ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032531
Parties:
| Complainant | Respondent |
Parties | Danny Walsh | E. Flahavan & Sons Limited t/a Flahavan's |
Representatives | Tom Kelly BL instructed by David Burke Solicitors | Dorothy Donovan B.L. |
Complaints:
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-00043041-001 | 12/03/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00043041-002 | 12/03/2021 |
Date of Adjudication Hearing: 06/12/2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the UnfairDismissals Acts, 1977 - 2015and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant contends that he was unfairly dismissed. The reason given for the dismissal was for gross misconduct and dishonesty. The complainant contends that the respondent was aware that he had an alcohol problem and that the sanction of dismissal was not reasonable in the circumstances.
The complaint seeking adjudication under Section 77 of the Employment Equality Act 1998 was withdrawn at hearing.
Summary of Respondent’s Case:
The respondent gave written and oral submissions summarised as follows:
The Complainant commenced work with the Respondent on or about 1st July 2012. The Complainant’s job title was that of Mill/General operative. The Complainant’s contract of employment was terminated summarily for gross misconduct on or about 10th November 2020. The dismissal was effected following the conclusion of the disciplinary process in accordance with the Respondent’s disciplinary policy and which policy complies with S.I. 146/2000.
For a period of in or about 12 to 14 months prior to his dismissal the Complainant had incidences of arriving late for work, absenteeism, generally being disruptive and on one occasion, namely 7th September 2020, arrived in the workplace smelling of alcohol. The Complainant was sent to the company doctor and a test for alcohol later showed the Complainant to be well above the legal limit of alcohol for driving. The Complainant told the doctor he had been drinking some cans of beer until about 2 a.m. and in circumstances whereby, the Respondent believes, he was holding a house party.
At this time, being 7th September 2020, the Complainant was on a 6 month verbal warning dated 12th August 2020 for failure to clock in and out on 1st August 2020. Employees are required to clock in and out firstly for health and safety reasons and secondly in order that Respondent can comply with its statutory obligations pursuant to s.25 of the Organisation of Working Time Act 1997 requiring an employer to keep records of working time of employees and thirdly for processing of wages. The Complainant advised the Respondent to check the CCTV camera for his start and finish time. The Complainant had advised Payroll that he commenced work at 6.00 a.m. when in fact he commenced work per the CCTV camera at 6.36 a.m. In addition to the sanction of verbal warning, a half hours’ pay was deducted from the Complainant’s next salary payment. The Complainant was afforded a right of appeal of the said verbal warning and sanction. The Complainant did not appeal the said verbal warning or sanction and accordingly accepted that it was properly warranted.
Following the incident on 7th September 2020 the disciplinary process was invoked against the Complainant and following an investigation and discussion with the Complainant a formal disciplinary meeting was held with the Complainant on 18th September 2020 at which the Complainant was accompanied by the shop steward. The meeting was chaired by the Operations Director (Mr C), accompanied by the Health & Safety Manager. The Complainant was issued with a written warning which he did not appeal and accordingly accepted that the said warning was properly warranted. The reason for the said warning was that the Complainant had engaged in conduct regarded in his contract of employment, as ‘gross misconduct’ viz.:- Reporting for work under the influence of alcoholic liquor ……….. is regarded as gross misconduct. Not only did the Complainant accept that his conduct on 7th September 2020 warranted the disciplinary measure imposed but importantly the Complainant neither at the investigatory stage or the disciplinary stage put forward that he was an alcoholic or had alcoholic dependency issues. In fact the Complainant strenuously disputed that he had issues with alcohol.
On 14th October 2020 the Complainant was suspended with pay, following an investigation on 13th October and 14th October 2020 and pending a disciplinary hearing, in respect of sleeping on the job during a night shift on 11th October 2020 and being late for work. In addition to sleeping on the job the Complainant lied about same and it was this said denial and failure to properly deal with the matter that eventually led to a breach in the duty of trust and confidence between Respondent and the Complainant.
The disciplinary hearing was held on 19th October 2020. The matters before the hearing were sleeping on the job, denying same and being late for work. The findings of the disciplinary hearing were that Complainant had agreed to commence work at 6.00 p.m. on 11th October 2020, rather than the normal start time of 10.00 p.m. A colleague phoned the Respondent prior to 6.00 p.m. to say that the Complainant would not be in and that Respondent should try and get somebody else to fill in for him. Notwithstanding this, the Complainant arrived at work at 10.00 p.m. and the evidence was that he slept on the job. The Complainant did not carry out the duties he was paid for and his colleagues had to cover for him. The Complainant’s colleagues were becoming frustrated. The Complainant’s contract of employment was terminated and he was suspended with pay pending his right of appeal.
