ADJUDICATION OFFICER DECISION/RECOMMENDATION
A Railway Company
Daniel Bermingham Solr.
Frank Drumm BL
Industrial Relations Manager
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
The evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
Also, an Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 1st of May 2019) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
In addition to the foregoing and accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employment) with a Statement of certain Terms of the employment (as specified in Section 3 of the 1994 Act).
A further complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid, is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Lastly and in accordance with Section 13 of the Industrial Relations Act of 1969 (as amended by the Workplace Relations Act 2015 so as to include Adjudication Officers) and where a trade dispute (not specifically precluded by Sect. 13) has been identified and has been referred to the Director General of the Workplace Relations Commission who in turn refers such a dispute to an Adjudication Officer, so appointed, for the purpose of having the said dispute heard in similar manner as has been set out in Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Act which allows the Adjudication Officer to Investigate a matter raised. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant has brought claim for Unfair Dismissal against his Employer of the last 15 years.
Summary of Complainant’s Case:
The Complainant questioned the manner of the investigation, the completeness of the investigation and who had conducted the Investigation over and above who conducted the Disciplinary. The Complainant states that the punishment is not proportionate to the alleged wrongdoing.
Summary of Respondent’s Case:
The Respondent says the gravity of the situation left it with little option other than to dismiss the Complainant. The Respondent abided by it’s own in-house procedures and gave the Complainant every opportunity to make his case but his position was unsustainable.
Findings and Conclusions:
I have carefully considered the evidence adduced. The Complainant was dismissed from his employment on the 13th of February 2019 and is now challenging the fairness of this Dismissal.
The Complainant is a long-serving employee with the Respondent company having worked with them since 2005. In 2010 he was promoted to a CTC signal operative position which is a very specialised position involving the monitoring of crossings at which traffic and pedestrians intersect with railway tracks. It is self-evident that the safety and welfare of thousands of commuters and train users are in the hands of such operatives. The Complainant, in a work shift, can monitor up to ten or fifteen screens at a time to make sure that the intersection points are clear and that it is safe for advancing locomotive traffic. A CTC Operative has to be on high alert, ready to react and vigilant in the job of overseeing.
In a routine examination of an incident brought to the attention of management by the Complainant it was noted on a review of the morning’s footage that another incident had occurred when a member of the public had been inside the barriers at a level crossing as a train went by. There was no accident and it seems the member of public went about his or her way and no explanation was given for their presence inside the barrier and only meters away from the moving train.
When approached, the Complainant knew nothing about it and was not even sure if he had been monitoring the screens at that exact time though it is common case that he had been monitoring them some few minutes later.
The Complainant was relieved of his duties pending an investigation and he was asked to take a “for cause” drugs and alcohol test which is a standard course of steps taken by the employer where an incident of this significance occurs. I understand that the workplace operates a zero tolerance to the presence of drugs and alcohol in the system and that the entire workforce is subject to random drugs and alcohol testing.
The Complainant’s urine test came back positive for cannabis.
I fully accept the assertion that the Complainant knew or ought to have known that a positive Drugs or Alcohol test would attract a significant Disciplinary sanction. I cannot accept that there was some onus on the Employer to establish what level of “unfitness to work” the Complainant had hit before it reacts. The fact of having a positive test for either drugs or alcohol automatically renders an Employee unfit for work. That is in the nature of how a zero-tolerance policy applies.
I have some sympathy for the Complainant. I do not think that the Complainant had presented to work aware of the fact that there was cannabis in his system and there is some support for his argument that the drug can stay in the system for up to forty days. However, so little is known about the longevity and other effects of this drug that the use of same in any circumstances where your job is so safety sensitive has to be considered bad Judgement.
I listened to evidence concerning how other people might have missed the safety incident which gave rise to the drugs test and I have listened to the Complainant-led evidence concerning how other Employees have not been given the zero-tolerance treatment. On balance however, I cannot accept that the Employer was not well within it’s rights to dismiss an employee that had presented to work and failed a drugs test.
The Complainant has also suggested that the fact of his being an active Union Member had some bearing on the level of sanction applied does not stack up in the circumstances.
I cannot find that the Dismissal was unfair and I cannot find that the procedures adopted – including a singularly independent review conducted by a retired member of the Labour Court – were inherently or in any way unfair.
I have heard evidence on the Terms of Employment issue and on the Payment of Wages issue which relates to outstanding Annual leave entitlements at the time of the Dismissal.
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 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
CA-00028116-001 - The Complainant was not Unfairly Dismissed and his claim under the legislation fails.
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
CA-00028116-002 – I make no recommendation under the Industrial Relations Acts
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
CA-00028116-003 – This claim is well-founded and I award compensation in the sum of €300.00
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
- This Claim is well-founded and the Complainant is owed payment in lieu of accrued Annual leave I award compensation in the sum of €4,075.00
Workplace Relations Commission Adjudication Officer: