ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00016562
A General Operative
Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 08/11/2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
The worker seeks to return to work from extended sick leave but cannot do so as he is not able to provide a sample free from cannabis.
Summary of the Worker’s Case:
The worker outlined that he was not sure what his employment status was as of the date of the adjudication. The de facto suspension began following the second medical assessment in October 2017 and continues from that date. The worker was paid for some months via the sick pay scheme. He took no annual leave and no public holidays. While the employer has not used the word “suspension”, the worker was effectively suspended.
In October 2017, the worker tested positive for cannabis at a medical assessment when he was returning to work from sick leave. He had submitted positive samples before but was allowed to work. He does not have a drug problem and uses cannabis recreationally and to cope with stress.
The drugs test is a threshold test and detects whether there are drugs in a person’s system. The test does not assess the quantity of drugs in a person and a person could fail with a small quantity of drugs in their system. One could do a saliva test to show whether someone is under the influence while the blood test used by the employer shows whether you have used drugs in the last 30 days.
The worker denied the allegations of smoking at work or being high. He was called to the office in September 2017 on a hearsay basis. He then asked for time off for sick leave. He had not heard of the “bouncing” allegation before.
The worker lodged a grievance in July 2018, but this was not properly dealt with. The worker has not been given any formal process to state his position. The employer just re-stated their position in reply to his grievance. The worker said that the minutes of the meetings were inaccurate. He never said he needed rehabilitation and he does not abuse drugs.
The worker commented that there were plenty of employees who consume excessive alcohol and are not tested. The employer policy treats drugs and alcohol the same, so both the worker and others should be treated the same. The worker says that he is entitled to use cannabis so long as he is fit for work. The employer policy and Safety, Health and Welfare at Work Act refer to “under the influence”, but he never attended work under the influence.
The employer imposed a drugs policy in November 2017 without union approval. The worker does not use machinery, but he loads steel gates onto a palette, which are taken away by a forklift. The higher the safety critical assessment, the higher the threshold should be.
Summary of the Employer’s Case:
The employer outlined that the worker is not on suspension but on unpaid leave because of his refusal to engage in a process to address his consuming drugs. The worker said he would go into rehabilitation. He failed two drugs tests. The employer dealt with the worker’s grievance and told him what he needed to do.
The employer outlined that it galvanised steel and processes 80 tonnes per day. It is a safety critical environment. They cannot have people who are impaired on the floor. Those who do not deal with their alcohol use are not retained. They have taken a compassionate view with alcohol and let people deal with their issues. There was a collective agreement regarding being in a fit state at work.
The employer has a duty under Safety, Health and Welfare at Work Act to maintain a safe place of work and the employee must also be fit for the job. The worker is a General Operative and operates machinery. The employer submitted that they could not have a situation where they condone drugs. The drugs policy was modified in November 2017 and was in place for some years. They test new entrants and the test is either a positive or a negative.
The 2016 incident arose following anonymous emails about the worker being “high as a kite”. They spoke with the worker and he agreed to see the doctor and failed the drugs test. No one is out to get the worker and the employer is happy with his work. The worker agreed to address the issue and to stop taking cannabis. The worker returned to work, but the foreman commented that the worker was “bouncing” on the shop floor. The worker went on stress-related sick leave in September and later said he would return to work. The employer took the worker off the pay roll, but he remained an employee.
Findings and Conclusions:
While he remains an employee of the respondent, the worker has been out of the workplace since September 2017. He wishes to return to work and the employer wishes that he returns. The worker has worked for the employer since the mid-1990s.
This impasse arises as the employer requires that the worker pass a drugs test prior to returning to work. The employer policy on intoxicants allows for “with-cause” testing, a provision it seeks to rely on. The worker says that he is fit to work, is not dependent on cannabis and has not been intoxicated in the workplace. He uses cannabis to deal with stress, although not prescribed by a medical practitioner. Given that the drugs test will detect any trace of a drug, he will not pass the test.
The worker points to the dangers posed by alcohol consumption. A fellow worker may have alcohol in their system when going to work on a Monday, but not be intoxicated. This fellow worker would not pass the test for intoxicants, but no action is taken against them.
The employer referred to its duty of care to the worker and other employees, as well as its obligations under the Safety, Health and Welfare at Work Act. It operates an industrial facility, galvanising steel.
The worker seeks a recommendation that he be permitted return to work without delay. He states that the requirement that he submit a ‘clean’ sample is unreasonable and not authorised by policy. He states that alcohol and drug use should be treated the same.
The use of alcohol is legal, albeit subject to licensing law and manufacturing and distribution regulation. Because it is illegal, cannabis is not so regulated. It is true that the legal position regarding cannabis is changing. Medicinal cannabis is to be made available in Ireland. Recreational cannabis use is permitted in Portugal, the Netherlands, and other jurisdictions. As things stand, recreational cannabis use is not permitted in Ireland, per the Misuse of Drugs Acts. Alcohol and cannabis are not equivalents. The respondent is, therefore, entitled to rely on its with-cause intoxicant testing policy and to assess whether employees, including the worker, are fit for work.
I do not make the recommendation sought by the worker. I do, however, recommend that the parties engage in facilitating the worker’s return to work, in line with the relevant policies and agreements.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the parties engage in facilitating the worker’s return to work, in line with the relevant policies and agreements.
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Drug testing / cannabis