ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023533
A Building Supplies Company
Barnaba Dorda SIPTU
Helen Quinn IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing: 14/11/2019
Workplace Relations Commission Adjudication Officer: Roger McGrath
In accordance with Section 41 of the Workplace Relations Act, 2015and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,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).
The Complainant commenced employment with the Respondent, a distributor of building products, in August 1999. He was dismissed on 12th April 2019. At the time of his dismissal the Complainant was employed as a driver. His gross weekly pay was €980.00. A complaint was lodged with the WRC on 8th August 2019. Compensation was the preferred redress of both the Complainant and the Respondent.
Summary of Respondent’s Case:
The Respondent provided a detailed written submission.
The Respondent submits that the Complainant was dismissed for gross misconduct, following a thorough process, undertaken by the Respondent to ensure maximum fairness and transparency was afforded to the Complainant, in accordance with fair procedures and natural justice. The Respondent denies that the dismissal was unfair.
The Respondent submits that on 18th February 2019, the Complainant, along with several other employees were the subject of a random alcohol and drug testing process. Upon completion of an initial swab test the Complainant’s test returned a positive indication for the presence of illegal substances. A second test was carried out and again the result was positive. As per the testing process the Complainant was required to provide a urine sample before leaving the premises. This sample was taken by a representative from an external testing agency and was analysed in a government accredited laboratory through a strict chain of custody process.
In line with the Respondent’s Disciplinary Policy and considering the potential risks of the Complainant participating in driving duties, the Complainant was suspended from his duties, on full pay pending the drug test laboratory results.
On 26th February 2019, drug test laboratory results were received by the Respondent confirming the presence of Cannabinoids in the Complainant’s system on the day the test had been carried out.
On foot of these results the Complainant was invited to an investigation meeting. At the time of invitation, the Complainant was informed of his right to be accompanied by a work colleague.
The Complainant attended an investigation meeting on 25th March 2019. The Complainant was unaccompanied but was aware of his right to be accompanied. At the investigation meeting the Complainant stated that on 18th February 2019 (the date of the test) he had not been under the influence of illegal substances but that they were in his system as he had been, “smoking a joint.” When questioned as to whether he had informed his manager that he had taken drugs the Complainant confirmed that he did not advise his manager as “he didn’t think anything of it…I wasn’t thinking straight”.
On 2nd April 2019, a summary of the investigation was sent to the Complainant indicating that there was a case to answer and therefore an invitation to a Disciplinary Meeting scheduled to take place on 5th April 2019, accompanied the summary.
The Disciplinary Hearing took place as scheduled. The Complainant was accompanied by a work colleague. The Respondent submits that at the Disciplinary Hearing the Complainant altered his explanation which he had given at the investigation meeting that he had smoked a joint and said instead he had picked up the wrong cigarette.
The Respondent wrote to the Complainant on 12th April 2019, informing him that the outcome of the Disciplinary Hearing was the termination of the Complainant’s employment, with immediate effect. The author and decision maker stated in the letter of dismissal that his findings were (in summary) that:
1. Illegal substances had been detected in the Complainant’s system which is a serious breach of company policy.
2. The Complainant had failed to put forward a any reasonable explanation or mitigation for same.
3. That the consumption of substances can impair the behaviour of a person in a safety critical role which is a serious failure in their duty and cannot be tolerated in any way.
4. The Complainant’s actions were gross misconduct.
The Complainant was informed of his right to appeal the decision.
An appeal Meeting took place on 9th May 2019, at which the Complainant was accompanied by his full-time union official. The union official raised several points relating to the dismissal. However, the decision to dismiss was upheld.
In direct evidence the manager who made the decision to dismiss the Complainant, stated that he did not know the Complainant before he met him at the Disciplinary Hearing. He also stated that he understood a decision to dismiss someone from their employment was a big decision. He stated that the Complainant’s role was a safety critical role and he could not trust that such an incident could not occur again in the future; trust had been lost in the Complainant. The witness also stated that the HR Officer at the Hearing did not play any part in the decision to dismiss, she had been a note-taker only. He also stated that it was clear to him that the Complainant knew the policy.
In cross examination, the witness stated that there is a clause in the policy which allows for a different approach regarding an employee’s drug taking but it is expected that the employee come forward before a drugs test and inform management of their difficulty; not after a drugs test.
The witness stated that he had remined the Complainant at the Disciplinary Hearing that he could bring a colleague to the hearing.
