FULL RECOMMENDATION
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : IRISH AVIATION AUTHORITY - AND - CHRISTOPHER REDDIN (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No. ADJ-00001889.
BACKGROUND:
2. The Employee appealed the decision of the Adjudication Officer to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Act, 1977 to 2015 on the 26th September, 2016. A Labour Court hearing took place on the 28th February, 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Christopher Reddin against the Decision of an Adjudication Officer under the Unfair Dismissals Acts 1977 – 2015 in a claim of unfair dismissal by his employer, Irish Aviation Authority. The Adjudication Officer found that the Complainant was not unfairly dismissed. The complaint was referred to the WRC on 14 February 2016.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Christopher Reddin will be referred to as “the Complainant” and Irish Aviation Authority will be referred to as “the Respondent”.
Background
The Complainant was employed as an Airport Traffic Controller from March 1992 until his dismissal on 3 November 2015. He had previously been employed as a Clerical Assistant in August 1988 in the Department of Industry, Commerce and Justice and was appointed as an Air Traffic Control Assistant in October 1989.
On 31 July 2015 the Complainant was asked to take a blood test on suspicion of attending work under the influence of alcohol. The test proved positive and the Complainant was suspended from duty on full pay. On 4 September 2015 he attended a disciplinary hearing. By letter dated 8 September 2015 he was informed that he was summarily dismissed. He appealed the decision; however the decision to dismiss was upheld.
Summary of The Complainant’s Case
Mr Johnny Fox, IMPACT on behalf of the Complainant submitted to the Court that while there is no dispute that the Complainant received fair and correct procedures, the dismissal was unfair, unreasonable and was disproportionate when alternate sanctions were available to the Respondent, including referral to appropriate treatment services. He contended that the Complainant’s dismissal was heavily influenced by the fact that the Complainant did not made a voluntary disclosure about his alcohol dependency problem, as outlined in the dismissal letter to the Complainant, dated 8thSeptember 2015, from the General Manager. Mr Fox submitted that had the Respondent had regard to the Complainant’s right to natural justice, it would have attempted to improve his behaviour rather than punish him. The Respondent should have had regard to the fact that since 2003 when the Complainant was last treated for alcohol dependency, his alcohol problems had on the surface dissipated and therefore an alternative to dismissal such as referral to treatment would have been more benefit to him.
This Mr Fox, contended displayed not only an unreasonable approach but also a lack of understanding of the behavioural tendencies of alcohol dependency. He cited an extract from the International Civil Aviation Organisation’s (ICAO) Manual of Civil Aviation Medicine, which outlines that alcohol dependency is a chronic and progressive disease, that apart from hospitalisation highly structured follow-up treatment programmes are desirable and there is a significant incidence of reoccurrence. Furthermore, it states that those with alcohol dependency are not reliable in self-reporting or voluntary disclosure and while the Complainant had stated that he had resolved his alcohol dependency problem, the Respondent should not have relied on his assertions.
Mr Fox said that the Complainant had been the subject of a medical examination in May 2014 by the Respondent’s Medical Examiners to investigate whether the Complainant’s regular absences from work were alcohol related. The fact that the Complainant stated that his issues were resolved should not have been accepted by the Medical Examiners as persons with alcohol dependency problems are not reliable in disclosing details of their alcohol use. Instead the Respondent’s Occupational Health advisor should have conducted a proper medical examination which could have determined that the Complainant was taking alcohol on a regular basis.
Mr Fox stated that the Complainant had both history and a clinical diagnosis of alcohol dependency, which was known to the Respondent and it was aware of or at least suspicious that the Complainant was once again having difficulties with alcohol use, as referred to at a number of meetings with him in 2009 and 2014. Had a proper medical examination been recommended it could have determined that the Complainant was taking alcohol on a regular basis and preventative measures could have been deployed which may have prevented the events of 31 July 2015. Accordingly, he submitted that it was unfair of the Respondent to rely on safety and health legislation and the safety critical nature of the role to justify the Complainant’s dismissal.
Mr Fox stated that the Complainant was not being treated for alcohol related issues in his referral to the Respondent’s Occupational Health Advisors in 2014, but for a medical condition that under regulation he was obliged to declare. He submitted that non-disclosure of his alcohol problem was not a valid reason for dismissal, in any event he was not obliged by the Respondent’s policy on intoxicants to self-disclose alcohol dependency problems, disclosure is voluntary not mandatory.
In support of his contention that the Complainant should have been assisted once he disclosed at the disciplinary hearing on 4 September 2015 that he had an ongoing alcohol dependency, he cited the EAT caseAn Employer v An EmployeeUD 230/2014 where the EAT upheld a claim of unfair dismissal in a case where alcohol dependency was not known before the dismissal, the EAT held:
- “We therefore are faced with a situation where the respondents should have known about the alcoholism difficulties the claimant was experiencing and we find that they, as reasonable employers, should have and would have dealt with the matter differently had they been made so aware.”
