Complainant

Respondent

Anonymised Parties

A Porter

A Hospital

Representatives

Dave Curran, SIPTU

Peter Flood, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00034743-001

19/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034814-001

24/02/2020

In August 2013, the complainant commenced employment as a porter in the respondent’s hospital. At the time of his dismissal he was on point 6 of the HSE’s porter’s scale, earning an annual salary of €35,992.   On April 11th 2019, a clinical nurse manager reported that the complainant was distracting staff from getting on with their work, that he refused to help a colleague and that he dressed up as a dinosaur and disrupted the evening drug administration round.

Summary of Events After April 11th 2019

On April 15th, the complainant attended for an examination by the hospital’s occupational health consultant (OHC) who concluded that he was suffering from depression and anxiety. The OHC recommended a review at the end of June. Although he was certified by his own psychiatrist on May 29th as fit to return to work, he did not submit the medical certificate with this information until June 12th. Following a second consultation on June 26th, the OHC confirmed that the complainant tested positive for cocaine and benzodiazepine and that he had an addiction to cocaine and alcohol. The OHC recommended a residential treatment programme, followed by an aftercare programme. The complainant contacted the HR department and said that he disagreed with the OHC’s findings and he said that he would contact his union.

There was no contact from SIPTU and on July 10th, the complainant himself contacted the HR department complaining that he had not received his full sick pay. This occurred because he had not submitted a medical cert for a two week period in June. He sent no further certs up the date of his dismissal.

The HR Manager sent the complainant a letter on July 15th, asking him to make contact with the hospital to discuss his condition. The complainant didn’t reply and on August 6th, the HR Manager wrote again, asking him to get his SIPTU representative to contact her. The HR Manager said that the complainant’s behaviour on April 11th would be investigated under the hospital’s disciplinary procedure. There was no response to this letter, and no response to a similar letter on August 19th. This latest letter concluded with the following warning:

“Continued failure to communicate with the Hospital, failure to cooperate with the recommendations of the occupational doctor and pending the outcome of a disciplinary investigation meeting, a disciplinary sanction may be taken against you, up to and including dismissal.”

The complainant did not respond. On August 23rd, the HR Manager wrote again to the complainant and informed him that if he didn’t get in touch by August 28th, he would be dismissed on the grounds of unauthorised absence, behaviour at work, failure to engage with the hospital and incapacity to fulfil the terms of his contract. The complainant did not respond and his contract was terminated on September 2nd. The following day, Mr Curran of SIPTU contacted the hospital requesting that the dismissal be rescinded. He suggested dates for a disciplinary meeting; however, the hospital did not overturn the dismissal and, in accordance with the disciplinary procedure, Mr Curran submitted an appeal against the hospital’s decision.

An appeal meeting took place on October 17th. At this meeting, the complainant said that he didn’t attend a rehabilitation programme and his union accepted that he had not adhered to the hospital’s sick pay policy, by sending in medical certificates and maintaining contact when required. On October 31st, the hospital confirmed its decision not to overturn the complainant’s dismissal.

The complainant argues that his dismissal was unfair and also that, in accordance with section 4 of the Minimum Notice and Terms of Employment Act 1973, he is entitled to pay in lieu of notice.

Reason for Dismissal

Mr Flood summarised the reasons for the dismissal of the complainant as follows:

On April 11th 2019, he was unable to perform his duties due to being under the influence of alcohol, unprescribed drugs or the misuse of prescribed medicine. He was absent from work from that date until the termination of his employment on September 2nd. Following the consultation with the OHC on June 26th, when the complainant’s drug and alcohol problems were disclosed to the hospital, along with the recommendation that he attend a residential programme, he failed to engage with management. Despite numerous attempts to contact him, the complainant did not make any contact until he was dismissed. The hospital concluded that it had no option but to terminate the complainant’s employment due to his failure to engage with them, his failure to undertake a rehabilitation programme and his failure to fulfil the terms of his contract. He was given an opportunity to attend a disciplinary hearing, but despite being informed of the consequences, he did not to do so.

