Background

This case involved a complaint by Mr Eduard Markovskij (hereinafter referred to as “the complainant”) against his former employer Suretank Limited (hereinafter referred to as “the respondent”), under section 8 of the Unfair Dismissals Acts 1977 – 2015.

The complainant commenced employment with the respondent as a welder on 29 August 2007 and worked between two of their depots in Louth. On 14 September 2020, the complainant was alleged to have presented at work under the influence of intoxicants. Following a disciplinary procedure, he was dismissed for gross misconduct.

 

Respondent’s Case

The respondent submitted that on 14 September 2020, the complainant had presented at work and “was unstable and appeared to be under the influence of either alcohol or drugs”. He was subsequently brought into a portacabin by two of his managers (Manager ‘A’ and Manager ‘B’) and it was concluded that he was unfit for work. Both managers agreed that he appeared drunk and that he was “unsteady on his feet” and “staggered against Manager B”. The respondent had attempted to purchase an over-the-counter intoxicants test at the local pharmacy, but there were none available.  Manager A then drove the complainant home.

An investigation meeting was held the next day and it was alleged that the complainant was unfit for work the previous day because he was drunk.  Before the meeting, the complainant allegedly admitted to attending a party the night before the incident and said that he woke up at 6.30am and he had a beer as there was no water in the house. He agreed to be tested by the company doctor in line with company policy, but the doctor was unavailable. The respondent asked if he would allow someone else administer the test, but the complainant refused unless it would be a GP. Following the investigation, the respondent upheld the allegation despite no test having been taken because he was “under the influence of something” and he was suspended with pay.

On 23 September 2020, the complainant attended a disciplinary meeting. He was furnished with copies of the relevant policies and also copies of all notes and reports relevant to the matter in hand. He was advised that he could bring a work colleague and he did so. Following this meeting he was advised by letter on 25 September that he was “being dismissed with immediate effect for an irrevocable breach of trust and a serious breach of Health and Safety, particularly when his role involved operating machinery.”  He was advised of his right to appeal and the process for doing so was also confirmed.  The complainant appealed the decision, and he was advised of his right to be accompanied by a trade union representative.  The appeal was heard remotely on 15 October and the decision to dismiss was upheld.

The respondent’s representative summitted that employers are obliged to provide a safe working environment in accordance with the provisions of the Safety, Health, and Welfare at Work Act 2005.  This Act also places an obligation on employees to ensure that they are not under the influence of any intoxicant, to the extent that they would endanger their own health and safety at work or that of any other person.

It was also submitted by the respondent that the case of Trevor Kennedy v Veolia Transport Ireland UD 240/2006 was relevant. In that case a Luas driver failed a random breathalyser test and was dismissed following a disciplinary hearing. The testing was conducted by a bio-scientist from an independent testing contractor. He refused to provide a confirmation urine test and produced medical certification stating that he had gastroenteritis. The Employment Appeals Tribunal (EAT) found that it was “reasonable” that the complainant should have allowed a urine test following the positive initial test and this refusal was in breach of company procedures. His claim for unfair dismissal failed.

 

Complainant’s Case

The complainant stated that he had arrived in to work on the day in question and that both Manager A and Manager B had believed that he was under the influence of either alcohol or drugs, but that another colleague had not noticed anything unusual about him. When asked if he consumed any intoxicants, the complainant stated that he had “two root beers” the night before and denied taking any drugs.

The investigation meeting that was held on September was conducted by Manager A and Manger B, both of whom had made the allegations that the complainant was under the influence of alcohol or another substance the previous day. At the investigation meeting, he was asked if he would be willing to take a test and he said he would. Manager A then presented the complainant with a breathalyser test and the latter indicated that it would be his preference to have such a test undertaken by a medical practitioner. He requested to speak with a union representative or legal advisor but was told that that would not be necessary. He was asked if he was fit for work on 14 September 2020 and he stated that he was. He was asked again about the breathalyser test, and he confirmed that a member of the Gardaí or a doctor could administer the test. The HR manager contacted the company doctor, but he was not available. At the end of this meeting the complainant was given a letter by Manger A which informed him that he was now suspended pending the outcome of the investigation.

The complainant submitted that it was not possible to prove that he had been under the influence of alcohol or other substance as the respondent failed to enact their own policy and carry out a test by or under the supervision of a registered medical practitioner. He further submitted that both managers could not determine if what they were observing was the result of a combination of high blood pressure and excessive caffeine or other medical condition. The complainant pointed to the respondent’s Drugs and Alcohol Policy which states the following:

 

“The company may carry out alcohol and drug testing which may be required on health and safety grounds out of our duty of care towards customers, employees, contractors and any other third parties.  Failure to comply with such a request may be treated as an act of gross misconduct and may result in your dismissal.  Also, failure to pass such a test may be treated as an act of gross misconduct and may lead to your dismissal following resource to the Company’s disciplinary procedures.

 

The Safety, Health and Welfare at Work Act, 2005 states that if reasonably required by his or her employer, an employer must submit to any appropriate, reasonable, and proportionate test for intoxicants by, or under the supervision of, a registered practitioner.  The organisation therefore upholds its legal right to conduct a testing for intoxicants in the following situation …”

 

It should also be noted that when the Complainant was cross-examined at the adjudication hearing, he did confirm that he was unfit for work on 14 September^.  However, he claimed that this was because he had worked for two weeks straight without a day off and had consumed a significant amount of Red Bull before he arrived in to work. He further stated that he had not consumed any alcohol, but then contradicted this when he stated that he drank a beer in the morning as the water supply in his estate was off that morning. He concluded by saying that he had never admitted to being drunk.

