Complainant

Respondent

Parties

Philip  McMahon

Dublin Bus

Representatives

Zoe O’Sullivan                                          IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00068827-001

24/01/2025

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

In line with the coming into effect of the Workplace Relations (Miscellaneous Provisions) Act, 2021 on the 29th of July 2021, I can confirm that the witnesses herein were required to give their evidence on oath or affirmation. This was done in anticipation of the fact that there may have been a serious and direct conflict in evidence between the parties to the complaint. It is noted that the giving of false statement or evidence is an offence.

The specific details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 24th of January 2025. In general terms, I will therefore be looking at issues that have arisen in the six-month period directly preceding this date.

The Complainant was not represented and made his own case. The Complainant provided me with documents supporting his case on the 27th of January 2025. In August of 2024 the Complainant provided me with a summary of events prepared by him with supporting documents. The Complainant also referred me to a number of news articles which he believed would be of assistance in my consideration of the facts as presented. No objection has been made in connection with any of the documents provided by the Complainant.

When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant additionally relied on the submission set out in the Workplace Relations Complaint Form which read:

On 26 July 2024 I was served with seven days’ notice of dismissal after twenty eight years’ service as a Bus Driver with Dublin Bus.

I was falsely accused by my employer of refusing to submit for intoxicant testing, when in fact I offered to submit for intoxicant testing under the agreed procedures.

Following is the background and timeline of my dismissal.

Sept' 2011:

Health and Safety Authority state;

"The first thing that needs to be said is that there is no requirement for employees to undergo testing for intoxicants under health and safety legislation".

"There is also no requirement under health and safety legislation for employers to test employees for intoxicants" (Attached).

3 October 2011:

Dermot O'Leary, now NBRU General Secretary, stated the HSA "decreed" that "employees are not required to submit to intoxicant testing" (attached).

September 2016:

Dublin Bus drivers vote to accept random breath, blood and urine intoxicant testing.

Note: Implementation date 1 January 2017.

(WRC Ref: C -161262, date 29/09/16) (relevant section attached).

2019:

Dublin Bus breach 2016 alcohol and drugs agreement by;

(1) contracting a private company [Randox] to carry out intoxicant testing.

https://www.thejournal.ie/dublin-bus-drug-alcohol-testing-tender-4872367-Nov2019/

(2) Dublin Bus and Randox further breach the WRC brokered agreement by using an invasive, internal biological oral swab of the employee's mouth tissue. No consultation, consent or mandate for such.

1 August 2020:

Bus Éireann confirm they 'enhanced' testing 'beyond that required by law' regarding their alcohol and drugs testing policy.

https://www.irishtimes.com/news/ireland/irish-news/bus-eireann-to-conduct-drink-and-drugs-tests-on-staff-via-private-firm-1.4318766

May 2022

Dublin Bus introduces alcohol and drugs intoxicant testing policy  - six years after drivers voted to accept it, and five years after mandate for such expired -  (1 January 2017).

Dublin Bus confirm Randox Collecting Officers are now using biological oral swab test of employees (page 26 of policy booklet, attached).

1 JULY 2024:

I offered to submit to random alcohol and drugs intoxicant test with the Chief Medical Officer in accordance with the 2016 agreement.

Suspended on full pay for refusing to submit to unagreed biological/DNA oral swab drug test with private company Randox.

8 JULY:

Preliminary Investigation interview with Anne Deasy, Depot Administration Manager, Dublin Bus. I was represented by Brian Young, National Executive, NBRU Summerhill Garage.

24 July:

Disciplinary Procedures interview with Brendan Farrelly, Area Manager Dublin Bus. I was represented by Sean Yeates, NBRU.

26 July'24:

Seven days’ notice of dismissal issued to me.

I requested an appeal through my union - NBRU.

25 September'24:

Appeal Board hearing. I was represented by Colm Meagher National Executive and Martin O'Toole, shop steward NBRU.