It was at this disciplinary hearing on Monday 19th October 2020 that the Complainant, for the first time, raised issues regarding alcohol. However, the Complainant was at pains to say that he was not an alcoholic. A note from the Complainant’s doctor and two letters, dated 16th October 2020, from the Waterford Substance Abuse Service were handed in to the hearing on 19th October 2020. Although these matters had not been raised at the investigatory stage, consideration was given to these as mitigating factors. However, at the disciplinary hearing the Complainant stated that he advised his counsellor that he was a binge drinker and it was known to the Respondent that during COVID lockdown parties were being held in the Complainant home it was also held that even if issues with alcohol were a factor in the Complainant’s attendance record and his disruptive behaviour it did not account for the Complainant’s lack of disclosure and the manner in which he engaged with the Respondent regarding sleeping on the job and left the Respondent feeling disrespected and in a position whereby it could not engage with the Complainant. The Complainant did not display signs of depression at work either as a result of personal issues or otherwise; the Complainant was partying in his home and earlier in the year was granted leave to go to Miami and Florida on holidays. The outcome of this disciplinary hearing was to terminate the Complainant’s contract of employment.
The Complainant appealed the decision to terminate his employment and an appeal hearing was heard on 4th November 2020. Issues regarding the Complainant’ situation with alcohol and his commitment to dealing with same were put to the hearing in some more detail. At the Appeal the Complainant stated that it was not drink related that he arrived to work 5 hours late on the 7th September 2021 in respect of which and he was given a Written Warning. However, it was again held that even if issues with alcohol were a factor in the Complainant’s attendance record and his disruptive behaviour it did not account for the Complainant’s lack of disclosure and the manner in which he engaged with the Respondent regarding sleeping on the job and left the Respondent in a position whereby it could not have trust or confidence in the Complainant. Accordingly, the decision to dismiss Complainant was upheld.
The Respondent’s Operations Director (Mr C) gave sworn evidence, summarised as follows:
He stated that he was with the company for some 41 years. The complainant was in the company for some 12 years and Mr C had issues in relation to the complainant for the latter years of his employment. There was discontentment expressed to him by other employees about the complainant’s lack of commitment to the job, not clocking in, covid concerns etc.
The first incident in the chain of events which led to the dismissal was the failure of the complainant to clock in on 1st August 2020. He had not been honest about his start time stating it was 6am when in fact it was 6.36am. He received a verbal warning.
At the time of the second incident when the complainant came into work smelling of alcohol, 7th September 2020, it was a busy time for the company, harvest time and when Mr C had to speak to the complainant about arriving into work in the condition he was in, the complainant became very aggressive, nearly taking the door off the hinges. It was obvious that the complainant could not be allowed to work in the situation where he could not obviously be allowed to work on any machinery. He was sent to the doctor and the discipline imposed was a written warning. He did not appeal this sanction and did not want his shop steward involved.
The third incident occurred on 12th October 2020 when the complainant was due to come in at 6pm to do some additional overtime. A colleague rang to say the complainant would not be in as he was “the worse for wear”. The complainant came in at 10pm and Mr C received a phone call from a colleague to say that the complainant was asleep. Two meetings were held with the complainant at which he was accompanied by his shop steward. The complainant denied twice that he was sleeping on the job and eventually admitted it. The fact that he had been dishonest and also had been asleep on the job meant that he was guilty of gross misconduct and he was therefore dismissed. No mention of alcohol was made until “the eleventh hour”, when a letter dated 16th October 2020 was submitted to the meeting on 19th October 2020 about attending some appointments. Mr C stated that his door was always open and if the complainant or any staff member came to him with a problem he was always open to help. There was no such approach by the complainant and while other possibilities were considered, because of his lack of engagement the decision was taken to dismiss him.
Sworn evidence was given by Mr F who is a non-executive Director of the Company.
He conducted the appeal meeting. Mr F stated that the factors taken into account when deciding on his appeal were the fact that the complainant had not addressed the situation by, for example requesting time off to deal with his problem and particularly for the fact that he had been dishonest in not admitting that he was asleep and then not being honest about how long he had been asleep. At the appeal meeting he had denied sleeping lying down but at the disciplinary meeting he had agreed he had. Some of the letters submitted regarding counselling were not clear that it was in relation to alcohol. In fact the complainant denied he was an alcoholic at the appeal meeting. The appeal was not upheld and it states in the letter that the complainant was dishonest about sleeping on the job at both the disciplinary and appeal meetings.
