 6(2) of the Acts would operate to deem the dismissal unfair.
Mr Hardy referred to the letter of dismissal of 18th February 2016 which included in the reasons for dismissal: -
- “Your passionate advocacy of an illegal drug, your declared position as a cannabis activist at both disciplinary meetings and your continuing use of this drug ...”
Furthermore, Mr Hardy contended that the employer had behaved unreasonably in dismissing the Complainant. He said that save for unsubstantiated claims of some erratic behaviour, not in the end relied upon, there were no issues of poor performance identified by the Respondent. The Complainant had a perfect disciplinary record in his fourteen years of service, which the Respondent had not taken into account. He said that there was no evidence that the Complainant's security role was compromised or would be in future. Dismissal for gross misconduct was, in these circumstances, unreasonably harsh, particularly as no opportunity to seek professional help was afforded to the Complainant.
Mr Hardy said that there was no allegation that the Complainant used or had cannabis on the premises or at times close to his work schedule or was ever under the influence of cannabis while at work. He contended that the Respondent took no action other than disciplinary action concluding in dismissal, and, in particular, did not implement its own Substance Abuse Policy or give any reason for not doing so. This policy envisages the continued employment of persons using substances covered by misuse of drugs legislation who co-operate with treatment. The Respondent cannot simultaneously maintain its commitment to its own Substance Abuse Policy and contend that an employee who fell squarely within its ambit was nevertheless to blame for his own dismissal in blatant contravention of that policy.
With regard to the redress sought, Mr Hardy said that the Complainant seeks reinstatement under section 7(1)(a) of the Acts. He said that he is now on prescribed anti-depressant medication and has not used cannabis for more than a year. He has no intention of using cannabis again unless
prescribed by a doctor in accordance with Irish law.
In support of his contention, Mr Hardy cited the High Court inBank of Ireland v O'Reilly IEHC 228 where it held as follows: -
- At the end of the day, the court has to grant the remedy which will do
justice between the parties. I have already concluded that the bank's conduct in this case was unreasonable and disproportionate ...
In my view, an award of compensation would fall far short of providing
adequate redress in this case and the only appropriate remedy is reinstatement.
He contended that the Respondent is responsible for establishing that the relationship between it and the Complainant has been damaged to such an extent that it is no longer productive or feasible, and he submitted that in this case the Respondent has not done so.
Evidence of Mr F, Security Manager
Mr F told the Court that he has been employed by the Respondent for 34 years, and has been the Security Manager since 2003. He outlined in detail the importance of security with the organisation and the role of the Complainant in that regard. He highlighted the nature of the Complainant’s security role and the specifics of that task. He gave details of the Standard Operating Procedure for Security personnel who discover illicit goods, including illegal drugs.
Mr F stated that the reason for the meeting with the Complainant on 18thJanuary 2016 was due to the reports he was receiving of the Complainant’s irrational behaviour. These were brought to his attention by the Complainant’s supervisors and colleagues. They said that the Complainant was himself contravening security measures and got annoyed when challenged about his behaviour.
Mr F said that at the disciplinary meetings with the Complainant the respondent offered the services of the EAP to him but he declined to avail of the service.
Evidence of Mr E, HR Manager
Mr E said that he had worked for 20 years in HR and had joined the Respondent as the HR Manager in January 2016. He said that at the meeting with the Complainant on 8th February 2016 to discuss his failed drug test and his erratic behaviour he was really surprised at what he was met with. He said the meeting went a certain direction. The Complainant did not deny his use of an illegal drug, he was infuriated at being accused of using an illegal drug, he expressed his strong intent to continue to use cannabis. Mr E said that he expressed no regret and did not accept that it was a problem, there was no acceptance that it could impact on his judgment. He said that the meeting got so heated he had to call a break to calm things down and to focus on the seriousness of the situation. Mr E said that on resumption of the meeting the Complainant returned with even greater conviction of his intent to continue to use cannabis. He said that he was offered the services of the EAP and recommended to avail of it. At a further meeting on 15thFebruary 2016, Mr E said that it was explained to the Complainant that the issue was very serious, however, he said that the Complainant continued in his conviction regarding his justified use of cannabis and was steadfast in his intention to continue to use it. Once again, the Complainant was advised to avail of the services of the EAP.
Mr E said that following that meeting, he took time to consider the matter and decided that due to the nature of the Complainant’s role, to continue his employment was intolerable in the circumstances. He said that the Respondent had fundamentally lost trust in him and consequently made the decision to terminate his employment.