At the hearing the Respondent confirmed that since January 2017 there had been four dismissals from the company for failing drug tests.
In conclusion, the Respondent submits that the dismissal was not unfair as it resulted wholly from the Complainant’s conduct, which was not denied or explained; there were no mitigating circumstances put forward for the consumption of illegal substances; and that the Respondent requires all staff to work to its values of respect, accountability, and integrity; the Respondent is legally obliged to take all the necessary steps to safeguard the workplace and ensure the safety of staff and of the public in respect of its drivers. There are significant potential consequences of the Complainant’s actions in his capacity as a driver and therefore, the sanction of dismissal was a justifiable response in the circumstances of the case.
Summary of Complainant’s Case:
The Complainant provided a detailed written submission.
The Complainant submits that he was unfairly dismissed; that the sanction was unwarranted, or at least too severe; that the Respondent did not follow fair procedures and natural justice and all circumstances were not considered.
The Complainant submits that the Respondent is known for being reluctant to engage with trade unions, at a collective or individual level. The Complainant had been working as a driver for most of his years in the Respondent company. He was a very good employee, prudent, committed to his job. He had an excellent work record. At the time of his dismissal he did not have any warnings on his file.
The Complainant submits that in 2017 following a return to work from sick leave he was relocated to the warehouse and was tasked with sweeping the floor. On foot of this the Complainant raised a grievance. He felt he was being bullied. In or around March 2018 due to circumstances connected to his bullying claim the Complainant went sick for a substantial period. While he was out the Respondent entered some discussion with the Complainant on a possible redundancy/exit package. In December 2018 the Complainant rejected the Respondent’s offer of statutory redundancy. The Complainant returned to work at the beginning of 2019 as a driver.
On 18th February 2019, only 4 weeks after his return to work, the Complainant was subject to a random alcohol and drug testing process. The Complainant denied being under the influence of any drug, however, he admitted that he had smoked one joint on the weekend. Shortly after this the Complainant was told he was being placed on paid suspension pending the results of further tests. The Complainant was offered a taxi to take him home, but he declined the offer and the Respondent allowed him to drive his own car home. No authorities were called. The Complainant submits that he behaved as normal and his behaviour and ability to communicate were not impaired by any drugs or substance.
On 1st March 2019, the Complainant received a letter from the Respondent informing him of an impending investigation meeting, given that the laboratory tests had positive. He was warned that the matter was serious and may involve disciplinary action up to and including dismissal.
The Complainant submits that at the investigation meeting, which took place on 25th March 2019, he was advised that he could be accompanied by a work colleague. At the meeting the Complainant confirmed he had smoked one joint on the Saturday before the initial test. When asked to confirm that he had been given the right to representation he replied by saying that he understood that he was not allowed to talk to anyone, thus he was alone at the meeting. The Complainant raised several issues relating to a previous grievance he had raised. Following the investigation meeting a summary document was prepared which concluded that the Complainant had a case to answer.
A Disciplinary Hearing took place on 5th April 2019, the Complainant was accompanied by a work colleague. The Complainant stated that he had smoked a joint by some sort of mistake, but he was not under the influence of any substance when he came to work on Monday 18th February 2019. The Complainant also raised issues of bullying, demotion, sick leave and a pay agreement with the Respondent. The Complainant’s representative also pointed out that there was no evidence to support the contention that the Complainant had received adequate training in relation to the alcohol and drugs policy being utilised by the Respondent.
On 12th April 2019, the Complainant received a letter confirming the outcome of the Disciplinary Hearing. The Compliant was shocked and surprised and immediately contacted his union and then appealed the decision.
An Appeal Hearing took place on 9th May 2019, but the appeal was unsuccessful.
In direct evidence at the hearing the Complainant stated that he had had serious problems with his manager in 2016 and he raised a grievance in 2017, alleging bullying by his manager. The Complainant was represented by his full-time union official in this process. In 2018, the Respondent approached the Complainant’s union official saying they wanted the Complainant “out”. Some negotiations took place but were ultimately unsuccessful as the Complainant turned down the Respondent’s offer.
The Complainant stated that he had smoked a joint on the Saturday before the initial test, “he had made a mistake”. He stated that he had only received the relevant policy after the test and that he had not attended the Toolbox Talk on it as he had been out sick at the time it took place. The Complainant stated that the reason he did not contact his union for representation was because the letter told him that he could not talk to anyone.