The Hospital’s Case that the Dismissal of the Complainant is Not Unfair

Mr Flood said that the hospital has an intoxicants policy which provides that misuse of drugs or alcohol by an employee which impairs their ability to do their work may result in disciplinary action up to dismissal. An employee with an addiction problem will be encouraged to seek help; however, failure to continue with treatment or to respond to treatment may result in disciplinary action up to and including the termination of employment.

The case of at the Court of Justice of the EU, FOA v Kummunernes Landsforening C-354/13 was referred to by Mr Flood, where the Advocate General stated:

“It is true that in medical terms, alcoholism and addiction to psychotropic drugs are diseases. This does not, however, mean that the employer would be required to tolerate an employee’s breach of his contractual obligations by reference to these diseases. For example, a dismissal because the employee comes to work intoxicated is not based on the disease of alcoholism or drug addiction as such, but is a breach of the employment contract which the employee could have avoided by abstaining from consuming alcohol or the substance in question. Any employer is entitled to expect such an employee to seek the medical treatment that is necessary for him to be able to perform his obligations under the contract of employment.”  

It is the respondent’s case that the complainant had an obligation to get treatment to deal with his addictions; however, at the time of the appeal against his dismissal on October 17th 2019, he had still not attended the residential or aftercare programmes recommended by the OHC in June.

The hospital’s sick leave policy which was submitted in evidence at the hearing, sets out the responsibility of employees in the event of absence due to illness:

§    They must take responsibility for their own health;

§    They must maintain regular contact and keep their line manager informed of their progress and of when they are likely to return to work;

§    They must submit weekly medical certificates;

§    They must cooperate with rehabilitation measures so that they can return to work as soon as possible;

§    They must cooperate with the occupational health service.

The complainant failed to follow this policy in any respect.

Conclusion

While the complainant claims that he was dismissed in the absence of an investigation into his conduct, he was offered numerous opportunities to meet with management and to participate in an investigation. He did not respond to letters sent to him by the HR Manager on July 15th, or on August 5th, 19th and 23rd. The complainant said that he was in contact with his own line manager in May and June in relation to his absence, but he provided no evidence of this. He claimed that his SIPTU representative was in contact with the HR Manager; however, this official was in contact with the hospital about other matters and he did not discuss the complainant’s absence.

It is the complainant’s case that the reason for his sick leave was due to depression. On May 29th however, his consultant psychiatrist certified him as fit to return to work. By the end of June, the OHC’s focus was on addiction and not depression or anxiety.

When he didn’t receive his full salary in July, the complainant phoned the HR Department immediately. When his employment was terminated on September 2nd, his SIPTU representative was in touch with the HR Manager the next day. It is the respondent’s case that this is evidence that the complainant was capable of contacting the hospital when he thought it was necessary.

In his submission at the   adjudication hearing, the complainant said that the only residential addiction programme that he could find was one that lasted for six months. He said that he couldn’t be away from his family for that long. He did not raise this at the appeal hearing and he didn’t provide any evidence that he had in fact looked for a place on an addiction treatment programme.

In his submission, the complainant said that he lost his mobile phone on August 14th 2019, and, for this reason, he wasn’t aware that his union official was trying to contact him. The hospital sent him a letter on August 19th and again on August 23rd, both of which were copied to SIPTU, but he didn’t reply. Mr Flood submitted that it was the responsibility of the complainant to contact SIPTU about these letters and to seek assistance.

It is the hospital’s case that, for all of these reasons, their decision to terminate the complainant’s employment without notice was not unreasonable.

At the hearing, Mr Curran set out the reasons why, in his view, the dismissal of the complainant was unfair.

Fair Procedures or Natural Justice Were Not Applied

The union argued that no investigation was carried out into the complainant’s conduct on April 11th 2019. There was a reference to a complaint from a clinical nurse manager, but this was never shared with the complainant or his union representative. Contrary to the hospital’s disciplinary procedures, no disciplinary meeting took place.

From August 6th to 23rd, when the hospital was inviting the complainant to a disciplinary meeting, he was on sick leave. The union contends that it was unreasonable to expect him to attend a disciplinary meeting while he was sick.