In conclusion, Mr Fox sought a recommendation for reinstatement and stated that the Complainant also accepted that disciplinary sanction of some form other than dismissal should apply.
Summary of the Respondent’s Position
Ms Anne Marie Ward, on behalf of the Respondent denied the Complainant’s claim of unfair dismissal and stated that the Respondent had acted fairly, reasonably and fully in line with its policies and procedures in dismissing the Complainant for gross misconduct. She made reference to the letter of dismissal dated 8thSeptember 2015 furnished to the Complainant and signed by the Respondent’s General Manager (who was not present at the hearing). Ms Ward said that careful consideration had been given to all the facts and the mitigating circumstances advanced and that the Complainant’s actions and non-actions contributed to the decision to dismiss, as outlined in the letter of dismissal. Ms Ward said that the Complainant had been given numerous opportunities to voluntarily disclose his alcohol dependency problem but had chosen not to. At the time of the incident on 31 July 2015, the Complainant was in receipt of a written waring and a final written warning, the latter sanction which was on appeal at the time of the incident on 31 July 2015. However, at no time during these disciplinary hearings did the Complainant disclose an alcohol dependency problem or seek support in line the Respondent’s policy on Managing Workplace Intoxicants. It was only at a disciplinary hearing on 4 September 2015 that the Complainant’s Union representative stated in mitigation that the Complainant had an alcohol abuse problem.
Ms Ward stated that the Respondent’s Managing Workplace Intoxicants, introduced in December 2011 coupled with its Protocol on Random Testing for Workplace Intoxicants introduced in September 2012, as agreed with the staff unions, applies to all staff. The focus and intent of the protocol is to promote a preventative culture where the use of alcohol and drugs in the workplace are actively discouraged. The provisions of the policy provide for staff to voluntarily disclose, in confidence, any issues they may be experiencing with drugs or alcohol dependency. Where an individual makes a self-declaration they will be supported and facilitated to attend treatment and counselling in conjunction with its medical advisor. Such employees will not be subject to disciplinary sanctions as long as they comply with whatever arrangements are deemed necessary for their recovery back to work. Furthermore, the policy is clear on the consequences of failing to disclose issues with alcohol or drugs dependency. In such circumstances, the issues become a disciplinary matter.
Ms Ward stated that the Complainant had previously been supported for dependency on alcohol in 2003, and there had been no reoccurrence since. Further, due to his attendance patterns the Complainant had come to the attention of HR and he had been referred to Occupational Health in 2009, 2010, 2011, 2013 and 2014. There was no disclosure of any alcohol related addiction during these visits. When he was asked by the medical examiners whether alcohol was a contributing factor to his poor attendance he confirmed that it was not and that these issues had been resolved. The Complainant had been randomly selected for testing on two occasions, in 2012 and 2013 and had no positive test on either occasion. On 23 May 2014 the Occupational Health Physician’s report on the Complainant to HR states:
- “He states that the issue around his alcohol addiction had been addressed and I note that this has been confirmed by the random tests that were negative and he also had a previous random test carried out in April 2012, which he informs me was also negative. I note from my assessment that there is no evidence of the signs or symptoms of alcohol or drug addiction currently.
I am aware that this gentleman has had significant ongoing short term absences and I have gone through this with him in detail and he has disclosed his underlying medical condition to me and I note that this would account for the absences he has had to date. “
In referring to the letter of dismissal Ms Ward stated that in deciding to dismiss the Complainant the Respondent had considered the possibility of a further referral to the Occupational Health Advisor for consideration of a course of medical treatment/counselling but in the circumstances of the case it decided that this option was not merited having regard to the many opportunities the Complainant had to disclose his alcohol issues but he chose not to.
Ms Ward stated that the Respondent operates in a safety critical industry where safety is deemed paramount and the Complainant, as an Air Traffic Controller, was fully aware of his medical obligations under his licence to control air traffic. She differentiated the case relied upon by the Union,Employer v An EmployeeUD 230/2014, from the instant case, in that in the former, the claimant had disclosed his alcohol addiction issue to the Employee Assistance Officer (EAO) and the Tribunal found that the EAO was acting as part of the HR Department of the respondent and therefore the EAO had a duty to inform HR of the disclosure. In the latter the Complainant did not at any juncture make a disclosure to any representative of the Respondent, although he had the opportunity to do so on many occasions.
At the time of the incident on 31 July 2015 the Complainant’s licence to control traffic was temporarily suspended by the Aeromedical Unit for medical reasons while he was receiving treatment for an underlying medical condition. The Aeromedical Unit have responsibility for issuing medical licences to Controllers in accordance with the requirements of ICAO. Ms Ward stated that in assessing the Complainant and all Controllers, Aeromedical personnel carry out a full medical assessment to ensure that they are medically fit to carry out their safety critical role. She said that the Complainant had been requested to provide his permission for the Aeromedical Unit to keep HR fully advised of his medical status as it related to his air traffic controller licence, however, he refused to give his permission for the release of details to HR, such a release may have resulted in a disclosure of alcohol dependency problems.
