Background to the case

The worker was employed as a General Labourer from January 2014 to October 2015 when he was dismissed for gross misconduct on 5th October 2015. 

A complaint of unfair dismissal was lodged which was adjudicated at the WRC in February 2017. The claim for unfair dismissal was upheld and an award of €12,500 was made in the claimant’s favour but on appeal to the Labour Court in January 2018, a contrary view was taken and the decision to dismiss was upheld.

The facts and issues recited before the WRC and the Labour Court were essentially the same but the outcomes diametrically different. The salient points of the final decision were perhaps explained by the significance placed on exhausting internal procedures and the consideration of the employer being placed at the level of what a reasonable employer might do, as distinct from requiring the employer to establish guilt or innocence to a higher standard.

Outline of the case before the WRC

It was alleged that on the 19th September 2015, the Night Shift Supervisor in the Respondent Company was notified of a car being driven erratically on site and that the driver of that car was the claimant who had arrived 20 minutes late for work.  The employer’s Process Manager observed the employee “looking different than usual” and brought him to see the Night Shift Supervisor, who considered that the employee was unable to walk properly and would not make eye contact. The employee was subsequently removed from the production floor and brought elsewhere to talk.  It was alleged the employee became aggressive when questioned about his late arrival and that the Night Shift Supervisor detected a smell of alcohol off him. The employee was questioned as to whether he had been drinking, something which he later admitted - “yes, about four hours ago”.  The employee was suspended with pay on 21st September 2015 and invited to an investigation meeting on 24th September 2015 but submitted a medical certificate from 19th to 25th September 2015 indicating that he would be unfit to attend. He did, however, attend a meeting on 25th September.

At the investigation meeting, it was submitted that the claimant agreed he had been asked whether he had drunk alcohol before his shift and that he had agreed that he “probably” told the Night Shift Supervisor that he had been drinking but that this was not true. The claimant alleged this had been said in anger and that he had only taken herbal drops to manage stress. He argued he did not smell of alcohol but rather of “alcohol prescribed medication”. The employee was asked to provide his GP prescription and was invited to present medical evidence at the disciplinary hearing. He was notified by letter of 25th September 2015 of a disciplinary hearing scheduled to take place on 1st October 2015. Following that hearing the claimant was notified of his dismissal by letter of the 5th October 2015.

The company relied on the nature of the work requiring the highest standards of hygiene and health and safety and that being under the influence of intoxicants the employee had placed himself and his colleagues at risk.

The employer also relied upon the guiding principles in Looney & Co. Ltd –v- Looney [1] -

“it is not for the Tribunal to seek to establish the guilt or innocence of the claimant, 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.  Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at the time would have done and decided and to set this up as a standard against which the employer’s actions and decision be judged.”

And that furthermore the claimant had never appealed the decision to dismiss when there was an obligation to do so and the case of Pungor –v-MBCC Foods (Ireland) Limited[2] was cited. At the adjudication the claimant submitted that he had not appealed the decision to dismiss him as he felt there would be no point or merit in doing so.  His WRC complaint form attached a letter from his doctor confirming that he had been attending his GP since August 2015 and that he was taking some “herbal medication to help him sleep.”

The Adjudicator placed emphasis on the sequence of events and whether they demonstrated a paced and timely deliberation of the issues. The Adjudicator concluded that they did not show proper consideration of the issues and was satisfied that the outcome had already been predetermined prior to the completion of the investigation meeting.

The Adjudicator remarked on the timing as notice of the disciplinary hearing was issued on the same day as the investigation meeting and prior to the receipt of the medical report from the claimant’s GP. The letter of dismissal advised “I can only believe that you were intoxicated by alcohol.” The Adjudicator criticised this evaluation and analysis by the employer. The investigation conducted by the employer into the product that the employee had admitted to taking, and the merits of his explanation that these drops explained any suspicion of being under the influence of alcohol, was limited to the smelling of the sample and a brief discussion about the ingredients including alcohol. It was unclear what had happened to the bottle afterwards and whether it had been retained by the employer as claimed by the employee. The Adjudicator found it significant that the employer had failed to properly consider the evidence presented by the claimant.

The claim then came before the Labour Court in January 2018 by way of appeal.  The fact of dismissal was not in dispute and the circumstances of the case outlined in before the WRC do not require repetition, save that before the Labour Court more emphasis appears to have been placed on the involvement of the Gardaí that night.

Objections were raised by the claimant at the appeal as to the objectivity and impartiality of the person who conducted the disciplinary hearing; the contradictions between the appeal process as outlined in letters to the claimant and those in the employment handbook and contract of employment.  These issues were ultimately not considered to be material by the Labour Court.  The Labour Court considered the conflicts of evidence, noting that some facts were not in dispute, such as the claimant had arrived for work late that day and the manner of arrival had resulted in the attendance of An Garda Siochána following a complaint from a member of the public.  Ultimately on the facts, the Labour Court found that it was not credible that the complainant would not have mentioned the taking of herbal medicine on the night of the incident and it was not credible that he would have instead admitted, even in anger, to have taken alcohol.

The Labour Court was satisfied that the investigation and disciplinary procedures were distinctly and separately completed. It stressed that at both stages the claimant had been offered representation but declined.  The Labour Court considered the claimant’s submission that he was not offered the opportunity to cross-examine witnesses but noted that no contention was made that he had sought such a facility at the time. The Labour Court did not find that to be a failing in regard to the circumstances of the case. 

The Labour Court found on the balance of probabilities that the claimant had attended for work under the influence of alcohol. Subsequently, following investigation and disciplinary procedures that were deemed to be fair, the decision to dismiss was proportionate and within the range of responses of a reasonable employer.

The Court also placed considerable emphasis on the failure to exhaust available internal procedures and this, together with the “reasonable employer approach”, led to the WRC Adjudication being overruled.

https://www.workplacerelations.ie/en/Cases/2018/February/UDD1812.html