Due to his absence on sick leave, he had no opportunity to state his case in response to the hospital’s allegations regarding his conduct.

The complainant was not provided with any documentation regarding the events of April 11th.

In the letters inviting him to disciplinary meetings, the hospital described the allegations against the complainant as “facts” and not allegations.

The Sanction was Disproportionate

While the union accepts that the complainant did not respond to letters from the HR department from July 17th to September 2nd, they argue that this was not sufficient grounds to dismiss an employee with a clean disciplinary record.

There are text messages that show that the complainant was in touch with his line manager when he was on sick leave.

The breakdown in communications between the complainant and the hospital should be considered in light of the complainant’s diagnosis of depression and addiction. He and his family had lost their accommodation and were forced to move in with his parents.

The Employer Did Not Consider Mitigating Circumstances

Mr Curran submitted that the hospital did not take any account of the fact that the complainant was suffering from depression, which had been certified by medical experts.   He was also suffering from the effects of an increase in his medication. Added to this, he lost his home.

The complainant had no record of any disciplinary warnings, and despite this, he was dismissed.

Precedent Case Law

Mr Curran referred to the case of Michael Coughlan and DHL Express (Ireland) Limited, UDD17738.   At this case at the Labour Court, the Court set out the high bar for a dismissal without notice to be considered not unfair. Reference was made in this decision to an earlier case of Lennon v Bredin, M160/1978, where, considering the failure of an employer to comply with section 8 of the Minimum Notice Act, the Court stated,

“…we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category.”

Mr Curran submitted that this case outlines the importance of considering a lesser, alternative sanction to dismissal.

Evidence of the Complainant

At the hearing, the complainant said that he was diagnosed with depression in 2015 and that he was taking medication which was increased in strength in 2019. He said that his attendance had been good, and that it only started to drop towards the middle of April 2019. When I asked him why he didn’t respond to letters sent to him by the hospital in July and August 2019, he said that he thought his SIPTU official was in contact with the hospital about his situation. He said that he was advised by the OHC to attend a six week addiction programme, but the only one he could find was for six months. Referring to the fact that he didn’t submit medical certificates during July and August 2019, the complainant said that he thought that he didn’t need to send in certificates when he was seen by the OHC.

Conclusion

The union’s case is that the dismissal of the complainant was unfair because,

§   There was no investigation and fair procedures were not followed;

§   The sanction of summary dismissal was disproportionate;

§   No consideration was taken of mitigating circumstances, in particular the fact that the complainant was on sick leave and suffering from depression.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case.

Section 6(4)(b) of the Act provides that;

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

Having heard the evidence of the respondent, and having considered the letter of dismissal, it is apparent that the complainant was dismissed for gross misconduct as a result of his failure to keep in touch with his employer during an absence of 20 weeks, breaches of the absence policy regarding medical certificates and his refusal to follow the advice of the OHC and get treatment for his addictions.

Was the Decision to Dismiss Reasonable and in Proportion to the Conduct?

As was established almost forty years ago in the case at the Employment Appeals Tribunal (EAT) of Bunyan v UDT (Ireland) Limited, [1982] IRLM 404, the fairness or otherwise of an employer’s decision to impose the most serious sanction of dismissal must be judged by an objective test:

“…the fairness or unfairness of the dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

Taking the circumstances confronting this employer and this employee into account, my role, as the adjudicator and the successor to the EAT is to determine if the decision of the hospital to dismiss the complainant was the action of a reasonable employer.

All contracts of employment are based on a simple premise that an employee will attend work regularly and carry out a specific job for an agreed wage. When an employee fails to attend work, an employer must give some consideration to the cause. A person suffering from a serious illness such as cancer may be out of work for six months or more, before they recover and can return to work. Similarly, an employee suffering from a psychiatric illness or an addiction is entitled to be treated with understanding and fairness, and to be facilitated with time off to get help and return to work and normal life.

