Facts: Eduard Markovskij, the Complainant, commenced employment with Suretank Limited, the Respondent, on the 29th of August 2007 as a welder. His average weekly net pay was €693.80. He reported for work at Depot 1 on 14th September 2020 at 2pm. He met Manager A who sent him to Depot 2. This was not out of the ordinary for the Complainant. When the Complainant arrived at Depot 2, the manager there, Manager B, formed the view that the Complainant was unsteady, smelled of alcohol and appeared to be under the influence. Manager B contacted Manager A, who drove to Depot 2 to observe the situation for himself. He stopped in a pharmacy on the way to purchase an alcohol testing kit, but they were out of stock.

When Manager B arrived, both managers took the Complainant into a Portacabin office. They asked if he had taken any alcohol or drugs. The Complainant replied that he had two beers the previous night and had not taken drugs. The managers decided that he was unfit for work and he was driven home. The Respondent asserts that the Complainant agreed that he was unfit for work.

An investigation meeting was held the following day. Here, the Complainant was asked to take an alcohol test, and he said he would as long as it was carried out by a doctor. The company’s doctor was unavailable, and Manager A said that he did not consider calling another doctor. At this meeting, the Complainant admitted that he had drank a beer the morning of the incident as the water had been turned off in his estate.

This investigation meeting resulted in a disciplinary hearing where the Complainant was dismissed for gross misconduct. The Complainant lodged an appeal that was heard remotely on the 15th of October 2020, where he was accompanied by a Trade Union representative who said it should be noted that the Complainant had worked 13 days straight before the date of the incident, the 14th of September, and as a result had to use sleeping tablets occasionally. The Respondent asserts that the Trade Union representative refused to let the Complainant answer any questions. The Respondent then hired an independent HR company as a third party.

The Respondent maintains that the Complainant refused to engage with the HR consultant. The consultant then heard the appeal in absence of the Complainant and upheld the decision to dismiss. The Complainant lodged a complaint with the WRC on the 25th November 2020.

The Complainant points out that when he reported for work at 2pm on the 14th of September, no one noticed anything unusual about him. He provided no direct evidence but answered questions, and asserts that he drank too much red bull on the morning of the incident, did not consume alcohol and was fit for work but agreed to go home because he was dizzy and not feeling himself. The fact of dismissal is not in dispute, but the Respondent must show that dismissal was fair.

Decision: The Adjudication Officer, John Harraghy, clarified that it was not his responsibility in this case to establish the guilt or innocence of the Complainant but to consider the reasonableness of the Respondent’s decision under the circumstances. Th Adjudicator noted that while the Respondent had partly followed its Drug & Alcohol Policy, it did not produce anything of evidential value other than the opinions of two managers. He criticised the Respondent for not arranging for the Complainant to be tested under the supervision of a medical practitioner and informing the Complainant that he had no need to contact his trade union representative. The Adjudicator found that the investigation was also flawed as it was conducted by the two managers who formed the view that the Complainant was intoxicated and were both therefore investigating their own complaints and they were witnesses. He found that it was fine for them to do the initial investigation that determined for the Complainant to go home but an independent investigation should then have taken place.

In respect of the Disciplinary process, the Adjudicator found that it was a breach of fair procedures that the Complainant was never informed that he could be accompanied by his trade union representative to the disciplinary hearing, although he was informed that he could be accompanied by an employee representative. It was also held that the Complainant should have been informed of his right to cross-examine witnesses at the disciplinary hearing and he should have had more than 2 days to prepare for the disciplinary hearing in such serious circumstances.  Furthermore, the Adjudicator held that the appeal process was not concluded properly.

Although the Complainant repeated his admissions at the WRC hearing in relation to drinking alcohol the night before and the morning of the incident, the Adjudicator held that there was no evidence to confirm that the Complainant was under the influence of alcohol. Due to this and the breached in the procedure, the Adjudicator found that no reasonable employer would have dismissed the Complainant in the circumstances and that the dismissal was unfair. He accepted that the Complainant contributed to the situation and his explanations lacked consistency. The Adjudicator also found that reinstatement and re-engagement were not viable options.

The Complainant submits that he made attempts to find employment during the Covid-19 crisis and secured employment on 09/11/2020.  This was a period of six weeks and three days from the date of dismissal.  The Adjudicator estimated the loss for this period of time as €4,579.08. The Complainant was on a lower salary in his new job and therefore incurred a further loss of €5,767.41. The Adjudicator also took into account that the Complainant had 13 years of service with the Respondent and would have a prospective loss of rights to any future redundancy situation, which he estimated a loss of €4,500. He was awarded €15,000 in total. The Adjudicator stated that this award reflected the Complainant’s lack of efforts to mitigate his loss and his contribution towards his dismissal, indicating that he would have granted a higher award otherwise.

Takeaway for the Employers: Employers should be aware of the importance of carefully following the Drugs & Alcohol Policy from the minute an employee is suspected of being under the influence and ensure that all managers are fully aware of this procedure and what they are to do. This decision seems to state that testing by medical practitioner is required even where there is an admission to consuming alcohol as the admission does not itself determine the fitness to work. Gross misconduct has a high bar for employers to prove they followed fair procedures throughout. However, the award and the testing requirement seem to be excessive in the circumstances and it will be interesting to see if this decision is appealed.

Link  – https://www.workplacerelations.ie/en/cases/2021/august/adj-00030956.html

Authors – Anne O’Connell and Hannah Smullen