UD1429/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                      CASE NO.

EMPLOYEE                                                                                      UD1429/2011

-          Claimant

Against

EMPLOYER                          -   Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr N.  Russell

Members:     Mr J.  Browne

                     Mr F.  Dorgan

heard this claim at Waterford on 26th March 2013 and 21st June 2013.

Representation:

Claimant:        

Respondent:   

The determination of the Tribunal was as follows:-

Respondent’s Case:

The respondent is engaged in chemical manufacturing and the claimant was employed as a packaging Operative from 18^th August 1997 to the date of his dismissal on 20^th January 2011.

The decision to dismiss the claimant was taken by two managers (MC and BK) for the Respondent. Both these managers gave evidence to the Tribunal in respect of the disciplinary procedure followed before reaching the decision to dismiss the claimant. The reason for the dismissal was unacceptable levels of absenteeism on the part of the claimant.

The disciplinary process was outlined as follows.

·         25^th August 2009. Verbal warning

·         12^th November 2009. 1^st written warning

·         28^th January 2010. Final written warning

·         9^th September 2010. Suspension without pay for one week. This was followed by two internal appeals, both of which upheld the original decision.

·         9thDecember 2010. Decision to dismiss the claimant. He was paid six weeks notice but not required to work during this period of notice. This decision was also followed by two internal appeals, both of which upheld the decision to dismiss the claimant.

MC and BK both told the Tribunal that they had given the claimant ample opportunity to improve his attendance record during the disciplinary process and both felt that they ultimately had no choice but to dismiss the claimant as he failed to reach a satisfactory level of attendance.

On 16^th September 2010 the claimant appealed the decision to suspend him without pay for a period of a week, commencing on 27^th September 2010.

BF, Manufacturing Operations Director conducted the claimant’s appeal on 22^nd September 2010. 

The claimant attended the appeal hearing and clarified he was happy to proceed on his own.  At the meeting the claimant appealed the harshness of the week’s suspension but gave no further evidence and no mitigating circumstances were offered.

Following the conclusion of the appeal hearing BF upheld the sanction of one week’s unpaid suspension. The claimant was offered a right of appeal.

On 27^th September 2010 the claimant elected to appeal this decision to Site Director MW. The appeal hearing took place on 30 September 2010. BF sat in on this second appeal. The claimant was accompanied by his representative SD.  BF was in attendance to assist should any queries arise and for continuity. The decision to suspend the claimant without pay for one week was upheld and this was to commence on 11^th October 2010.

Following the disciplinary hearing held on 8^th December 2010 the claimant was notified the following day that his contract of employment would end on 20^th January 2011.  He was offered a right of appeal to this decision.

This appeal hearing was held on 21 December 2010 and the claimant was represented by SD.   BF conducted this appeal hearing. At that meeting the claimant’s representative clearly made it clear that the claimant recognised the seriousness of the decision. It became apparent that the claimant had an alcohol related problem.  The claimant had not wanted to make it public.  BF upheld the original decision to terminate the claimant’s contract of employment. BF stated that the explanation given by the claimant had not been provided at previous disciplinary meetings and as the company was not made aware of the existence of these issues it was powerless to intervene and assist.

The claimant chose to appeal this decision and was invited to attend a meeting with MW on 9^th February 2011.  For continuity reasons BF attended this appeal hearing.  BF contended that the claimant’s attendance was completely abnormal and he had been offered every right of appeal.  At all stages of the disciplinary process it was explained to the claimant that he needed to improve.  The claimant had been offered counselling and he turned this down.  BF contended that the company had spent a year in trying to facilitate the claimant’s return to work and believed the company did the right thing.

BF had looked at the trend of the claimant’s absences throughout 2010 and absences on Mondays and Fridays.

GMcA worked for the company for eight months in 2010.  Her role was occupational health nurse.  The claimant was referred to her.  The claimant told her that he was suffering from stress due to lack of sleep.  GMcA offered the claimant an appointment with the company doctor but he declined.  She also made him aware of the Employee Assistance Programme available.

The claimant was transferred to the packaging and process department in March 2010 and his supervisor was SK.  The claimant worked shifts.

When the claimant returned after an absence SK completed a return to work form for him.  SK tried to coax the claimant along and reminded him of his absences in the previous twelve month period.  The claimant always cited the nature of his absence being illness and was not prepared to speak further about it.

SK usually gave the claimant a lift to work and during the snow in late 2010 SK pleaded with the claimant to come to work during that time.  PCs are located in various places in the workplace.  Staff can easily access them and look at their attendance records.

Claimant’s Case:

The claimant commenced employment in 1997 and was employed as a packaging operative.  He worked shifts. This created difficulty for him with his sleep pattern.  He often stayed up all night or overslept. Approximately four years ago he sustained a workplace accident.  He hurt his back and found it difficult to sleep.  He took some tablets to kill the pain and attended aquapuncture.  He then started to drink at home.  He was too embarrassed to tell the company that he had an alcohol related problem.  He had been in denial about this problem.

