UDD1972

The Respondent is a food wholesaler and part of Ireland’s largest grocery distributor. The organisation operates distribution centres across Ireland. The Complainant commenced employment in May 2004, he was dismissed on 9^thNovember 2017.

On 3^rdMay 2017 the Complainant was issued with a verbal warning to expire after six months for five occasions of absence totalling 44 days. The warning was not appealed.

On 24th July 2017 the Complainant was issued with a written warning for two occasions of absence totalling 14 days to remain on his file for twelve months. The warning was not appealed.

On 31st August 2017, the Complainant was issued with a final written warning for poor attendance to remain on his file for twelve months. The warning was not appealed.

Following his failure to report to work for three rostered days and having made no contact with his Line Manager regarding his absence, the Complainant was invited to attend an investigation meeting to discuss his poor attendance on 21st September 2017. At the meeting, the Complainant stated that his most recent absence resulted from alcohol issues. The Complainant was referred to Occupational Health who reported that the Complainant stated that he had no underlying issues with alcohol and did not feel that his alcohol consumption was a problem or that it affected his work. It says that he was not suffering from depression or anxiety and he was diagnosed fit to remain in work.

A disciplinary hearing took place on 1st November 2017, the outcome of which informed the Complainant that he was dismissed with eight weeks pay in lieu of notice. The decision to dismiss was not appealed.

The Complainant referred a claim under the Acts to the WRC on 25th April 2018.

Summary of the Respondent’s Case

Ms Judy McNamara, Ibec, on behalf of the Respondent, stated that the Complainant was dismissed for poor attendance following a prolonged period in which he had a total of 80 days absence in less than a year. During this period the Complainant received a verbal warning, a written warning, a final written warning and was ultimately dismissed for poor attendance. She said that the fact of dismissal is not in dispute and he was dismissed by reason of his conduct. Accordingly, she argued that his dismissal was not unfair as it resulted wholly from“the conduct of the employee”,in accordance with section 6(4) (b) of the Acts.

Ms McNamara stated that the Respondent recognises SIPTU and all staff are encouraged to be members of that Union and the Complainant was represented by his trade union representative at every stage of the process. It was the Respondent’s contention that every effort had been made to offer the Complainant assistance to deal with any issues he had which were resulting in his absences. He was consistently offered the services of the Employee Assistance Programme.

However, the Complainant’s attendance did not improve, and his warning letters had clearly stated that unless there was a satisfactory and sustained improvement in his attendance, that further disciplinary action may be taken up to and including dismissal. It also reminded him that he was required to attend work on a regular and consistent basis in accordance with his contract of employment. She said that his failure to present to the workplace left the employer not only short staffed but placed an additional burden on the Complainant’s colleagues when he was absent. The Complainant was at all times afforded all benefits of fair procedure, in line with the Respondent’s established policy, the LRC Code of Practice on Grievance and Disciplinary Procedures S.I. 146/2000 and the universal principles of natural justice.

Ms McNamara noted that the Complainant did not appeal the decision to dismiss despite being given the opportunity to do so and she referred to the case ofPungor v MBCC Foods LtdUD584/2015, where the Employment Appeals Tribunal outlined that the employee has an “obligation” to exhaust internal disciplinary and appeal procedures prior to lodging any unfair dismissal claims. This position has also been endorsed by the Labour Court in the case ofAnyzta v Vilnis CacsUDD1812.

Summary of the Complainant’s Case

Mr John Murphy, SIPTU, on behalf of the Complainant disputed the Complainant’s dismissal and said that he was a loyal and valuable employee with the Respondent for over 13 years and had had no disciplinary record prior to the events of 2017. He said that the Complainant’s appeal is based on the fact that the procedure followed by the Respondent was not fair, that the Company failed to abide by its own written procedure as required by its Human Resources Policy and that the sanction of dismissal was not proportionate.

Mr Murphy said that the incidents of absenteeism upon which the Respondent based its decision all relate to the last 18-24 months of Complainant’s employment and all were certified by his doctor.

