WRC upholds dismissal of employee who operated machinery after taking Xanax | Fieldfisher
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WRC upholds dismissal of employee who operated machinery after taking Xanax

Barry Walsh



The circumstances in which a dismissal of a long serving employee is likely to be deemed fair are illustrated in the recent case of A Warehouse Operative v A Retailer (ADJ-00033182).
The Complainant ("employee"), a Warehouse Operative, had approximately 12 years' service.

In August 2020, the Complainant indicated to his line manager that 5 days earlier he had taken prescription medication (Xanax) whilst on site and operating machinery. Xanax is a prescription drug, used to treat anxiety and panic disorders. The employee was suspended on full pay pending an investigation. 

During the investigation, the employee admitted that he had taken two Xanax, one before his shift at 6:00pm and the second while at work at 9:30pm and that he had operated machinery while under the influence.

The Complainant accepted he had acted in breach of his health and safety obligations for which he apologised and put forward several points in mitigation.

Ultimately, the Respondent felt that the bond of trust between employer and employee was fundamentally broken, leaving no choice other than dismissal. 

It is noteworthy that the employee already had a previous final written warning on file as a result of covering CCTV cameras in a small room used by delivery drivers during the day.

WRC considerations
The WRC Adjudicator noted that he had to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair. 

It was stated that the function of the Adjudication Officer was to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this was the standard by which the Respondent’s actions must be judged.

The Adjudicator criticised the Complainant for taking two Xanax tablets within 8 hours of one another during his shift and that he was not fit to operate machinery as a result of having done so. In this regard, the Adjudicator referred to the Complainant's statement that “humans don’t read paper inside medication” which the Adjudicator found to be an "extraordinary assertion".

WRC's findings
The Adjudicator found that the Complainant was afforded a full investigation, given an opportunity to respond to its findings, provided with full rights of appeal and given the opportunity to be accompanied by his union official at every stage of the proceedings. Notably, the Respondent received advice during the investigation from its medical advisor on the effects of Xanax.

Notwithstanding that the Adjudicator accepted that the employer's decision was arguably “harsh and unsympathetic”, having found the Complainant to be a “decent human being” and an “honest and credible witness", the Adjudicator held that the dismissal was substantively and procedurally fair.

In doing so, the Adjudicator applied the standard from commonly cited Employment Appeals Tribunal (EAT) case of Looney and Co Ltd v Looney UD 843/1984 which stated that “It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

As an interesting aside, given the Complainant’s sensitive medical condition, the Adjudicator decided to unilaterally anonymise the names of the parties.

Written by: Greta Siskauskaite and Barry Walsh


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