UD1016/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                                         CASE NO.

Patrick Doherty                      - Claimant                                                                            UD1016/2015

against

An Post                                  -Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2015

I certify that the Tribunal

(Division of Tribunal)

Chairman:     Ms B. Glynn

Members:     Mr. D. Morrison

                     Mr. M. McGarry

heard this claim at Castlebar on 9th January 2017

                                              and 7th March 2017

Representation:

Claimant:      Mr Seán McDonagh, Communications Workers Union, William Norton House,

                      575 North Circular Road, Dublin 1

 Respondent: Ms Freda Mahon, An Post, Solicitors Office, General Post Office, O'Connell Street, Dublin 1

Respondents’ case:

The Tribunal heard evidence from Dr. O’R, who is the Chief medical officer for the respondent for ten years. He managers six or seven nurses. He explained that alcoholism is not viewed as an illness as of itself. It can lead to illness. For the purposes of the respondent regarded the sick pay scheme treated as an illness.   The individual can self refer or management can refer to the respondent relevant unit.   The respondent treats it as sick leave even though it is not an illness. Sick pay is paid for four weeks.

In 2008 the claimant submitted a sick cert from his GP stating an alcohol problem. The claimant had no interest in addressing his alcohol problem at the time. The claimant was removed form driving duties. The claimant was referred to hope house for four weeks and was expected to have after care and remain alcohol free for two years. Afterwards he understood that the claimant had begun drinking again. He received information from NK who is a trained counsellor and in psychotherapy that the claimant failed to comply with the programme and was drinking again. The witness explained that if people are motivated and take on family support and other criteria then they are usually successful but if not they do not tend to do well.

In March 2015 the service manager observed that the claimant was under the influence of alcohol. The claimant was suspended. NK was contacted regarding treatment. The claimant could not self refer to treatment because the management referred him. The claimant self referred to hope house.  

The witness gave further evidence to the Tribunal about the situation. Ultimately he explained that the claimant was dismissed. The dismissal was appealed and the dismissal was upheld.   He explained that he did not think the respondent could have done more for the claimant; they had afforded the claimant three opportunities. The treatment is voluntary and “it, (motivation), has to come from within themselves”.

The Tribunal heard evidence from SM the human resource manager.   He explained that the claimant signed an undertaking in 2009 regarding alcohol or alcohol treatment. The claimant failed to comply. In March 2012 the claimant was suspended because of alcohol related issues.   The manager observed the claimant intoxicated in work and he sent the claimant home. The claimant admitted to this. The claimant was issued with a final written warning by the operations manager.

The witness explained when asked that the respondent did all it could do for the claimant that it is up to the individual themselves that they cannot force the issue.

The Tribunal heard evidence from MG the head of employee relations. The witness heard the appeal of the dismissal. The decision to dismiss the claimant was upheld.

Claimant’s case:

The Tribunal heard evidence from the claimant. He worked as a postman in the Respondent for 14 years. His hours were from 4.00 a.m. to 12.00 p.m. In the days leading up to his dismissal he had received bad news about the health of his son. His mother in law was unwell. He found himself mostly alone at home because his wife was with her mother as she was unwell. He was in low spirits and worried about his grandchildren.

The claimant explained that he never met the CMO. He could not recall if he met the occupational health therapist as his memory is not good. He has type one diabetes.

On the morning in question he had one drink. He was not feeling well at all and he slipped. He was not feeling good.

He wrote a letter to the Respondent to ask for another chance. He explained that he loved his job, that he was always on time and did his deliveries well. He felt that if he had been given or was given another chance he could prove himself.

Determination:

This case evolves around the suspension of the Claimant from duty on the 12th March 2004 as a result of him consuming alcohol while on duty on the 11th of March 2012, as a result of which he was suspended on full pay and the disciplinary process initiated.

The Tribunal were informed of the Claimant’s alcohol addiction, as a result of which he had come to the adverse attention of the Respondent on several occasions, stretching back to May 2008.The Claimant did not dispute, and indeed accepted, that he had an alcohol addiction.

Evidence was given by the Chief Medical Officer for the Respondent, on their Addiction Policy, which included Self-Referral, Management Referral and Mandatory Referral. The Tribunal were informed that the Applicant, had, in the past, failed to comply with Management Referral in May 2008, having committed to doing so, and had also failed to comply with a Mandatory Referral in December 2008, having signed an Undertaking to do so. This latter failure would have entitled the Respondent in terminating the Applicant’s employment with them, but, they chose not to do so.

Following a further incident on the 22nd of March 2012, following a complaint by a customer, the Applicant was again found to be under the influence of alcohol, and was issued with a Final Warning . Again, the Applicant gave an Undertaking to comply with the Mandatory Referral of the Company policy on addiction, but again failed to comply with it. This was the third occasion on which the Respondent had facilitated treatment, and the third time the Claimant failed to adhere to the Programme, despite a commitment to do so.

On 11th March 2014 the Applicant was again found to be under the influence of alcohol while on duty, and on this occasion, following a disciplinary inquiry, it was decided that the Applicant’s employment would be terminated. The Claimant was present at the oral hearing conducted on the 2nd of July 2014, together with a Union Representative. It is noted by the Tribunal that this Union Representative did not dispute any of the facts, and his approach was to seek leniency based on the Claimants alcohol problem, good attendance record, in addition to stressing the financial impact that would be borne by the Claimant should his employment be terminated.

The Respondent decided to terminate the Claimants employment with them, which decision was appealed by the Claimant, which Appeal was heard on the 22nd of January 2015. The Claimant was represented by two union officials at the Appeal Hearing, and again, the Tribunal note that the basis of the Appeal was not to dispute the facts, but rather to seek leniency from the Respondent on the assurances of the Claimant that he was no longer drinking and was attending AA meetings.

The Respondent wrote to the Claimant on the 28th of May 2015, informing him of their decision to uphold their initial decision to terminate his employment with them.

It was clear from the evidence furnished at the hearing that every opportunity was afforded to the Claimant, by the Respondent, to deal with, and treat, his addiction problem so that he could remain an employee of the Respondent. Indeed, it has to be said that the Respondent acted over and above any legal obligation to do so, with specific reference to one occasion , when they would have been justified in terminating his employment with them. Every opportunity was afforded to the Claimant , who failed to follow through on undertakings and assurances, some in writing, which he gave to the Respondent to atend a programme to deal with his addiction problem. The Respondent placed their trust in the Claimant, but, again and again, this trust was breached by the Claimant. The reality is that the Respondent also have a duty of care to their other employees and to their customers and there came a point when these responsibilities and duties could no longer be ignored.

The Applicant’s solicitors argued that the disciplinary procedure was flawed and unfair and that the Applicant did not have adequate support from the Respondent but all of these claims are rejected by the Tribunal as the evidence was overwhelming that the disciplinary process was flawless, and that every step that could be taken, was taken, by the Respondent, to assist the Applicant.

The Tribunal noted that the Applicant was extremely honest in the giving of his evidence, and admitted that not alone had he an alcohol problem, but, had failed to comply with Undertakings given by him to the Respondent, to complete programmes to deal with his addiction. He did not dispute the facts nor claim that the dismissal was unfair. He simply wanted to keep his job, and his evidence was, in effect, a plea to the Respondent for another chance.

Having considered all the facts in the case and the evidence furnished at the hearing, with particular reference to the evidence given by the Claimant, the Tribunal find that the dismissal of the Claimant was, not alone fair, in the circumstances, justified.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

         (CHAIRMAN)