EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
MN815/2012
James O'Hagan - claimant UD1418/2012
against
ICS Europaks Limited - respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr T. Gill
Mr F. Dorgan
heard this claim at Limerick on 5th June 2014
Representation:
_______________
Claimant(s): Ms Bernie Thornton, SIPTU, Liberty Hall, Eden Quay, Dublin 1
Respondent(s) : Ms Mairead Crosby IBEC, Gardner House, Bank Place,
Charlotte Quay, Limerick
Respondent’s Case
The Tribunal heard evidence from the HR & Health & Safety Manager of the respondent agri-business company that the company has 82 employees. The claimant worked as a grab truck driver operating a 5 ton forklift.
The witness gave evidence that on the morning of 23 March 2012 it came to his attention that the claimant was not carrying out his duties of transporting reels of paper to a corrugator machine. He told the Tribunal that he invited the claimant into his office accompanied by the union shop steward. He asked the claimant a number of questions but received no satisfactory response. The claimant became quite aggressive and he (the witness) then became suspicious that the claimant had reported for work under the influence of alcohol. He then referred the claimant to the company doctor who found that the concentration of alcohol in the claimant’s breath was over twice the legal limit permitted for driving. The claimant was suspended on full pay with immediate effect pending an investigation meeting scheduled for the following Monday. This proposed meeting did not proceed as the claimant submitted a medical certificate in the intervening period.
The claimant remained absent from work on medical grounds for a number of weeks. He was then assessed by an occupational health physician on 24 April 2012 who found that the claimant was medically fit to meet with his employer to resolve outstanding work issues. The witness then conducted a disciplinary investigation meeting on 10 May 2012 and the claimant was represented by his trade union official. The claimant did not deny that he had attended for work on 23 March 2012 under the influence of alcohol. He gave evidence that the claimant accepted that he had an alcohol addiction and was in the process of rehabilitation for his addiction. The Tribunal heard further evidence that the claimant had previously received a number of warnings for aggressive behaviour. He had also been dismissed by the respondent in 2010 for alcohol related issues and had only been re-instated on that occasion following an appeal to the CEO of the company.
Following the meeting of 10 May 2012 a subsequent meeting was arranged for 28 May 2012. The claimant was again represented by his union official. The HR Manager again conducted the meeting and concluded that the claimant had violated company policy on gross or serious misconduct in that he had reported for work under the influence of alcohol. He was responsible for driving a forklift and the company had to take this responsibility, the claimant’s safety and the safety of other employees into account. The claimant was dismissed from his employment and given the opportunity to appeal this decision. He exercised his right of appeal.
The CEO of the company gave evidence that he conducted the appeal hearing. The claimant did not raise any issues in relation to the company’s procedures at the appeal hearing. The basis of the appeal was that the company should have adopted a more compassionate approach to the claimant and that the company had failed to appropriately manage the circumstances applicable to the claimant given the company’s prior knowledge of his alcohol dependence difficulties. The claimant was also trying to deal with depression associated with his alcohol problem and this was made known to the company.
The CEO told the Tribunal that he considered at length all of the circumstances of the incident of 23 March 2012 and the arguments put forward at the appeal hearing. The claimant had been suspended/dismissed on five different occasions since 2006 and he (the witness) had shown leniency in 2010 in re-instating the claimant on compassionate grounds. He felt that he could not go down this route again and upheld the decision to dismiss the claimant. This decision was conveyed to the claimant by way of letter dated 18 June 2012.
Claimant’s Case
The claimant accepted that he had reported for work on 23 March 2012 under the influence of alcohol and he should not have done so. However he gave evidence that in the four days leading up to that date he had raised production issues with five different members of management within the company. He complained that there was little or no paper remaining in the machine from the previous shift. This was putting him under great pressure. He became very frustrated and even though he complained to five different members of management his complaints were not addressed. Eventually he could no longer handle the pressure. He told the Tribunal that he “fell off the wagon” which caused him to report for work on 23 March 2012 under the influence of alcohol. He gave evidence that he informed the HR Manager of these facts during the investigation process.
He accepted that he had received warnings in the past and had been dismissed and re-instated by the CEO following an appeal. He thanked the CEO for that decision. He did not report the production issues in the days leading up to 23 March 2012 to the CEO as he did not want to be bothering him about such issues. He reported the issues to other members of management as he wanted to follow the chain of command within the company. He believed that members of management let him down by not responding to his complaints. He is currently on disability benefit and was only available for work for a four month period following his dismissal.
Determination
The Tribunal carefully considered the oral and documentary evidence adduced at the hearing. The Tribunal is of the view that the claimant’s behaviour and his admission of alcohol dependency affected his competence to perform his duties at work. The claimant conceded that his behaviour affected the production process of his work colleagues. However the claimant gave evidence which was not refuted by the respondent company that on four successive days leading up to his dismissal he had encountered production difficulties which he brought to the attention of management and which were not acted upon or responded to by management.
In those circumstances the Tribunal finds that the otherwise justifiable decision of the company in dismissing the claimant is tainted by an element of unfairness. Accordingly the Tribunal finds that the claimant was unfairly dismissed from his employment and awards the claimant the sum of €2,000.00 under the Unfair Dismissals Acts 1977 to 2007.
The Tribunal also awards the claimant the sum of €2,200.00 under the Minimum Notice and Terms of Employment Acts 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)