Summary of Complainant’s Case:
Written and oral submissions were given, summarised as follows: On 11 August 2020, a disciplinary meeting was held regarding the Complainant’s conduct on or about 1 August 2020. This meeting was attended by the Operations Director (Mr C), on behalf of the Respondent, who was accompanied by a witness and the Complainant. The outcome of this process was that it was established that the Complainant had been 36 minutes late for work and, for this conduct, he was given a verbal warning for a period of 6 months. On 7 September 2020, it was alleged that the Complainant was 5 hours late for a 6am shift, arriving in at 11am. The Operations Director met with the Complainant, accompanied by a Health and Safety Manager and adjudged that the Complainant was in an unfit state for work due to alcohol consumption. A formal meeting was arranged with the Complainant and a Shop Steward, at which the Operations Director advised the Complainant that the Respondent would like the Complainant to attend the Company Doctor’s practice for the purposes of testing him for alcohol and drugs. The Complainant was driven to this practice for a 2pm appointment, whereupon his blood was taken in order to be tested for alcohol and drugs. The Complainant was suspended on full pay for the remainder of the day. On 18 September 2020, Mr C wrote to the Complainant to inform him that, a drugs test had come back negative and the alcohol test had been mislaid or lost. He noted that “on your own admission to Doctor P, you were drinking Alcohol up to 2.00 a.m. on the morning of the 7th September 2020 and arrived five hours late for work in an apparent unfit state to work.” The Complainant was given a written warning that would remain on his personnel file for one year. On 12 October 2020, Mr C advised the Complainant that he had been informed by another employee that the Complainant had been asleep while at work for several hours during the night shift on 11 October. The Complainant met Mr C again on 13 October, at which time he both denied and admitted to being asleep at work. A letter was written by Mr C to the Complainant informing him that he was suspended with pay and that a disciplinary meeting would be held in order to investigate whether the Complainant had acted in a manner that constituted gross misconduct, namely: dishonesty, in denying he had been asleep at work and sleeping at work. A disciplinary meeting was held on 19 October 2020, at which the Complainant was accompanied by a Shop Steward. At this meeting, the Complainant provided a copy of a medical certificate showing that his doctor had referred him to Waterford Substance Misuse Services and that he had advised a Counsellor that he was a “binge drinker.” In a letter written to the Complainant on 21 October 2020, Mr C stated that he had considered the matter fully and found that the Complainant had in fact slept on the job. He informed the Complainant of his decision to terminate his employment. The Complainant appealed this decision and an appeal hearing was held on 10 November 2020. At this appeal hearing, the Complainant was accompanied by a Union Official and a Shop Steward. The Complainant again advised the Respondent that he was receiving counselling support from Waterford Substance Abuse Centre and stated that he was committed to giving up drink but that he was not an alcoholic. The Respondent received a letter from Waterford Substance Abuse Centre stating the Complainant had attended two appointments and was actively engaging with a counsellor. It was noted that at the previous disciplinary hearing of 19 October, a medical certificate was provided stating that the Complainant had been referred to addiction services. The Respondent, at this appeal hearing, accepted that the Complainant was attending counselling sessions. Despite this, the Respondent upheld the decision to terminate the Complainant’s employment. The Complainant was, at all material times, suffering from alcohol dependency and had a history of alcohol misuse that had affected both his personal and professional life and the Respondent had adequate notice of this fact prior to making its decision to dismiss him from his employment. While the Complainant may have stated that he did not believe he was an alcoholic, he disclosed sufficient information to give rise to an undeniable inference that he did in fact suffer from issues relating to alcohol dependency and may in fact have been at the material time an alcoholic. He stated he was a “binge drinker” and that he had been referred to substance misuse services. He disclosed that he had in fact met substance abuse counsellors and was committed to giving up drink. The Respondent’s submission that “it cannot be ruled out that the efforts of the Complainant in attending at the Waterford Substance Abuse Services was an ex post facto effort to correct his hand in order to frustrate a dismissal” is inconsistent with the fact that the Complainant attended these services before his dismissal and brought it to the attention of his employer in advance of any decision to dismiss him. Alcoholism and alcohol dependence are disorders and are recognised as a disability and can include occasional alcohol abuse and binge drinking. Neither the Respondent, its agents or servants, nor the Complainant have any qualifications to diagnose a person with alcoholism or alcohol dependency. Deference could have been given to Substance Misuse Counsellors that the Complainant was in fact meeting at the material time. The Respondent had in place no procedures or policies and applied no procedures of policies to deal with an employee suffering from alcoholism or alcohol dependency. Section 6(7) of the Unfair Dismissals Act 1977 states: “…in determining if a dismissal is an unfair dismissal, regard may be had… (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” It is the submitted that even if the Respondent can point to “conduct” of the Complainant to seek to ground the dismissal, it cannot demonstrate that it acted reasonably in so doing. This is because the central issue in this case is the alcohol dependence of the Complainant and the reasonableness of the