The essence of this case, therefore, relates to the difficulties that befell the Complainant in the last 18 months of his employment and the manner in which the Respondent dealt with these issues. The Complainant had been suffering from stress and alcohol related problems during the last number of years of his employment, yet, he submitted that the Respondent did not give his problems any meaningful consideration and by dismissing him without doing so had failed in its duty of care. Therefore, he said that the Respondent was not supportive of the difficulties the Complainant was suffering as is evidenced by the manner in which it summarily dismissed him. The Complainant submits that the opinions offered by the Occupational Physician were contradictory and difficult to reconcile in that he noted the Complainant’s heavy alcohol consumption but felt no need in recommending that the Complainant attend a professional alcohol counselling service.

Mr Murphy contended that the support offered to the Complainant by the Respondent was at arms-length as it merely advised him of the contact details of the EAP service and could not be considered by any standard as in the manner of counselling. He said that the Respondent’s Occupational Health Service made no attempt to contact the Complainant’s own medical doctor who had certified “stress” as the cause of his illness and noted that the Respondent accepted that report without question. In that regard he held that it was a breach of the Respondent’s Attendance Policy which sets of the role of the Occupational Health Service as follows:-

• •Advising on aspects of the relationship between health and work, including medical suitability for work and the health issues arising from work and the working environment.
  •Identifying whether an individual has an underlying medical condition, which is affecting their attendance.
  •Providing advice in connection with adjustments to the work environment and/or rehabilitation programmes.
  •Liaising with an individual’s GP for further information.

• “importance of employers abiding by their own procedures and giving due consideration to an employee’s GP’s medical certs”.

The Complainant’s representative acknowledged the various disciplinary meetings and warnings issued to the Complainant about his poor attendance but contended that the Respondent did not really understand or appreciate that he was suffering from stress, which he said effectively prevented him from engaging in the disciplinary process in a manner that would normally be expected of an employee facing disciplinary action.

Mr Murphy contended that in all the circumstances the imposition of the ultimate sanction of dismissal was totally disproportionate and that the Respondent failed to consider other possible sanctions. The Respondent’s Disciplinary Policy & Procedure sets out a variety of sanctions that may be applied in relation to matters of discipline which include demotion, loss of increment, suspension without pay, etc, as alternatives to dismissal. He referred to the case ofNoritake (Ireland) Ltd v KennaUD/88/1983 where the EAT, in referring to the importance of establishing the “reasonableness” of the decision to dismiss in that instance, specifically set out a number of tests to determine the issue of ‘reasonableness”. One of those tests was whether“the penalty of dismissal was proportionate to the alleged misconduct”.

Issue for the Court

Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Discussion and Conclusions of the Court

The Court has considered in detail the written and oral submissions of the parties. No witnesses were presented before the Court.

The absence pattern of the Complainant is not in dispute and neither is it disputed that his absence pattern resulted in a number of warnings being issued to him in accordance with the Respondent’s Attendance Policy, where the Complainant was advised that his absence levels were a cause of concern and caused major operational difficulties to the business and put additional work pressure on his colleagues.

Having reviewed the details, at each meeting between the Complainant and management, the Complainant was represented by his trade union representative, he was asked if there was anything the Respondent could do to support him. He consistently said he was fine and was working on improving his attendance. It was only at the disciplinary meeting on 21st September 2017 that he sought assistance “about his drinking”. The Respondent offered him the services of its EAP programme provided by VHI and gave him the number to contact straight after the meeting. The EAP services are a confidential service and once an employee avails of such a service, the matter is private between the employee and the counsellor/therapist thereafter. The Complainant never availed of that support and did not get in contact with the counselling service offered.

Following the meeting held on 21st September 2017, the Respondent paused the investigation process, provided the Complainant with the EAP details and referred him to the Respondent’s Occupational Health Physician, for a assessment. In its referral, the Respondent informed the Occupational Health Physician that it was concerned about the Complainant’s comment regarding his drinking problem and requested the Physician for a referral to ascertain the following:-

• •the full extent of his issues with alcohol,
  •if this prohibits him from working or following procedure,
  •if his is in a fit state to work at all,
  •if he is able to partake in its internal investigation process, and
  •what supports or accommodations, if any, were required,

• “…that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”

The Court so Determines.

Signed on behalf of the Labour Court



Caroline Jenkinson
RK______________________
11th December 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Richard Kennedy, Court Secretary.