Following the incident in the hospital on April 11th 2019, when he dressed up as a dinosaur, the complainant was referred to the respondent’s OHC who, on June 26th, recommended a residential drug treatment programme.   The complainant didn’t participate in a programme, saying that the only one he could find was for six months’ duration. I find this difficult to accept, because all the providers of addiction treatment have courses designed to meet the needs of clients.   If a residential programme wasn’t suitable, or if a short programme wasn’t available, the complainant could have engaged in an alternative service as an outpatient. Even up to the day of the appeal hearing, the complainant provided no evidence that he had taken action to address his drug and alcohol problems or that he was capable of returning to work.

Under the heading, “Intoxicants Policy” in the staff handbook, the hospital’s approach is clearly set out:

“Alcohol and other drug addictions / substance abuse / addictions are recognised as diseases responsive to proper treatment and as such, staff suffering from such addictions will not be discriminated against on the basis of his / her illness in accordance with the terms of the Employment Equality Act 1998 – 2011. Staff who have an alcohol or drug problem must inform their line manager and will be offered assistance and given the opportunity to do something positive about their problems. Staff will be encouraged to avail of this option. However, should an staff (sic) fail to continue with treatment or respond to same, he / she may be subject to disciplinary action up to and including dismissal where appropriate.”

Considering this policy, and, having listened to the evidence of the respondent at the hearing, it is my view that, if the complainant had responded to any of the four letters from the HR Department on July 15th, August 6th, 19th or 23rd, he could have got help to identify a treatment programme that was suitable to his needs.   In the letters of August 19th and 23rd, he was clearly informed that if he did not contact the HR Manager, he would be dismissed. It was unacceptable for the complainant not to respond to any of the four letters and to ignore the efforts of his employer to contact him.

It is the complainant’s case that the sanction of dismissal was disproportionate, as he had no disciplinary record prior to his absence from April 15th 2019.   On his behalf, Mr Curran argued that the respondent took no account of mitigating circumstances. The complainant was suffering from depression, his partner was expecting a baby and they had lost their accommodation and had to move in with his parents.

I have taken account of these mitigating circumstances. It is clear to me that the complainant was not dismissed because he has a drug and alcohol problem, but because he failed to engage with his employer over a period of 20 weeks and to get support and return to work. It is my view that, if he had cooperated with his employer from early on, or even from June 2019, when the OHC advised him to get treatment, he could have prevented his dismissal. While I accept that the domestic and health issues he had to deal with were stressful and challenging, one of the positive things in his life was his job. He was a member of SIPTU and had the support and resources of the union available to him, but it’s clear to me that he didn’t look for help from the union until he had made his situation irretrievable. On the day of the hearing of this complaint on August 19th 2020, I saw no evidence that the complainant had taken responsibility for his actions.

I am mindful of the Coughlan v DHL case referred to by Mr Curran and the “high bar” that an employer must surmount before dismissing an employee without notice. It is my view that, in addition to the offences such as assault or larceny referred to in that case, it is a very serious situation when an employee ignores a request of his or her employer to get in touch during a period of illness. I am confident that, if he had kept in touch with his employer, with the support of SIPTU, he would have been treated with compassion. In the circumstances which were entirely of his own making, it is my view that the decision of the hospital to terminate the complainant’s employment was not unreasonable.

 Was the Process Fair?

On behalf of the complainant, Mr Curran submitted that, aside from his views regarding the unreasonableness of the respondent’s decision, certain procedural failings also make this dismissal unfair. I will address these now.

1. Mr Curran argued that no investigation and no disciplinary hearing was carried out into the complainant’s behaviour. He said that the complainant was not given a copy of the complaint from the clinical nurse manager about the incident at work on April 11th 2019.

The letter of dismissal contains no reference to the “dinosaur incident” of April 11th and it is apparent that this was not the ultimate cause of the complainant’s dismissal. He was dismissed because of his failure to engage with his employer concerning the underlying cause of this behaviour and his failure to demonstrate that he had looked for and participated in rehabilitation.

The letter of August 6th from the HR Manager to the complainant states as follows:

“Following my letter and the issuance of a Medmark Report to you on 15/07/2019 I am again requesting to meet with you and your SIPTU representative. I wish to meet with you and your SIPTU representative in relation to your position in (name of) Hospital and to discuss your health and wellbeing issues as outlined in the Medmark report. As requested in my letter of the 15/07/2019, please will you let me know   if you have enrolled or completed a residential addiction and aftercare programme as prescribed by (name of OHC).”

