A recent case involving A Worker v a Food Preparation Company (ADJ-00040574) before the Workplace Relations Commission relates to a decision by an employer to dismiss an employee who had drug paraphernalia in his possession on site and who witnesses claimed was smoking illicit substances in the workplace. The case demonstrates the importance of following procedures stringently, as well as having clear policies in place in relation to intoxicants.

Background

This case involves the alleged Unfair Dismissal of the complainant for serious breaches of the Respondent’s Intoxicants Policy. He was found to have drug paraphernalia in his possession at the workplace and witness statements were provided claiming that the complainant was using smoking illicit substances at the workplace.

Complainant’s Case

The complainant’s representation stated that there were evidential difficulties in the employer’s case. The CCTV footage from the Smoking Shed was never provided to the complainant. The complainant claimed he was not given a realistic explanation as to why he had been selected to be searched. The “grinder” which was given to the Gardaí had been lost. The allegations made by other staff were anonymous, therefore the complainant was unable to cross-examine the allegators. The complainant did confirm that he had been provided with copies of the witness statements but had lost them.

The complainant claimed that the “grinder” was used for CBD, which was “perfectly legal”. The complainant’s representation claimed that the complainant was completely denied the Rules of Natural Justice. Since, the allegations made against the complainant were anonymous, he was not afforded the right to cross examine.

The complainant’s representative also argued that there was a “much more serious offender”, Mr Z.

Respondent’s Case

The respondent recognised that illegal drug taking and trading was present in the Plant, therefore, in order to take the necessary steps to address the issue, they adopted a “Zero Tolerance” approach to all drug related matters.

There was fear among staff at all levels and the possible severe consequences of getting on the “wrong side” of some of the drug fraternity. However, they were prepared to give anonymous reports/tip offs to Management.

The respondent conducted a search of the complainant’s locker and person, along with other staff. A range of drug paraphernalia was discovered, one being a “grinder” which smelt strongly of cannabis was found in the complainant’s possession.

The Manager conducted a thorough investigation and interviewed a number of witnesses. When the complainant was interviewed, he claimed that the “grinder” was used for his CBD buds which were legal. Following further disciplinary meetings, the complainant was dismissed for being in possession of “drug paraphernalia” in breach of the Company Intoxicants Policy. The complainant appealed the decision but, the dismissal was upheld.

The respondent stated that the context was important in this case. The witnesses alleged that the complainant was seen smoking illegal substances in the workplace and was close to a well-known drug dealer Mr Z. When the latter employee was searched, he was found to be in possession of drugs, a grinder and a digital scale. However, at the time of the hearing, this employee was hospitalised as a result of being very seriously physically attacked outside the work environment.

The respondent was a major food business and all aspect of Health and Safety both in their product and for all employees was critical. The complainant had Drug Paraphernalia on his person and they claimed his dismissal was accordingly fair and proportionate.

Adjudication Officer Decision

The adoption of a Zero Tolerance approach towards drug use/sale on site, set out in a rigorous Intoxicants Policy is the only realistic policy to adopt. However, this does not allow an employer to ignore the rights of natural justice, and balance must be struck between what is reasonable and what an employer must do when faced with a community wide drug problem seeping into their workplace.

The CBD Buds medical defence did not happen until the formal investigation, and the offering to do a medical urine test came a few weeks later.

The inability to cross-examine the anonymous witnesses and the non-availability of the CCTV footage did not help the respondent’s case.

It was apparent to the adjudicator that unfortunately, the complainant seemed to be a lesser player in a wider drug scene. The adjudicator found that despite the anonymity of the witnesses, that fair procedures were followed by the respondent and the dismissal was not found to be unfair.

Key takeaways for Employers: Although the complainant was not afforded the opportunity to cross-examine the witnesses, the adjudicating officer believed that the context of the case was important.

It is essential that Employers have a rigorous Intoxicants Policy in place, including that any substances which affect your functioning must be made aware to the Employer, irrelevant of their legality.

Zoe O’Sullivan, Employer Relations Executive, Ibec