The Complainant stated that he had made no attempt to get work in April to June but had taken up good employment in July 2019.
In conclusion, the Complainant submits that the decision to dismiss was unfair for several reasons; he was not under the influence of any substance on the day of the initial test; that the Respondent had failed to adequately train the Complainant regarding the relevant policy; that no consideration was given to any alternative sanction other than dismissal.
In addition, the Complainant puts forward that the Respondent did not follow fair procedures in that the Respondent failed to allow him be represented by a work colleague/trade union official at the investigation meeting; failed to inform him of his right to be represented by a trade union official at the Disciplinary hearing; failed to ensure that the Complainant had an impartial process, namely that a HR Officer, was (inappropriately) involved in the disciplinary and appeal hearing.
The Complainant also suggested that the overall decision to dismiss him was coloured by his work history; that he had previously made allegations of bullying against his manager; that he had rejected the Respondent’s offer of an exit package in December 2018.
Findings and Conclusions:
I have considered this matter carefully.
In relation to a complaint of unfair dismissal arising from an employee’s conduct, the relevant legal provisions and the factors to be considered are contained in Section 6 of the Unfair Dismissals Act 1977 including: “(6) In determining for the purposes of this Act whether the 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 more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal. (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” I must therefore consider both the substantive issues leading to the dismissal and the fairness of the procedures adopted.
As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.
In relation to procedural fairness, I am guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) which provides that the procedures for dealing with disciplinary issues (reflecting the varying circumstances of enterprises/organisations), must comply with the general principles of natural justice and fair procedures. The contractual and constitutional rights to fair procedures are also well established (In Re: Haughey  IR 217).
In weighing up the substantive issues leading to the dismissal and the fairness of the procedures adopted, the correct approach is to consider both together as per Iceland Frozen Foods -v- Jones (1983) 1 ICR 17. Applying the aforesaid legal principles and statutory provisions to the facts adduced, I find as follows:
Regarding representation, I am satisfied the Complainant understood he could have a representative with him throughout the investigation and disciplinary process. He received two letters inviting him to the investigation meeting, each letter referred to his right to bring a work colleague to the meeting. In the letter inviting him to the Disciplinary Hearing he was also advised of his right to representation of a “work colleague” as per the Disciplinary Procedures (he did have a work colleague as a representative at the Disciplinary Hearing). The Complainant had previously had union representation at a meeting or meetings related to a grievance he had raised and must have been aware that he could have had union representation with him if he had so chosen. None of the letters put in front of me state he could not talk to anyone, as was alleged.
Regarding the involvement of the HR Officer, the fact that internal HR personnel appeared at several times through the process does not lead me to think that this resulted in any difficulties regarding the fairness of the process. The Respondent has a small HR team, (two people), and as such it is inevitable that HR personnel will have roles to play in such a scenario. In my view the HR personnel referred to did not play a part in the decision-making process and therefore their involvement does not taint the process.
Regarding the lack of adequate training and the Complainant’s knowledge and understanding of the relevant policy, I find the evidence does not support the contention that the Complainant was somehow unaware of the existence of the policy and the possible ramifications of taking illegal substances as he had himself undergone at least one test previously and must have been aware that a four colleagues had been dismissed for breaches of the policy in the previous two years. It should be noted that the Complainant signed a consent detailed form before submitting to testing.
Previous grievances alluded to by the Complainant during the disciplinary process and at the WRC hearing, were investigated and were not upheld. The Complainant did not appeal the outcome; therefore, they are not pertinent to this matter.
I find that the procedures used during this process were thorough and fair.
As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”
There is no doubt that the Complainant smoked an illegal substance prior to undergoing the initial test, he admitted to so doing. Such an action is specifically proscribed in the Respondent’s policies. Considering the Complainant’s safety critical role, I find that the Respondent’s decision to dismiss falls within the aforesaid range of reasonableness.
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.
The complaint is not well founded.
Summary of Complainant’s Case:
The Complainant submits that he is due a notice payment.
Summary of Respondent’s Case:
The Respondent submits that as the Complainant was dismissed on grounds of gross misconduct he has no entitlement to notice or payment in lieu of notice.
Findings and Conclusions:
As the Complainant was dismissed on grounds of misconduct he is not entitled a notice payment.
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.
The complaint is not well founded.
Dated: 9th March 2020
Workplace Relations Commission Adjudication Officer: Roger McGrath
Drug testing, cannabis, representation, gross misconduct