Mr E said that consideration was given to re-deploying the Complainant and this could have been feasible had he agreed to undergo a rehabilitation programme. However, the Complainant not only opposed treatment but relayed the complete opposite view and questioned the Respondent’s right to query him about his use of cannabis. The witness said that the Complainant told him that he was using the drug as self-medication and that until something legal came along he would continue to use it. The witness said that it was for this reason that the Respondent decided to terminate his employment coupled with the fact that he had failed to engage with the EAP services and his continued stance that it was not affecting his job as a Search Unit Officer.
Mr E said that he was satisfied that the Complainant’s actions constitute “gross misconduct” within the meaning of the Respondent’s disciplinary procedures, as it was a fundamental breach of trust and confidence especially having regard to the Respondent’s absolute necessity to strictly maintain security in its operations.
When questioned as to why the Respondent did not refer the Complainant to be medically examined by the CMO (Chief Medical Officer) or by a specialist consultant, the witness said that it would have been futile to do so as he was at the far end of the spectrum as he displayed no acceptance of his use of cannabis as a problem.
When questioned as to when the Respondent decided that the Complainant’s conduct came within the boundaries of “gross misconduct”, Mr E said that it was in the days after the 15thFebruary 2016 meeting. He said that both prior to and at the 15thFebruary 2016 meeting the Complainant was informed of the seriousness of the matter. He said that the Complainant was informed by letter dated 18thFebruary 2016 that management had taken the decision to terminate his employment on the grounds of gross misconduct.
Mr E denied that the Complainant was dismissed due to his strong advocacy of the use of cannabis, but due to his use of the drug and his commitment to that use.
Section 6(1) of the Acts provides: -
- "Subject to the provisions ofthis section, the dismissal ofan employee shall be deemed, for the purposes ofthis Act, to be an unfair dismissal unless, having regard to all the circumstances there were substantial grounds justifying the dismissal. "
Findings and Conclusions of the Court
The fact of dismissal was not in dispute, therefore, there is a statutory presumption that the dismissal was unfair unless there were substantial grounds justifying it. The Respondent’s case is that the Complainant’s dismissal for gross misconduct was justified on the basis of the arguments put forward as cited above.
The Respondent’s dismissal letter dated 18thFebruary 2016 infer that the Complainant’s stated views on cannabis use undermined its trust and confidence in his capacity to perform his job, in particular, with regard to his search of members of the public and their bags. This may be a cogent argument especially if he found a member of the public in possession of the drug. However, in all the circumstances of this case, the burden of proving that the dismissal was wholly or mainly due to the Complainant’s political opinions is a strong one. Taking all the circumstances of this case into account, the Court is not satisfied that his dismissal comes within the definition of dismissal for “political opinions”, within Section 6(2) (b) of the Acts.
In determining whether a decision to dismiss is fair or unfair the Court must examine whether or not there were substantial grounds justifying the dismissal and whether the process through which the decision was arrived at was fair and reasonable having regard to all of the circumstances.
InKilsaran International Ltd v Vet,UDD1611, this Court referred to the Supreme Court decision inGlover v BLN Limited(1973) IR 388 and made the following point: -
- “the [Supreme] Court decided that where there was provision in a contract of employment for some form of disciplinary procedure, it was an implied term of the agreement that any enquiry held under it should be conducted fairly. That principle applies in the present case. It is quite clear from the case law of the superior courts in this jurisdiction, that there is no fixed standard of natural justice which lays down that certain specific matters must be complied with. The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances. However, there are certain fundamental requirements of fair procedures that cannot be dispensed with regardless of the particular circumstances that arise in an individual disciplinary matter. They include: (i) the requirement to make the employee who is the subject of the investigation aware of all the allegations against him or her at the outset of the process; (ii) the requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process; and (iii) in the event that an allegation against the employee is upheld, any disciplinary sanction imposed is proportionate to the complaint that has been substantiated. (The foregoing does not purport to be a comprehensive statement of fair procedures but merely focuses on those that fall for particular consideration by the Court in the instant case.)”
The Court notes that the Respondent’s disciplinary procedures states as follows: -
- “Gross or serious misconduct is regarded as misconduct of such a nature that it may fundamentally breach the contractual relationship between the Company and the employee and may justify the Company in no longer accepting the continued presence of the employee at the place of work. Where an allegation of gross misconduct is made, the employee should be informed of the allegation and may be suspended from work on full pay while the alleged offence is investigated.”
