EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD230/2014
APPEAL(S) OF:
Employer
- appellant
against the recommendation of the Rights Commissioner in the case of:
Employee
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr M. Gilvarry
Members: Mr. D. Morrison
Mr T. Gill
heard this appeal at Castlebar on 16th July 2015, 12th October and 13th October 2015
Representation:
Appellant(s) : Mr Michael O’Connor B.L. instructed by Ms Gemma Hodge, Chief State Solicitor's Office, Osmond House, Little Ship Street, Dublin 8
Respondent(s) :
Mr Boguslaw McArdle, Patrick J Durcan & Co, Solicitors, James St, Westport, Co Mayo
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of the employer appealing the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 reference r-126425-ud-12/EOS.
Respondent’s case.
The employee assistance officer (EAO) who provides a confidential support to employees gave evidence on behalf of the employer. EAO was assigned to the case by HR due to ongoing unauthorised absences. EAO first met the employee (the claimant) on 21 October 2009. At the meeting the claimant explained that her behaviour was due to a number of personal family matters which she was finding difficult to deal with and was being treated by her GP for depression. EAO made a number of suggestions including finding a work life balance. A second referral was arranged in April 2010 when the claimant failed to attend appointments with the chief medical officer (CMO). A meeting was arranged for 28 July 2010 and the claimant failed to attend. The witness received a text from the claimant that day saying she was unable to attend. In August 2010 the claimant telephoned the witness and informed her that she was depressed and experiencing panic attacks causing her to miss appointments with the CMO.
At that stage the claimant was absent from work for most of 2010. The claimant disclosed that she had not informed her family of her ongoing difficulties. With the permission of the claimant the witness liaised with the CMO on the 12 August 2010. The CMO recommended the claimant apply for carers leave however this was not acceptable to the claimant.
On 16 August the claimant informed the witness that she wished to return to work but this did not happen. In September EAO recommended the claimant meet a specialist psychiatrist.
In and around the 27 or the 28 September the claimant indicated she was returning to work. HR informed the witness that disciplinary action had commenced in the case and she was requested to prepare a report on the claimant. The report was prepared and copied to the claimant in advance of submission the claimant accepted the content of the report. Two disciplinary meetings were arranged and cancelled on the grounds of ill health. EAO was concerned for the claimant and sought the advice of the CMO. The CMO wrote to the claimant’s doctor recommending treatment. EAO offered to accompany the claimant to an appointment with her GP which was not accepted.
The witness described the claimant as a private person with a hidden personality. In December 2010 the claimant told the witness she was returning to work having received specialist help. The return to work went smoothly with support from colleagues. However after four days, following a traffic accident, the claimant suffered a setback. In March 2011 the death of the claimant’s mother caused her great upset although on the 12 April 2011 she indicated that she wished to return to work. The witness met the claimant on 11 May 2011 describing her as positive, confident and looking well. The claimant’s line manager was happy with her work and performance. The claimant was due to work on the 11 May but did not attend.
On 23 May 2011 EAO telephoned the claimant and advised her to contact her trade union to assist her with her employment status and her appeal. The witness was informed by HR that the claimant’s employment was terminated in July 2011. HR requested a second report on the claimant’s case in August which she copied to the claimant in advance of submitting. The claimant sought help preparing the appeal of her dismissal. The witness had no experience with employment appeals and it was not her role to assist with such matters. EAO suggested legal advice from a solicitor with expertise in employment law. The claimant asked the witness “if she mentioned that she had been drinking” would that help her appeal. The witness was shocked at this as alcohol was never previously mentioned by the claimant.
In cross examination EAO told the Tribunal that she was asked by a HR Manager (HRM) if she (HRM) could include the claimant’s report in the appeal process and EAO agreed to this. However EAO did not mention the conversation she had with the claimant wherein the claimant mentioned her drinking and asked whether she should mention this at appeal. EAO was shocked at the mention by the claimant of drinking as this had never been mentioned before and did not form any part of the claimant’s GP reports.
It was put to EAO that she did nothing about the claimant’s disclosure about her drinking and EAO said that the claimant never came back to her about this. EAO was on 3 weeks holidays after her conversation about the claimant’s drinking but had arranged for another Employee Assistance Officer (from the Civil Service) to fill in for her. EAO did not brief this temporary replacement in relation to the claimant and the claimant did not contact that person.
EAO felt that the claimant had wanted EAO to help her with writing the appeal. However she accepted, when put to her, that the claimant had already lodged her appeal before mentioning her drinking to EAO. EAO did not include any reference to the claimant’s discussion about her drinking in EAO’s report to HR.