The letter went on to list the issues to be investigated under the disciplinary process, including being at work under the influence of drugs or alcohol, absence from work, complaints of being fatigued at work, failure to submit proper medical certificates, failure to attend an OHC appointment and providing incorrect information to the HR Officer to the effect that the SIPTU representative was unavailable for a meeting. It is clear therefore, that the HR Manager’s plan was to sit down with the complainant under the heading of the disciplinary procedure and to seek explanations for this conduct.

Having considered this matter, I find that the failure to conduct a disciplinary investigation and a hearing was the fault of the complainant and not the respondent. I find also that any procedural flaw arising from this was remedied at the appeal hearing on October 17th, when the complainant, with the assistance of his union representative, had an opportunity to explain the reasons for his behaviour.

2. Mr Curran submitted that the normal practice is that a disciplinary meeting is put on hold during a period of sick leave.

I note that the complainant did not submit medical certificates during July and August, and the respondent had no evidence that he was sick. The medical certificate submitted on June 12th (dated May 29th) stated that the complainant was fit for work. Leaving this aside, there was no indication that the complainant would be compelled to attend a disciplinary investigation if he was certified as unwell. It seems to me that the overriding objective of the HR Department was to find out if the complainant was getting the treatment recommended by the OHC, so that he could return to work. If he had attended a meeting to discuss his treatment, and if he had engaged in treatment, I have no doubt that the disciplinary investigation would have been put on hold until he was ready and able to put forward a case in his defence.

3. Mr Curran complained that, in the four letters issued to the complainant in July and August, the HR Manager refers to certain conduct as facts and not allegations.

Having examined these letters, I find that the “facts” referred to are indeed facts, and that they relate to the incident of April 11th 2019, which has not been contradicted and certain other matters concerning medical certificates and appointments with the OHC, the precise details of which were submitted in evidence.

Following the respondent’s decision to terminate his employment, the complainant was given the opportunity to appeal. He attended an appeal hearing with his SIPTU representative on October 17th. I am satisfied that, on the whole, the requirement for fairness and the principles of justice have not been compromised.

Conclusion

Having considered all the facts, it is my view that the complainant’s absence in July and August 2019, his failure to send in medical certificates and his failure to respond to four letters from the HR Department asking him to contact them, was a reasonable cause for his dismissal. I find that the procedure that ended with his dismissal was not unfair.

I have concluded that the decision of the respondent to dismiss the complainant in this case was reasonable and proportionate and I also find that no unfairness arose from the procedural failings that were identified. On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded.

The complainant’s case is that he was dismissed without notice, contrary to the provisions of section 4 of the Minimum Notice and Terms of Employment Act 1973. As he had completed almost six years of service with the respondent, he claims that he is entitled to four weeks’ pay in lieu of notice.

Mr Flood referred to section 8 of the Minimum Notice and Terms of Employment Act which provides that an employer may dismiss an employee without notice by reason of misconduct. The hospital’s disciplinary policy sets out a list of offences under the heading of gross misconduct. Under these headings, the complainant failed to perform his job due to being under the influence of unprescribed drugs or prescribed medicine and he failed to engage with management about his ongoing absence.  

As referred to by Mr Flood, Section 8 of the Minimum Notice and Terms of Employment Act 1973 -2015 provides as follows:

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

I refer to the determination of the Labour Court in the case of Clogrennane Lime Limited and Joseph Curran, MN/16/1. Mr Curran was dismissed for gross misconduct and his dismissal was determined by the Court to be not unfair. In that context, the Chairman, Mr Foley upheld the decision of the adjudicator that Mr Curran’s claim for statutory minimum notice had failed.

I have concluded here that the dismissal of the complainant was not unfair. In these circumstances, there is no entitlement to pay in lieu of notice.

I have decided that this claim under the Minimum Notice and Terms of Employment Act 1973 – 2015 is not upheld and that no payment is due to the complainant in respect of pay in lieu of notice.

Addiction, dismissal without notice