In its submission to the Court and based on the evidence given, it is clear that while the Complainant was informed that the matter in issue was a serious one, he was not informed that the Respondent was treating the issue as “gross misconduct”. In fact, the minutes of the meeting of 15thFebruary 2016 conclude by stating that the Complainant will be kept informed at all stages and that the Respondent would correspond with him in due course. Three days later the Respondent corresponded with him to inform him that he has been dismissed.
Mr E in his evidence said that management made the decision that the Complainant’s actions constituted “gross misconduct” in the days following the disciplinary meeting held on 15thFebruary 2016. He said that that decision was made when it reflected on what had transpired at the 15thFebruary meeting. It is clear to the Court that contrary to its own procedures the Complainant was not informed of the allegation of “gross misconduct” prior to the decision to dismiss him on 18thFebruary 2016. It is clear to the Court that in providing for an employee to be informed of an allegation of “gross misconduct”, the procedures afford an employee the opportunity to prepare for such an allegation which may lead to his/her dismissal, to allow for appropriate representation to be in place and to provide an opportunity to mount a proper defence.
Having carefully considered the facts as presented to the Court, the Court is satisfied that the Respondent proceeded to dismiss the Complainant without informing him that it had deemed his actions as “gross misconduct” contrary to its disciplinary procedure. Instead it relied on the outcome of the disciplinary hearing to justify summary dismissal. The Court finds that the Respondent’s admitted failure in this regard amounts to a flaw in the procedures deployed in this case.
Secondly, the Court notes that the Respondent brought it’s “Substance Abuse Policy” to his attention on a number of occasions and sought his co-operation, however, he did not engage with it. This includes a provision that contravention of the Policy can constitute conduct warranting dismissal. It strictly prohibits the possession, use or supply of illicit drugs and provides,inter alia, for both voluntary and mandatory referral for assistance through the CMO or an agency recommended by the Employee Assistance Programme. It provides that where it has been discovered that an employee has an addiction problem or where his/her work performance/conduct is impaired through substance abuse, if an employee does not seek treatment voluntarily he/she may be referred by management to the CMO. This did not happen in this case.
The evidence shows that at the material time, the Complainant was not co-operating with the Policy, however it is not clear, whether or not he would have attended the CMO had such appointment been made on his behalf. At the hearing of the appeal heard on 1stFebruary 2018, almost two years after his dismissal. Mr Hardy informed the Court that the Complainant had ceased using cannabis for over a year. By that reckoning, it is clear that he continued to use cannabis for a significant period after his dismissal.
Having made these findings, the Court finds that the failure to abide by the terms of its disciplinary procedures and its Substance Abuse Policy render the dismissal procedurally unfair. Accordingly, in all the circumstances, the Court must find that the dismissal of the Complainant was unfair.
The Complainant outlined in detail his preferred remedy in the event that the Respondent’s appeal was unsuccessful. He said that he wished to be reinstated or re-engaged. Whereas the Respondent outlined in detail the reasons why the Court should not award such a remedy in the event that the Court found in the Complainant’s favour.
In determining the redress to award in this case, the Court has come to the conclusion that re-instatement or re-engagement are not appropriate remedies in this case. In reaching this decision and in determining his level of contribution to his own dismissal, the Court makes the following findings: -
- •the Complainant substantially contributed to his dismissal by his non co-operation with the Respondent and his steadfast commitment to the continued use of an illegal drug, contrary to the Respondent’s Substance Abuse Policy;
- •his erratic behaviour while on duty, coupled with his refusal to abide by the Respondent’s strict safety regulations was not acceptable;
- •his position as a Search Unit Officer in a security critical role was a major factor; by his continued use of an illegal drug it was potentially putting colleagues and members of the public at risk;
- •the Respondent’s stated loss of trust and confidence in the Complainant, it could no longer trust him to fulfil his duties to the required level.
In the circumstances the Court finds that the appropriate remedy in this case is an award of compensation. The Court notes that the Complainant made little effort to mitigate his loss following his dismissal.
In the circumstances the Court determines that the appropriate remedy under the Acts is compensation in the amount of €5,000.00, this sum also reflects the extent to which the Complainant, in the Court’s view, contributed to his own dismissal.
The Decision of the Adjudication Officer is set aside and substituted an order for compensation as set out herein.
The Court so Determines.
Signed on behalf of the Labour Court
26 February 2018Deputy Chairman
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.