An Irish Rail worker who was fired after he was convicted of moving drugs in a company van has been awarded almost €50,000 for unfair dismissal by the Workplace Relations Commission.
In a decision published today, adjudicating officer Michael McEntee said that the tribunal was left to deliver a “Judgement of Solomon” in the case, after noting that rail bosses did not accept the findings of an internal investigation that the employee should not be dismissed.
The tribunal was told that on or around June 3, 2020, gardaí stopped the driver of an Irish Rail company vehicle, which led to the suspension of the employee. The employee then raised complaints of unfair dismissal, minimum notice and of payments of wages.
Mr McEntee noted that, after the complainant was stopped by gardaí and the company van he was in charge of was found to contain an amount of illegal drugs, he was prosecuted at the District Court where a “very minimal penalty” was imposed.
“It was important to note that the complainant had satisfactorily passed all employer drugs tests. He was not a ‘user‘ but had allowed a very difficult gambling addiction to allow unscrupulous others to intimidate him into allowing drugs to be transported in his company vehicle,” said Mr McEntee.
In outlining the background to his decision, adjudicating officer Mr McEntee said it was important to note that the case was “exhaustively investigated” by the Internal Grievance and Disciplinary Tribunal.
A period of “reflection” followed for both parties, wrote Mr McEntee, who noted that no progress had been made in the case, which then required an adjudicating officer from the WRC. The employee raised complaints of unfair dismissal, minimum notice and of payments of wages.
The adjudicator said that in his report, the [investigating] chairman determined that the sanction of dismissal be replaced by demotion to a lesser grade and that the period between the dismissal and the resumption of work be regarded as “a non-recoverable loss of income to the complainant”.
However, after consideration “at the most senior management levels”, Irish Rail stated they were invoking their rights, on grounds of safety, to not accept the chairman’s findings. The worker was then dismissed following this decision, Mr McEntee said.
The adjudicator wrote that Irish Rail’s representative was “extremely direct” in stating that there was “no possibility of the railway ever re-employing the complainant”. “Safety considerations were paramount and could not be set aside, or overlooked,” said Mr McEntee, quoting submissions.
Mr McEntee noted that the representative for Irish Rail had put “most strongly” that the safety implications of accepting the internal appeal findings were “so severe” that the employer had no option but to refuse to accept them, as passenger safety was the “paramount consideration”.
In his decision, Mr McEntee noted that the decision of the railway management not to accept the chairman’s findings “was only taken after very serious consideration”.
“In their view, they [Irish Rail] had to take a most serious step in rejecting the chairman’s findings, but it was driven by overwhelming safety considerations,” said Mr McEntee.
That the complainant was convicted in the District Court on two counts arising from the Misuse of Drugs Act could “never be ignored or forgotten about,” said Mr McEntee.
Mr McEntee stated that the employee “had been a pawn used by other very unscrupulous persons”.
“Regrettably and bearing in mind legal cautions regarding tribunals, or adjudicators seeking to replace employment decision-makers, it was left to the adjudicator, following the failure of the ‘period of reflection’, to come up with a ‘Judgement of Solomon’ in this case,” said Mr McEntee.
Mr McEntee noted that Irish Rail would not agree to any re-instatement or re-engagement, “not from any malice but from the safety considerations”.
He said the tribunal would endorse the report of the chairman of April 24, 2023, save that the redress would be altered from re-engagement to financial compensation.
The employee’s rate of pay was €900, gross, per week for a 39-hour week. His employment commenced on July 1, 1998 and ended on June 16, 2023.
Mr McEntee directed that €40,000 – approximately 44 weeks’ pay – was to be awarded to the complainant. “This payment is to be seen by both sides as a pragmatic ‘closure’ of the case,” Mr McEntee said.
As the dismissal was found to be unfair, eight weeks’ pay of €7,200 in minimum notice was also awarded.