In conclusion, Ms Ward stated that the Respondent’s disciplinary policy and procedure classifies attending the workplace while under the influence of drugs and/or alcohol as gross misconduct subject to a sanction of summary dismissal.
Conclusions of the Court
It is accepted by both parties that the material facts of this case are not in dispute. The Union has stated to the Court that it is accepted that the Complainant received fair and correct procedures. Therefore the only issue before the Court is whether or not it was reasonable for the Respondent to dismiss the Complainant in all the circumstances of this case.
The Court is of the view that generally speaking when dealing with an employee who has an alcohol dependency problem employers should give such employees an opportunity to seek professional treatment before considering dismissal. However, each case must be judged on its merits. Factors such as risk to safety, the level of responsibility the employee has and contact with the public are taken into account in deciding whether or not the penalty of dismissal was within the range of reasonable responses an employer might take.
The Respondent had on a number of occasions referred the Complainant to Occupational Health to establish the nature of his dependency and to update itself on his state of his health.
In this case there was a clear policy in place for all employees, agreed with the staff unions, on Managing Workplace Intoxicants (defined as drugs and alcohol) and this was supported by its Protocol on Random Testing. The latter is designed to ensure that employees do not report for work under the influence of intoxicants. Both the policy and the protocol outline the Respondent’s support for the health and wellbeing of its employees while recognising its obligations to create a safe working environment. They also recognise its safety regulatory requirement for all air traffic management personnel’s responsibility for safety related tasks. The policies are clear in their support for personnel who experience drug, alcohol or substance misuse problems. Employees will be facilitated with time off to attend treatment and counselling and will be allowed to return to work when their Manager, in conjunction with the Respondent’s Medical Advisor agree that the employee is in a position to take up duty; depending on the employee agreeing to whatever arrangements are deemed necessary.
It is not in dispute that the Complainant was fully aware of the policy and procedures and had been treated for alcohol dependency in 2003 supported by the Respondent for a two year programme.
The Court notes that there were many occasions in the six years prior to dismissal where the Complainant was medically assessed due to his level of absenteeism. On such occasions while he was asked about his previous problems with alcohol dependency and given an opportunity to have the matter addressed in line with the Respondent’s policy, he consistently stated that it was under control. In May 2014, when HR requested the Occupational Health to query the issue, the Occupational Health Physician reported that from his medical assessment of the Complainant there was no evidence of the signs or symptoms of alcohol or drug addiction at the time and that the Complainant had disclosed that his absences were accounted for by a different underlying medical condition for which he was receiving treatment. In such circumstances it is difficult to see how the Respondent should have known that his alcohol dependency issue was not resolved.
The Union submitted to the Court that people with alcohol dependency are not reliable in self-reporting or voluntary disclosure and while the Complainant had stated that he had resolved his alcohol dependency problem, the Respondent should not have relied on his assertions. However, the Court notes that when the Complainant was facing a possible dismissal due to being under the influence of alcohol while at work on 31 July 2015, the Complainant seems to have had no hesitation in disclosing his condition to the Respondent. Yet shortly before the 31 July incident, on 23 July 2015 when faced with a final written warning over his unauthorised absence from the workplace on 22May 2015, he put forward no explanation nor did he cite any mitigating circumstances for his unauthorised absence.
The Court is satisfied that the Respondent had in placea best practice approach to alcohol and drug dependency which was based on international best practice. It is the responsibility of the Respondent to ensure that risks to others are identified and controlled while employees have a responsibility to take reasonable care to ensure the health and safety of themselves and others who may be affected by their acts or omissions.
All employees of the Respondent are expected to report for duty in a fit manner free from all intoxicants (defined as drugs and alcohol) that may pose a threat to their own safety, that of their colleagues or users.
Having regard to the Respondent’s policy which clearly state that attending the workplace while under the influence of drugs and/or alcohol is gross misconduct subject to a sanction of summary dismissal, the Court is of the view that it was reasonable in the circumstances to dismiss the Complainant when he presented for work substantially over the alcohol limit on 31 July 2015.
Moreover, in circumstances where the Respondent was steadfast in its approach to the safety and health of its employees and users, and had in place clear policies and protocols to encourage compliance with its commitment to have a workplace free of intoxicant use/abuse, in all the circumstances of this case, the Court is of the view that it was not unfair to dismiss the Complainant.
Determination
The Court finds that the dismissal was not unfair and rejects the Complainant’s appeal.
Accordingly, the Decision of the Adjudication Officer is upheld.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
LS______________________
14 March 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.