The dismissal of an employee following a failed random breathalyser alcohol test has been upheld by the Workplace Relations Commission ("WRC"). In the absence of a statutory duty for employers to carry out intoxicant testing, the decision is a useful indicator of how a dismissal resulting from the imposition of intoxicant testing in health and safety critical workplaces is likely to be viewed by the WRC.

Background to dismissal

The case involved a mechanical fitter (the "Complainant") and a leading service provider in the power generation, oil and gas industries (the "Respondent").

The Complainant worked for the Respondent on a series of short term contracts spanning a twelve year period. He travelled to the UK to carry out work at a client site. On arrival on a Sunday, he "went out and had a few drinks". He was required to attend induction training at the client site on Monday afternoon but was not due to work on site in his capacity as a mechanical fitter until Tuesday evening.

At the induction session certain workers were randomly selected for an alcohol breathalyser test. The Complainant, who had previously signed a consent form to take part in such testing, and who conceded at hearing that he was "well aware of the possibility of a random test", was selected. His breath alcohol measurement was over the level permitted to allow access to the site and he was refused entry and subsequently flown home by the Respondent.

The Respondent's Alcohol and Drugs Free Workplace Policy provided that "a confirmed positive drugs and/or alcohol test shall result in disciplinary action, up to and including discharge from employment" and the Complainant was subsequently dismissed for gross misconduct due to his failure to observe the health and safety rules of the Respondent and its client.

Legal arguments considered at hearing

The key issues considered by the WRC in rejecting the unfair dismissal claim was whether the complainant was at work and whether the sanction was proportionate.

At Work

The Complainant argued that as he was not at work at the time of the breathalyser test nor operating site equipment, he did not present a danger to himself or others. He argued that the breathalyser could have been retaken the following day prior to him commencing work.

The WRC found that the purpose of the induction session was to deliver a "serious message" to site users to prevent the occurrence of an accident. Compliance with health and safety measures is of "paramount importance in the industry within with the Respondent operates". As the Complainant was paid to attend the induction, the WRC held that this demonstrated the high importance placed on the induction session by the Respondent.

The WRC concluded that the Complainant was reporting for duty at the client site at the induction session and accordingly should have considered there was a possibility he could have been selected for a random alcohol or drugs test.

Proportionate sanction

The Complainant argued that having regard to the fact that he was not at work, the Respondent failed to consider sanctions short of dismissal and that the termination of his employment was disproportionate. In considering whether the sanction was disproportionate, the WRC referred to the judgment of Noonan J in of Bank of Ireland -v- Reilly [2015] IEHC 241 in which he stated:

"The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned".

The WRC held that in all the circumstances of the case, the actions of the Respondent and the disciplinary sanction imposed were within the range of reasonable responses and substantial grounds existed to justify dismissal.

Legal basis for Intoxicant Testing in Ireland

The Safety, Health and Welfare at Work Act 2005-2014 (the "SHWWA") imposes a duty on employees to ensure that they are not under the influence of an intoxicant (defined as alcohol or drugs or any combination of the two) to the extent that they are in such a state as to endanger their own safety, health or welfare at work or that of any other person.

The SHWWA also states that an employee may be required to submit to intoxicant testing by his or her employer. However, as this provision of the SHWWA is not yet operative, it cannot form the legal basis for conducting intoxicant testing in the workplace.

There are generally two types of intoxicant testing: "with cause" testing, which arises in circumstances in which an employee is perceived to be under the influence of an intoxicant; and random testing. The latter is typically carried out in safety critical work environments.

Whilst there is no legal requirement for employers to carry out intoxicant testing, many employers do so in practice, providing for this by way of relevant policy or under the contract of employment.

Lesson for Employers

Despite the arguments put forward by the Complainant about whether he was actually at work at the time, it appears the WRC will consider a dismissal based on a failed intoxicant test to be fair, against the backdrop of a safety critical workplace.

It is important for employers to ensure that if intoxicant testing takes place that it is provided for and dealt with in the correct manner. Employees should be clear that they may be required to submit to testing and should be advised that resulting disciplinary action may take place in certain circumstances. Testing should be carried out in line with recognised standards and best practice.