An Assistant Principal Officer (HRM) from the respondent’s HR Department gave evidence to the Tribunal. The issue that led to the claimant’s dismissal was that she was in breach of the sick leave regulations by not supplying medical certificates while absent from work. The claimant’s own Sick Leave Section had failed to resolve the issue of the claimant not sending in medical certificates while absent on the basis of being ill.
HRM was delegated to begin the disciplinary process at stage 4 but decided to start at stage 3 which allows for a final written warning to issue. An investigation/disciplinary meeting was held with the claimant on 7th October 2010. The claimant had been absent without medical certification since 12th May 2010 and was removed from the payroll since 24th May 2010.
At this meeting the claimant was contrite and agreed that she had been absent and had not submitted medical certs. HRM outlined the claimant’s obligations under the sick leave regulations and told her that if there was anything they could do to support her return to work they would do it. The claimant’s response was that she had good intentions of going to work but when it came to the day it was difficult as she suffered from depression and she was in a dark place, it was like being in a maze.
A final written warning issued to the claimant on 11th October 2010. The decision to issue this was taken by HRM.
The claimant returned to work on 13th December 2010 and sent HRM an e-mail telling her that she was glad to be back at work. However the claimant was absent again without medical certification from 17th December 2010. The claimant had also failed to attend the CMO on three separate occasions.
On 11th January 2011 HRM wrote to the claimant informing her that she was moving to stage 4 of the disciplinary process. A disciplinary meeting took place on 24th January 2011.
On 18th April 2011 HRM wrote to the claimant informing her that she was recommending the claimant be dismissed.
On 22nd April 2011 the claimant returned to work.
On 11th May 2011 the claimant reported sick again.
The claimant supplied medical certificates and a fitness to resume certificate on 20th May 2011. However she did not return to work until 30th May 2011 and did not supply certs for the intervening period. The claimant was again absent from work from 31st May 2011.
On 5th July 2011 HRM again wrote to the claimant informing her that she was to be dismissed and that she could seek a review if she wished.
The claimant subsequently sought a review of the decision to dismiss her.
On 23rd August 2011 the claimant returned to work and provided a fitness to return to work certificate and medical certificates covering most but not all of her unauthorised absence since 31st May 2011.
On 18th November 2011 an appeal hearing was conducted by the Civil Service Disciplinary Appeal Board and HRM was in attendance at this hearing.
On 14th February 2012 a report of the Appeal Board was posted to the claimant.
On 23rd February 2012 a letter confirming the claimant’s termination as of 23rd March 2012 was sent to the claimant.
HRM told the Tribunal that the claimant was dismissed because of her unauthorised absence from work.
HRM was not aware of the claimant’s alcoholism and told the Tribunal that the case would have been handled differently had she been aware of this.
Claimant’s case.
The claimant met with EAO about a month after she had lodged her appeal to the Civil Service Disciplinary Appeal Board against the decision to dismiss her. It was at this meeting that the claimant first raised the issue of her alcohol abuse. EAO had already sent to the claimant a copy of her report on the claimant. However the claimant told EAO that not all the facts had been disclosed and told her about her drinking. The claimant asked EAO how she should bring this up. She got on well with EAO and thought that EAO would re-act differently when she told her about her drinking. Subsequently the claimant tried to contact her Manager to tell him about her drinking but he was on holidays and she could not get in contact with him. She did get in contact with another Manager who told her “no point in getting in touch with us in Castlebar, it is out of our hands”. The claimant added that she was foolish not to have told them in hindsight.
The day the claimant disclosed her alcohol addiction she drank a lot of spirits and crashed her car. The claimant is now attending Alcoholics Anonymous and has abstained from drinking for the last number of years.
Since her dismissal the claimant has qualified for the emergency services and obtained a truck/bus driving licence. The claimant outlined details of her efforts to find work and told the Tribunal that she had two interviews coming up.
It was put to the claimant that she chose to ignore the C.M.O. and the E.A.S. Officer and at the end made a fleeting reference to alcohol and now expected to be treated differently. The claimant responded to this by saying that when she raised the issue of her drinking with EAO she expected EAO to discuss it; she thought that bringing it to light would lead to it being discussed. The claimant was not looking for EAO to help her write an appeal as this had already been lodged.