Appeal unsuccessful.

Ad-misericordiam/mercy appeal issued by NBRU.

16 October'24:

Mercy Appeal with Philip Donohue, Human Resources, Dublin Bus.

Employment terminated.

Signed on for unemployment benefit.

18 December'24:

Began six month probation period with new employer as a long distance coach driver. Fully transparent with new employer that I will not submit to workplace oral biological DNA swab test by a private company, but will comply with any An Garda Síochána roadside alcohol and drug intoxicant test if requested by Gardaí.

Conclusion:

Despite the expired mandate, I fully support the alcohol and drugs intoxicant agreement accepted by the drivers in the 2016 pay agreement brokered by the WRC.

Dublin Bus violated my fundamental rights by suspending me and terminating my employment which spanned twenty eight years.

I respectfully request the WRC restore my fundamental right to bodily integrity by ordering my immediate reinstatement.

The Complainant alleges that he was unfairly dismissed in circumstances where his employer was enforcing a drug and alcohol screening policy with which the Complainant had issues.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Respondent in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent was represented by the business representative group known as IBEC. The Respondent provided me with a comprehensive written submission just prior to the hearing. This included a number of appendices including a full copy of the  Dublin Bus alcohol and drugs policy dated May of 2022. I have additionally heard from a number of witnesses for the Respondent including the HR Services Manager and the Area Operations Manager. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation.

The Respondent rejects that the dismissal herein was unfair.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of this hearing.

The Complainant had been employed with the Respondent transport company since 1996. My sense is that the employment relationship was largely uneventful and that the Complainant had been a solid dependable employee.

The Complainant wanted it to be made known to me that the period during which the country was locked down with the Covid pandemic was very difficult for him. As a person not comfortable with the vaccination process, he felt that he bore the brunt of societal judgement over the years following on from 2020.

The Respondent described a long and arduous workplace union/employer negotiation to get drug and alcohol testing integrated into the workplace. There is no doubt that the rationale behind having and implementing such a policy is beyond question. All aspects of customer care demand that bus drivers would be sober and well rested before getting behind the wheel of a bus. This is a given, and one which the Complainant has no issue with.

The pre-history of the current method for testing was, as noted, long and involved. I understand that early attempts to have on-site testing were vigorously resisted. The Unions, by 2011, had rejected any attempt to have members of the workforce to be under any obligation to submit to testing on demand.

It seems, though, that the Employer ultimately did manage to get a testing regime to become a part of the workplace culture. This happened as part of negotiated talks which happened between Unions and Management in and around 2016. At that time, it was agreed that a Drugs and Alcohol Policy would be agreed for incorporation into the operations of this place of employment. I understand that the staff got some sort of pay-bump at the time of these negotiations. This might have been a quid pro quo situation. Under the agreement reached, the parties agreed that up to 5% of it's staff would be selected for random testing in any given year.

The talks also included issues around schedule changes, pension issues and pay proposals and the agreement was signed off on on the 29th of September 2026.

I understand that for some years after this agreement the Dublin Bus Chief Medical Officer and his or her staff were solely responsible for conducting any and all testing and I further understand that this was primarily done through the testing of blood or urine samples. The policy and how best to implement same continued to be discussed within the workplace. I accept that the objective at all times was to ensure that end users/passengers could be confident that the bus drivers were drug and alcohol free. I accept that this a worthy objective.

Post-Covid, the Respondent employer struck a deal with Randox testing services to provide a third-party service within the workplace.  I understand that Randox was allowed to come onto any one of the many workplaces owned and operated by the Respondent Employer for the purpose of conducting random testing. By this time, the Respondent believed that (as more sophisticated testing was available) the real requirement was for then and there testing. This ensures that workers about to get behind the wheel of a bus are drug and alcohol free in that moment.

The deal struck with Randox testing was to have employees tested for alcohol by way of a breathalyser test and to allow for the testing for drugs be by way of a biological swab taken from the individual’s mouth.

