A Commercial State Body (Represented by Irish Business and Employers' Confederation) v A Worker (Represented by Services Industrial Professional Technical Union)

 
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Labour Court (Ireland)

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UD/17/41

DETERMINATION NO.UDD1815

ADJ-00003033 CA-00004101-001

PARTIES:
A Commercial State Body (Represented by Irish Business and Employers' Confederation)
and
A Worker (Represented by Services Industrial Professional Technical Union)
SUBJECT:
1

1. Appeal Of Adjudication Officer Decision No: ADJ-00003033 CA-00004101-001.

BACKGROUND:
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2. The Employer appealed the decision of the Adjudication Officer to the Labour Court on 15th March 2017 in accordance with Section 9 (1) of the Unfair Dismissals Acts, 1977 to 2015. A Labour Court hearing took place on 1st February 2018. The following is the Court's determination:

DETERMINATION:
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This is an appeal by a Commercial State Body against the Decision of an Adjudication Officer ADJ-00003033, CA-00004101-01 under the Unfair Dismissals Acts 1977 – 2015 (the Acts) in a claim made by a Security Employee against his former employer. By Decision dated 1 st March 2017, the Adjudication Officer held that the complaint was well-founded and awarded re-instatement.

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For ease of reference the parties are given the same designation as they had at first instance. Hence the Security Employee will be referred to as “the Complainant” and the Commercial State Body, will be referred to as “the Respondent”.

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The Complainant referred his case to the Workplace Relations Commission on 27 th April 2016. On 15th March 2017, the Respondent appealed the Adjudication Officer's Decision. The appeal came before the Court on 1 st February 2018.

Background
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The Complainant was employed as a Search Unit Officer by the Respondent from 27th August 2001 until his dismissal on 19th February 2016. He was initially employed as a Catering Assistant and was transferred to the Search Unit in 2007. He was paid €718.71 per week. The role of a Search Unit Officer involves inspection and screening of people and baggage in order to prevent the passage of prohibited items into a sterile (secure) area of the infrastructure. Search Unit Officers have responsibility to prevent ‘prohibited items’ from passing through the security layer, and if they come across an illegal drug or suspicious substance in their search for the prohibited items, they are obliged to report it to the civil authorities.

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The Respondent is a commercial state body with over 260 employees. It is highly regulated and stringently audited environment where security is governed by EU Regulations.

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On 18th January 2016 the Respondent had a meeting with the Complainant to discuss performance and behavioural standards at work. At the meeting the Complainant reported that he had been suffering from lower back pain and he agreed to undergo a medical assessment, including a drug test with the Respondent's independent medical services provider. The assessment took place on 26th January 2016. A copy of the medical report was issued to the Respondent on 4th February 2016, which deemed him fit to return to work from the perspective of his musculoskeletal complaint, it also informed the Respondent of the presence of an illegal drug (cannabis) in his system. On 6th February 2016 the Complainant was suspended from work, with full pay, He attended a disciplinary meeting with management on 8th February 2016, conducted by Mr E, Human Resources Manager and Mr F, Chief Officer — Security. The Complainant was accompanied by his union representative.

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The Complainant and his union representative attended a follow-up disciplinary meeting on 15th February 2016. At this meeting the Complainant informed management of his opinion on the use of cannabis for medicinal use and his intent to continue to use the drug.

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By letter dated 18th February2016 the Complainant was informed of the Respondent's decision to dismiss him on the grounds of gross misconduct, with immediate effect. The reasons given for the dismissal were as follows:-

• • his support for the use of cannabis for medicinal use;

his role as a Search Unit Officer involved the use of technical equipment and image interpretation screens that monitor the public's bags;

his role also involved the sensitive area of personal searches;

lack of trust in him to fulfil his duties to the required level;

his passionate advocacy of an illegal drug and his declared position as a cannabis activist;

his continuing use of the drug had compromised his role as a security agent; and

lack of commitment from him to reduce or cease use of cannabis.

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The letter stated that the Respondent considered the option of transferring him to another area but decided that that was not a reasonable solution.

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The Complainant was offered the right of appeal, which he later invoked. An appeal hearing was held on 4th March 2016. The Complainant was accompanied by his union representative and a union branch official. The Respondent's Operations Director and Group HR Director were in attendance. The grounds of the appeal put forward by the Complainant were as follows:-

• • his performance was always above average and he had no disciplinary record;

his security work was never compromised by any activity outside of work;

he appealed to the Respondent to facilitate him to enter a drug rehabilitation programme and to deploy him to any other area of work while on the program.

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By letter dated 9th March 2016 the Complainant was informed that his appeal was not upheld. The Respondent gave the following reasons:-

• • the grounds of his appeal did not ease the concerns of the Respondent regarding his behaviour at work;

he placed the blame for his irrational behaviour on the work environment and his supervisor;

the loss of trust by the Respondent in his ability to perform his duties;

his security critical role was compromised;

he had not commenced a drug rehabilitation programme despite his stated intention to do so as set out in his letter of appeal nor did he have details of any such programme at the appeal hearing and did he accept that a drugs rehabilitation programme was a viable course of action for him.

Summary of the Respondent's Position
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Ms Nicola Harkin Solicitor, Ibec, on behalf of the Respondent submitted that substantial grounds existed to justify the Complainant's dismissal. The Complainant was dismissed by the Respondent for gross misconduct, for his continuing procurement and use of an illegal drug and the conflict between his advocacy of that illegal drug and his role as a Search Unit Officer. She contended the fact that the Complainant had failed a drug test and admitted to the use of an illegal drug to the doctor during the medical assessment was testimony to that assertion. Ms Harkin stated that the reason for the medical assessment was because of the Respondent's concern regarding the Complainant's behavioural standards at work. She said that the drug test failure raised the concern of management, the Respondent no longer had trust in the Complainant to fulfil his duties to the required level, given the fact that questions arose in the context of its “Substance Abuse Policy” and the safety sensitive context of the Complainant's employment in the Search Unit.

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Substance Abuse Policy: The Policy strictly prohibits the possession, use or supply of illicit drugs. It states that refusal to attend medical examination or refusal to consent to the Human Resource Department being advised of the results of the medical examination could lead to disciplinary action up to and including dismissal. It provides the right to search employees/their property. Furthermore, it provides for the screening of employees to determine if there is a presence of intoxicants in the body, which may lead to disciplinary up to and including dismissal. The Policy provides specific provision for the screening of employees in safety sensitive positions, which include security operations.

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Ms. Harkin said that at no point in the disciplinary process did the Complainant concede that he had a problem or difficulty with an illegal drug and in fact, the Complainant could see nothing wrong with this behaviour. She said that the grounds put forward by the Complainant for the appeal included a request to be facilitated to enter a drug rehabilitation programme and to deploy him in another area of work while on the programme, however, this did not ease the concern of the Respondent regarding...

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