Transport company worker fired after failing drug test to be re-employed

FOR the second time in two weeks, an industrial relations body has ruled in favour of a transport company employee who failed a drugs test in the workplace.

In the latest case, the Labour Court ruled a maintenance worker for the Luas should be re-employed after he was dismissed for testing positive for a cannabis-related substance.

The worker was employed by Alstom Ireland, the French-owned multinational which maintains the Luas system, for two years before he was dismissed in September 2006 after residue of cannabis was detected in his system. He had been randomly tested as part of the company’s drug and alcohol at work policy.

The worker’s union TEEU argued the level of the banned substance for which the worker was found to have tested positive, was of such a low percentage that the test should properly be classified as negative.

According to Industrial Relations News, it said the internationally-agreed level for “zero tolerance” with cannabis tests was actually 15 NG/ml, while the worker tested at 8.6 NG/ml.

In that regard, it said, the reading was in fact negative and he was wrongly accused and unfairly dismissed.

The union also argued that no code of practice on drug and alcohol testing, as required by the collective agreement between the parties and with reference to the Railway Safety Bill 2005, has been adopted.

However, the company argued the worker was fairly dismissed given its policy on drug testing, which was agreed with the union as part of a collective agreement negotiated in November 2005.

It said the worker was employed in a safety-critical role which could not be carried out under the influence of banned substances and it had to ensure its operations were governed by the strictest safety policies in line with its legal requirements. Finally, the company argued all aspects of its disciplinary process were conducted in line with the principles of natural justice and it had a zero tolerance policy in regard to testing for intoxicants.

The Labour Court said it was satisfied the company acted “honestly and reasonably” in dealing with what was reported to it as a positive result for a prohibited drug. However, it said: “In the court’s view, in all the circumstances of this case, there is room for some doubt as to whether the particular result in issue should have been reported as positive or negative.

“A reasonable compromise in the circumstances is for the company to offer, and for the union to accept, that the worker be re-engaged in his former position with effect from the date of this decision.”

Last week, Irish Rail was ordered to pay about €5,000 to a gatekeeper who was dismissed because she tested positive for two illegal drugs. The Limerick woman took a case claiming her dismissal was unfair, given she had never seen the company’s drugs policy, was not subject to any disciplinary procedure or given warnings about her dismissal.

The Employment Appeals Tribunal ruled in her favour and said the procedure surrounding her dismissal “lacked transparency, clarity and a clear structure”.