 

Decision

In his decision, the Adjudicator issued a scathing review of the procedures utilised by the Respondent and was also highly critical of the way in which they departed from their Drugs and Alcohol Policy. He stated the following:

 

“The allegations against the complainant were very serious and would have important implications for both the respondent and the complainant. Trust is an essential component of all employer/employee relationships. The respondent had a duty to deal with the incident which presented on 14/09/2020. It is clear that a policy and procedure existed for such an eventuality. While this was followed in part it still did not produce anything of evidential value other than the opinions of two managers. It is unclear what the purpose or intention of Manager B was in relation to an over-the-counter test and what procedures were to follow in the event of a positive reading….

 

…Arising from this incident an investigation process was set up immediately. The investigation meeting was held the following day and it is clear that further concerns arose in relation to the complainant at that meeting. However, a decision was made by Manager B to proceed with the investigation meeting and the complainant was asked to undertake a test during that meeting on a testing kit produced by Manager A. The complainant was not advised in advance that this would be done and his reluctance to undertake the test by someone who was his manager and now notetaker at the investigation is understandable. His position that he would take the test by or under the supervision of a medical practitioner was an adequate response in view of the fact that he was also told that he did not need to contact his trade union or legal representative. Regardless of the intention, this action denied him the right to such representation at that meeting. The hearing was not given any rationale as to why the meeting could not have adjourned at that point.

 

It is clear that the investigation process was conducted by Manager A who made the complaint.  What is not clear is who was responsible for instituting the investigation and what, if any, were the terms of reference.  From the evidence adduced it would appear that the investigation was in some way instigated by HR but not overseen by HR. It is incredible that Manager A who was a witness to the incident was asked by Manager B to be the note taker at the investigation meeting.  Manager B was also a witness to the incident. The investigation process did not produce a report of their findings. There was evidence that minutes were produced in addition to the notes of the initial incident which were entirely compiled by Mangers A and B. They were, as a matter of fact, investigating their own complaints. The respondent’s own submission clearly states Manager A and Manger B brought the complainant into a portacabin “and came to their own conclusion he was under the influence of alcohol.” There was no independent investigation of this matter by the respondent. The Latin maxim “Nemo judex in causa sua” [no-one is judge in his own cause] is a fundamental principle of natural justice and is most appropriate in this instance. I find that there was no independent investigation in this case which led to the dismissal of the complainant.”

The dismissal was subsequently found to be unfair, and the Adjudicator made an award of compensation to the value of €15,000.

 

Read the full decision here

 

If we compare this case with the seminal case involving The Irish Aviation Authority v Christopher Reddin, UDD1710 2017, we can see what is expected of employers when manging the alleged misuse of intoxicant in the workplace. In this case, the employee was employed as an Airport Traffic Controller with the respondent. In July of 2015, the employee was asked to take a blood test on suspicion of attending work under the influence of alcohol. The test proved positive, and the employee was suspended from duty on full pay. In September he attended a disciplinary hearing and was later summarily dismissed. He appealed the decision; however, the decision to dismiss was upheld. The employee took a case for unfair dismissal to the Workplace Relations Commission where the Adjudication Officer found the dismissal to be fair. The employee then appealed this decision to the Labour Court.

The employer in this instance had a Managing Workplace Intoxicants Policy which was coupled with its Protocol on Random Testing for Workplace Intoxicants. Both policies were agreed with the Trade Unions and applied to all staff. In the case of Mr Reddin, both policies, along with the respondent’s Disciplinary Policy were followed without fault. It was accepted by the complainant that he received fair and correct procedures.

The Court was satisfied that the employer had in place a best practice approach to alcohol and drug dependency which was based on international best practice. The Court relied upon the employer’s policy which clearly states that attending the workplace while under the influence of drugs and/or alcohol is gross misconduct subject to a sanction of summary dismissal. Therefore, the Court took the view that it was reasonable in the circumstances to dismiss the employee when he presented for work substantially over the alcohol limit. In addition, it was noted that the employer was steadfast in its approach to the safety and health of its employees and users and had in place clear policies and protocols to encourage compliance with its commitment to have a workplace free of intoxicant use/abuse.

 

Key Takeaways

There are two key takeaways from this case.

The first is clearly the importance of adhering to fair procedures. The Adjudicator was quick to acknowledge the seriousness of the situation with which the respondent was presented on 14 September 2020. However, this was no excuse for their complete failure to adhere to the general principles of natural justice and fair procedures as they are set out in S.I. 146 of 2000. In particular, it is clear that the complainant was not given a “fair and impartial determination of the issues concerned” nor was he afforded “right to be represented” during the investigation. Furthermore, the appeal process used by the respondent was highly flawed and not concluded in an appropriate manner.

The second key takeaway is the importance of adhering to your company policies and procedures. The respondent in this instance had a Disciplinary Policy and a Drugs and Alcohol Policy which clearly allowed for employees to be tested, provided it was done so by a medical professional. However, the respondent departed from both these policies in quite spectacular fashion. This demonstrates that simply having a robust policy in place is not enough and that employers should always ensure that staff members are adequately trained and well equipped to administer the policies which govern their workplace.

 

Paul Crowley, Employer Relations Executive, Ibec Knowledge Centre