A docker who went to work 29 times over the limit for cocaine says the company that sacked him failed in its “duty of care” when he turned to drink and drugs after causing the death of a truck driver in 2019.
Michael Martin, who drove an empty container handler machine at Dublin Port as an employee of logistics firm Scruttons (NI) Ltd, has brought a claim under the Unfair Dismissals Act 1977 over his sacking after he failed a workplace drugs test.
Ciara Ruane of Byrne Wallace Solicitors, appearing for the company, told a hearing of the Workplace Relations Commission this week that a blanket drug and alcohol test was carried out across Scruttons’ Dublin Port operations on January 10th, 2022.
“The complainant’s test showed a very high level of cocaine in his system,” she said. “234 ng/ml [nanograms per millilitre]. The fail rate is 8 ng/ml.”
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She said the company’s drugs test was based on the statutory limits under the Road Traffic Act. In the case of cocaine, the Act specifies 10 ng/ml; so Martin was alleged to be 23 times over the legal limit and 29.5x over the workplace test failure limit.
“The tester advised the complainant not to drive home as he was over the legal limit for driving,” Ms Ruane said.
“I failed the test all right. That was after a few years prior, I killed a truck driver. That put me on a bad road, drinking, doing coke. They gave me no help,” Mr Martin said, referring to a fatal accident at the port which he said took place in 2019.
Pressed on that, Mr Martin said he got “two counselling sessions”.
“Don’t say under oath you got no help if you got two counselling sessions,” adjudicating officer Pat Brady told the complainant, who accepted this.
Mr Martin agreed when Mr Brady put it to him that his case seemed to be that that dismissal was an “excessive” sanction after he failed the drugs test.
“They could have given me a little leeway . . . I would have been all right if I didn’t have this accident [in 2019]. The job has a duty of care to me. Me head is f***ed up,” he said.
“I’m sorry to hear that,” Mr Brady said.
“There’s different jobs in there, they could have let me on them. They could have left me out two years, to sort my head out,” Mr Martin said.
In evidence, the company’s operations manager, Michael Powers, said Mr Martin’s job had been to load empty shipping containers on and off lorries and stack them using an 8-12 tonne machine.
“We had been doing random drug tests for a number of years, five to six years, two or three times a year, due to the nature of the work,” he said.
It was a “high-risk environment” and he needed his staff “turning up to work in a fit state”, Mr Powers said.
Asked what options were looked at as alternatives to Mr Martin’s dismissal, Mr Powers referred to having a daily drug test as “just not viable”.
He said any alternative roles were all “safety critical” roles with the same policy on drug use.
Mr Powers said a support programme had been offered to staff following the “terrible accident” in 2019 and said he “checked up” on the complainant when he was on leave in the wake of the event.
“No you didn’t,” Mr Martin interjected.
Mr Powers said the counselling offered under the employee assistance programme could have gone beyond two sessions. “It could be 22 meetings . . . They could have 102 – it’s not fixed,” the witness said.
Mr Powers referred to a meeting on January 30th, 2020, with Mr Martin.
“I asked how he was getting on and if there was anything we could do for him. I think the answer was: ‘€20,000 would sort it out’.”
At this point Mr Martin spoke up and said he had a question for the witness before stating that the firm had not been in touch with him when he was absent after the accident.
“He [Mr Powers] never contacted me. F***ing liar, f***ing lying,” he said.
“I’ve been a bit tolerant so far, but I do have limits,” said adjudicating officer Pat Brady.
Asked by the adjudicating officer what alternative positions he had sought, Mr Martin suggested a job as a “checker”, which would involve recording container movements and not driving heavy machines.
Mr Powers said that had been brought up as a possibility by Mr Martin’s union at appeal stage but that there were no vacancies for a checker at the time.
Solicitor Ms Ruane, said Mr Martin had put in his complaint some 11 months after his dismissal and was therefore outside the normal six-month jurisdictional window for the Unfair Dismissals Act.
Jurisdiction could only be extended to 12 months by the adjudicator in “exceptional circumstances”, Ms Ruane said.
Mr Martin said he would have lodged his complaint sooner if he had known about the time limit.
He told the WRC he has been training to go into work as a heavy goods vehicle driver, but has not worked since his dismissal.
Adjudicating officer Pat Brady closed the hearing to consider his decision.
