ADJ-00040574 - Workplace Relations Commission A Food Worker v A Food Preparation Company.

• Jurisdiction: Ireland
• Judgment Date: 29 November 2023
• Court: Workplace Relations Commission
• Hearing Date: 02 June 2023
• Docket Number: ADJ-00040574
• Respondent: A Food Preparation Company.

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00040574

Parties:

	Complainant	Respondent
Anonymised Parties	A Food Worker	A Food Preparation Company.

Representatives Mary Duffy-King of SIPTU (Retired) Robin Hyde of Alastair Purdy and Co

Complaint:

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-00051784-001	19/07/2022

Date of Adjudication Hearing: 02/06/2023

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Affirmation / Oath was administered to all witnesses presents. The legal perils of committing Perjury were explained to all parties.

In relation to Confidentiality the Adjudication Officer chose, having heard the evidence and proceedings, to invoke his powers under Section 8 (6) of the Unfair Dismissals Act,1977 and anonymise the Decision. This decision was taken having regard to the Personal safety issues of Personnel and the Physical Security of the Respondent operation.

Background:

The issue in contention was the alleged Unfair Dismissal of the Complainant for serious breaches of the Respondent Intoxicants Policy. The Employment had begun in November 2020 and ended on the 12th April 2022. The Rate of Pay was stated to be € 670 Gross for a 40-hour week.

1: Summary of Complainant’s Case:

The Complainant gave an oral testimony supported by a Written Submission. His spokesperson was Ms Duffy King, retired SIPTU Official. In essence, his case was that on the 24th February 2022 he was alleged to have been smoking an illicit substance in the Smoking Shed. This was witnessed by other staff and his presence in the Shed was visible on the Company CCTV system. Other staff members were also seen in the Shelter and some of these were also interviewed. At approximately 18:30 that evening he was approached by Management. His locker and internal work coat were searched, and a “grinder” was found in his pocket. He was told that he would be suspended as the grinder was deemed to be “drug paraphernalia”. On the 1st March 2022, Mr F, Manager, wrote to the Complainant inviting him to an investigation meeting on the 11th March 2022. The Management in the meantime carried out a number on interviews with other staff. In the 11th March meeting, the Complainant stated that he was using a CBD Bud, a legal substance that smells like Cannabis. A Disciplinary meeting took place on the 5th April and a follow up meeting on the 11th April 2022. At this later meeting he was informed that he was being dismissed. An Appeal Hearing was held on the 29th April 2022 and the dismissal confirmed on the 25th May 2022. In her Arguments Ms Duffy King pointed to what she called major evidential difficulties in the Employer case. First the CCTV footage of the Smoking Shed was never provided to the Complainant. There was no realistic explanation given as to why he had been selected to be searched. There were other staff also in the Smoking Shed at the time. The “Grinder” had disappeared – it was given to the Gardai but was now, apparently, lost. There were staff, who made anonymous allegations, that the Complainant had never been able to cross examine. It was accepted that the Employer had provided copies of all statements to the Complainant but due to “anxiety and stress” he had lost them. Ms Duffy King cited case law and SI 146 of 2000 – Code of Practice on Disciplinary and Grievance Procedures in support to the case that the Complainat was completely denied Natura Justice and was “run out” of the Company on Unreasonable and Unwarranted Grounds. She cited Looney v Looney UD843/1984, Beachside t/the Park Hotel and Bank of Ireland v Reilly [2015] 12 IELJ 72 in support of her case regarding Natural Justice. The Complainant was cross examined by Mr Hyde for the Respondent. He was questioned why he had remained silent regarding the CBD uses of the Grinder at the time of the Discovery and why he had waited some considerable time to volunteer/request a Urine test for Narcotics. Mr Hyde maintained that the entire response from the Complainant was evasive. The Complainant maintained that he suffered from severe anxiety issues, well known to his GP, and his reactions had to be seen in that light. CBD was perfectly legal, but this had been ignored. Ms Duffy King also, in oral evidence, referred to a Mr Z, a possibly much more serious offender and that the Complainant had been made guilty by simple association with Mr X. Fear and intimidation of workers and their families could not be discounted.

2: Summary of Respondent’s Case:

The Respondent gave Oral Testimony from several Managers, supported by a Written Submission. The chief Spokesperson was Mr Hyde, Solicitor of Purdy and Company. In opening background, the Respondent explained that the Respondent was a large employer and a well-recognised food Brand in the Dublin area. Product Food Safety was critical as was the safe operation, for all concerned, of a large plant. Unfortunately, by 2022, it was recognised that illegal drug taking, and trading was present in the Plant. Management was faced with no option but to take whatever steps necessary to address this issue and had adopted a very vigorous “Zero Tolerance” approach to all drug...