I understand that Randox gets sent the names of all staff on a given site and that the list of names is scrambled b y Randox and names are then randomly selected. The first ten names are selected for random drug and alcohol testing. All staff are included in the selection process, and I understand that even contracted staff are included.

A room is set aside on site for the testing to be conducted. A consent form is presented for signature. The double test is performed, and the results are immediately made known.

The Dublin Bus Alcohol and Drugs Policy booklet which was published in May of 2022 was opened to me in the course of the hearing. The booklet outlines the details and the expectations, and the Employer is confident that all the employees know or at least ought to know what was expected of them in the event that they were randomly selected. It is noted that at page 30 of the booklet there is a clear statement concerning the likelihood of disciplinary action in the event that there is a refusal to participate in an alcohol and/or a drug test.

On the 1st of July 2024, the Complainant was one of the employees at the Summerhill depot who was randomly selected for the on site testing to be conducted by the Randox operatives who had arrived on site that day for the purpose of conducting random testing.

The Complainant simply refused to engage in the process on that day. The Complainant seemed to think that the policy (which has been published and in place since 2022) did not apply to him. He gave evidence to me (which he also seemingly said to his Employer on that day) that he was only ever prepared to give samples of breath, saliva, blood and urine to the company CMO. This was the stance taken by the Complainant on that day and this is the stance from which he has not deviated up to the day of the hearing.

I accept that the Employer had no reason to believe that on the 1st of July 2024 the Complainant was in any way under the influence of drugs and or alcohol. This selection was entirely random and had the Complainant chosen to submit to the test, no more would have been said about it. On the day however, the Complainant simply refused to engage with the process,  and eventually walked out of the workplace.

I fully accept that the Respondent was bound to conduct a full-throated investigation into the Complainant’s actions, and it does not surprise me that this gave rise to a disciplinary process. In this regard, I heard the evidence of the Complainant’s Operations Manager (BF) who conducted the disciplinary meeting. It is clear to me that BF gave the Complainant every opportunity to mend his hand. It seems to me that the long service attaching to the Complainant stood for something. The Complainant was however adamant that he would not ever submit to a testing process conducted by Randox testing wherein a biological sample could be extracted from his mouth.

I could not understand what nefarious purpose the Complainant thought that his swab would be used for. The Complainant gave no particular reason. He was quite simply adamant that his DNA would not be extracted from him under any circumstances.

The Complainant proposed that he would only be happy to present to the CMO for testing. The Complainant could not see that it would be impossible to allow him to be singled out for some sort of special and bespoke arrangement where he would present to the CMO (somewhere off site) while all his colleagues were getting on the spot then and there testing done on site.

The Complainant was not happy that the workplace policies and practices had moved on since 2016 and that the Employer had devised a modern speedy arrangement with a third-party. I accept that the purpose of the change has only ever been to ensure that the objective of having the highest possible chance of keeping a workforce in a state of being sober and drug fee and ready to work is achieved.

On balance I am satisfied that the complainant’s Investigation and Disciplinary process was not tainted by any unfairness or unjust process. Unsurprisingly, the Complainant’s conduct was found to be gross misconduct, and the Complainant was dismissed on foot of that finding. This decision was not reversed on either of the two levels of Appeal afforded to the Complainant thereafter. I understand that, through the entirety of the process, the Complainant adhered to his principles and was not prepared in any circumstances to be subjected to the Randox testing process.

The Complainant asked that I recognise his Constitutional right to bodily integrity which is a concept I well understand. However, it is a well-established through judicial interpretation, that some rights might trump others depending on context. I am satisfied that the overwhelming need to keep the public (passengers, pedestrians and cyclists) safe, outweighs the Complainant’s sense of injustice that anyone would place a Q-Tip in his mouth to extract a sample.

I am accordingly not finding in the Complainant’s favour.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00068827-001 – the complaint herein fails. The Complainant was not unfairly dismissed.