The claimant had many absences from work. On two absences in mid 2010 the claimant cited his illness was attributable to stress caused by management.  He said two staff members had bullied him.  An investigation was carried out but this was dropped.  When questioned about most of his absences on his return to work he deemed these to be private.  He did not want the company to know about his disability.  He was trying to improve and received herbal tablets from a health store but he had a bad reaction to these.  He tried everything and even went to bed early in the evenings to improve his sleeping pattern.

However, he eventually told BF about his alcohol related illness and his sleeping pattern.

During the snow in late 2010 he slipped and hurt himself and he notified the company that he could not attend work.

No one in the company had ever told him that he should get a medical certificate from his doctor.  No light duties were ever offered to him. The claimant could not recall visiting the company nurse in August 2010 or the employee assistance programme being offered to him.

Since the termination of the claimant’s contract he sought alternative employment but has been unsuccessful in securing another job.

Determination:

Following a Disciplinary Procedure the claimant was advised by letter dated the 9^th December 2010 that his contract was being terminated with six weeks’ notice. Therefore, the claimant was dismissed from the 20^th January 2011. Prior to that date the claimant had an appeal heard by Mr F who, by letter dated the 23^rd December 2010, informed the claimant that he upheld the decision to dismiss.

In the letter of confirmation from Mr F dated the 23^rd December 2010 he referred to what he described as an unsubstantiated explanation for absences provided at the appeal by the claimant   He further referred to the fact that this explanation was not provided at previous disciplinary meetings “when it could have been acted upon”.

The Tribunal believes that a fundamental error was made by Mr F in this regard. It was open to him on appeal to consider any matters pertinent to a decision to dismiss particularly in circumstances where the dismissal was not to take effect until almost a month later.

There was a second appeal to Mr W. No evidence was available from Mr W at the Tribunal, however, the Tribunal believes that the integrity of that appeal was undermined by the fact that Mr F who decided the first appeal was present at and took some role in the second appeal.  This involvement of Mr F calls into question the independence of that appeal. Mr F’s reference to a desire for “continuity” runs contrary to the entitlement to a completely fresh appeal.

At the initial appeal before Mr F the claimant, for the first time proffered his abuse of alcohol   as a reason for his record for absenteeism. In evidence before the Tribunal, the claimant indicated that it had taken him some time to accept that he had a problem in this area and that, even when that admission was made to himself, he continued to conceal the position and, instead, endeavoured to improve his attendance record. Indeed, there was some evidence from the documentation before the Tribunal that between September 2010 and December 2010 there had been some improvement in attendance at work. It was the three day absence in December that ultimately led to the dismissal.

A reasonable employer recognises that a fundamental characteristic of alcohol dependency is denial.    A reasonable employer recognises that a person with such dependency will not be open about it and will not generally engage. That said, the Tribunal has considerable sympathy for the company in the conduct of the disciplinary procedure up to the point of appeal in that it acted on the information given to it by the claimant. During the course of the disciplinary procedure the claimant did not open up about his difficulties and left it until the eleventh hour to do so. Prior to his dismissal becoming effective, the claimant in his appeal to Mr F raised the issue of this alcohol dependency. Indeed, from the evidence given to the Tribunal, it appeared that the claimant had been self-medicating with alcohol for some time. This matter was raised at the appeal before the date of dismissal and the Tribunal can see no reason why further enquiry into the matter could not have been made by Mr F in the context of an appeal  or, indeed, by the company itself.  The position adopted by Mr F was that the claim was unsubstantiated   notwithstanding that the pattern of the absenteeism emphasised by a witness for the company in evidence  would have suggested to  a reasonable employer that substance  abuse could be  an explanation for the behaviour.

It is the Tribunal’s opinion that, once the claimant finally accepted that he had alcohol issues   and proffered this as an explanation at the appeal, an issue had thereby been raised as to whether there was alcohol dependency at such a level as constituted a disability.  The employer should have made further enquiry and, indeed, offered the claimant a further opportunity to substantiate his claim that this was a significant factor in or caused his absenteeism.  Mr F seemed to be of the opinion that, as this was raised for the first time on the appeal he could not deal with it. He seemed to think that it was too late for the claimant to proffer this explanation. The Tribunal does not agree.

It takes courage for an individual dependent on alcohol or any substance to accept and acknowledge the issue to themselves and, further, to share this recognition with a third party. Even when faced with dire consequences,  it is not unusual for  an individual to continue with  an attitude of denial  and to hold back in discussions with third parties in the hope of addressing such  difficulties  as persist without full disclosure and the perceived  shame and sense of vulnerability that can accompany such disclosure.

In this instance, the reality of his situation appears to have dawned on the claimant, albeit late in the process, when he finally opened up to his employer.

A reasonable employer would have considered this change to be significant, and would have enquired and deliberated further before arriving at a final decision.

Considering the totality of the case before the Tribunal, the view of the Tribunal is that the claimant was unfairly dismissed. However, in assessing compensation, the Tribunal must have due regard to the fact that timely disclosure of the alcohol issue would have enabled the company to deal with the matter earlier. Further, the Tribunal heard very little evidence of mitigation on loss. However, in this regard, the Tribunal cannot disregard the reality of the challenges facing somebody in the claimant’s position particularly in a depressed economy.

Having considered all matters the Tribunal awards the claimant compensation in the sum of €10,000 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

              (CHAIRMAN)