Determination:
The Tribunal in this case were faced with a difficult decision in a case which demonstrates one of the major challenges in Irish society. Alcohol has major public health implications in Ireland due our high levels of consumption and the fact that “binge drinking is common place” (Alcohol Action Ireland). According to the World Health Organisation “Drinking alcohol is associated with a risk of developing health problems such as mental and behavioural disorders including, alcohol dependence, major non-communicable diseases such as liver cirrhosis, some cancers and cardiovascular disease as well as injuries resulting from violence and road crashes and collisions. A significant portion of the disease burden attributable to alcohol consumption arises from unintentional and intentional injuries, including those due to road traffic crashes, violence and suicides, and fatal alcohol related injuries tend to occur in relatively younger age groups”.
The claimant in this case has given evidence of, and it is accepted by the respondents that she is, suffering from alcoholism and was at all material times. A question for the Tribunal therefore is does this fact in any way impinge upon the decision of the Tribunal in the claim before us.
The respondents’ case is perfectly clear. The claimant has had an atrocious history of absenteeism from work and the respondents made every effort over the years to deal with her absenteeism, and she was given her numerous chances and opportunities to improve her performance and her absenteeism record. Her Line Manager giving evidence very fairly stated that she was an excellent worker when she appeared for work but that their problem was that she was regularly unavailable and this was completely disruptive of the workplace and unfair to her work colleagues. The respondents followed fair procedures and gave every opportunity to the claimant to have her side of the story heard and only after following through a best practice model of fair procedure was she dismissed.
At first sight therefore there would seem to be nothing for the Tribunal to do but to deny her claim.
However, it is common case that the claimant at all material times in the throes of alcoholism and we accept her evidence that her absenteeism was as a result of this alcoholism.
The respondents have procedures in place to deal with and support employees who are suffering from alcoholism which has been recognised as a disability in various decisions of the Equality Tribunal under the Employment Equality Acts. The respondents however make the case that the claimant never made them aware of the difficulties that she was suffering. HRM an Assistant Principal Officer from the respondents’ HR Department gave evidence to the Tribunal that had she been aware of the claimant’s alcoholism the case would have been handled differently. However, she was never made aware of this.
Of particular significance was that the claimant had disclosed her difficulty with drinking to the Employee Assistance Office (EAO), and we accept the claimant’s evidence in this regard. The Tribunal felt the position of the Employee Assistance Officer was difficult and anomalous. EAO gave evidence that she provides confidential support to employees nonetheless she provided reports to HR on the claimant’s case but failed to mention the disclosure of an alcohol problem made to her by the claimant. In relation to the request of the claimant to EAO to help her she initially advised her to contact her trade union and then advised her to contact a Solicitor with expertise in employment law. The Tribunal felt the position of the Employee Assistance Officer wasn’t properly thought out or defined by the respondents. If it was a completely independent and confidential service she would have been have expected to have been of more assistance to the claimant. If (as the Tribunal finds to be the case), she was acting as part of the HR Department of the respondents then she had a duty to inform them of the disclosure made to her of alcohol problems by the claimant. The situation brings to mind the fable about the King with horse’s ears. As is recounted in the fable, EAO felt that she could not disclose this information but it ultimately came out in the end.
We therefore are faced with a situation where the respondents should have known about the alcoholism difficulties that the claimant was experiencing and we find that they, as reasonable employers, should and would have dealt with the matter differently had they been made so aware.
The Tribunal would like to point out that we are making no criticism of EAO, the Employee Assistance Officer in reaching this conclusion. The Tribunal accepts that in the absence of specific guidelines EAO was acting bona fide and in good faith in the actions that she took in this case and recommends that Employee Assistance Officers be given guidelines to deal with this type of situation in the future.
In the circumstances, and because of the disclosure to EAO, we feel it was not reasonable for the respondents to dismiss the claimant and we therefore find that the dismissal was unfair.
While the sanction of dismissal was unfair in this case, we do find that a lesser sanction was justified. We have considered the question of remedy and consider that reinstatement or compensation are not appropriate. The Tribunal’s decision is to order the re-engagement of the claimant within six weeks of the date of this decision, on the following conditions:
- A final written warning to remain on her file for 24 months from the date of her re-engagement.
- Prior to her returning to work, the claimant is to provide a medical certificate of fitness to return to work, at her own expense, from her own G.P.
- The claimant must adhere to and comply fully with the respondents’ sick leave policy and absenteeism policy and in particular during the 24 months after the date of her re-engagement.
- The period between dismissal and reengagement is to be treated as an agreed period of unpaid leave and the claimant shall not accumulate service, increments or seniority during that period.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)