Respondent’s actions must be judged in this context. In its submissions, the Respondent cites numerous cases in which a dismissal was held to be fair. The Respondent however cites no cases that deal with an employee that is struggling with alcohol dependence and therefore no cases cited by the Respondent offer guidance with regard to how the Workplace Relations Commission ought to deal with a case, like the present one, in which the conduct of the employee is impugned due to alcohol misuse or dependence. The Respondent did not consider whether the conduct that was the subject of the dismissal was related to the Complainant’s alcohol dependency. It did not consider whether the Complainant’s apparent breach of trust could be remedied by adequate and effective treatment for alcohol dependency. When put on notice of the alcohol dependency issue, it did not consider whether a lesser sanction would be more appropriate, such as a period of suspension in order to allow the Complainant to avail of treatment. It is submitted that the previous cases before employment tribunals that deal with employees and alcohol dependency disclose a consistent principle that employers should have in place procedures to address alcoholism and alcohol dependency and should follow those procedures, which should include an opportunity for the employee to avail of treatment. Other cases where alcohol is a factor in a fair dismissal do not involve alcoholism or alcohol dependency. It is submitted that the Respondent’s failure to either apply procedures that address employees suffering from alcoholism or alcohol dependency or even have in place such a policy led the Respondent to fail to give the Complainant an opportunity to avail of any treatment, once it was given notice of the Complainant’s issues with alcohol. It is submitted that these actions, taken together, take the Respondent’s decision and decision making process outside of the band of reasonable responses and it is submitted, renders the dismissal unfair. Sworn evidence was given by the complainant, summarised as follows: He stated that he was employed by the respondent since 2012. His main jobs involved cleaning, painting, operating the machinery and killing vermin. He gave a detailed description of the personal problems he had over the last eighteen months of his employment. His relationship broke up, he was drinking but could not admit that he was an alcoholic. He was not in a fit position to come into work on 11th October 2020 due to a back problem and had asked his nephew to phone in for him. However, he did come in and he did fall asleep. He went to the doctor before the appeal hearing and he was referred to a counsellor. His brother-in-law passed away and he suffered shock and as a result he “fell off the wagon”. He stated that he went for help immediately before the appeal hearing and at the appeal hearing he handed in the letter about attending the Addiction Centre. |
Findings and Conclusions:
The complainant was dismissed on the grounds of gross misconduct for dishonesty and sleeping on the job. I note that at the time of his dismissal, he had a verbal warning for not clocking in and at that time he alleged he had reported for work earlier than he had. He also had a written warning for coming into work some five hours after he was due and for reporting for work under the influence of alcohol. The incident that led to his dismissal was that it had been reported to the respondent that he had reported for work some five hours after he was due and he had then been sleeping on the job lying down on a butter box for some hours. I note the respondent’s evidence that other employees were frustrated by the complainant’s lack of performance.
Section 6 of the Act provides: 6 (4) Without prejudice to the generality of subsection (1) of this section, 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 one or more of the following: …. (b) the conduct of the employee, …. In O’Riordan v Great Southern Hotels UD1469/2003, the Employment Appeals Tribunal set out the appropriate test for determining claims relating to gross misconduct: “In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”. Accordingly, the respondent must have a genuine belief based on a fair investigation that the complainant was guilty of the alleged wrongdoing and afforded him with fair procedures. In this instant case, I note the complainant was afforded representation at the disciplinary and appeal meetings. The respondent was faced with inconsistent evidence from the complainant in the disciplinary and appeal meetings where he first denied the charge of sleeping, then admitted he had been sleeping, then stated that he was not asleep lying down. The respondent concluded that the bond of trust between the parties was broken and could not be restored. In assessing the proportionality of the sanction, Noonan J. in Bank of Ireland v Reilly IEHC 241 stated: “The question.. is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”. In this instant case, the complainant submitted that the sanction was excessive and that the complainant should have been afforded the opportunity such that the breach of trust could be remedied by adequate and effective treatment for alcohol dependency. I note the complainant submitted evidence of availing of counselling services to the respondent but the respondent appears to have made their decision on the basis of the complainant’s dishonesty and sleeping on the job. The last minute production of some letters which indicated that the complainant was availing of counselling services was too late in the circumstances where the complainant had up to then strenuously denied that he was an alcoholic. I find that the respondent came to a reasonable belief that the bond of trust and confidence necessary in the employment relationship had irretrievably broken down. I do not uphold the complaint that the complainant was unfairly dismissed.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I do not uphold the complainant’s complaint that he was unfairly dismissed.
Dated: 15th February 2023
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Dismissed for dishonesty and sleeping on the job. |