Complainant

Respondent

Parties

Yvonne  Foley

Irish Distillers International Ltd.

Representatives

Kieran McCarthy, Solicitor  

McCarthy Teahan LLP

John Dunne, Solicitor

McInnes Dunne Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00036191-001

16/05/2020

This Complainant has submitted a complaint alleging that she was unfairly dismissed by the Respondent company.

The Respondent company denies the claim and fully defended the claim. It submits that the dismissal of the Complainant was fair and reasonable, that she was dismissed for gross misconduct while already on a final written warning and that the decision to dismiss her falls within the range of reasonable responses open to the Respondent.

The Respondent also ran a preliminary point that the case was filed out of time.

Preliminary legal point – Respondent submitted that the case was statute barred – filed out of time:

The Solicitor for the Complainant, who had recently come on record - the Complainant had been previously represented by a union - made oral arguments at the hearing on the preliminary matter. He (along with the Solicitor for the Respondent) accepted 25/10/2019 as the date of dismissal, and made arguments for an extension of time – specifically, that the union who had been previously representing the Complainant had been engaging actively with the Respondent for a period of months following her dismissal and that in those circumstances, the statute should not run unfairly against her, that there appeared to be a genuine error on behalf of the prior representative in failing to file the complaint in time, and that the advent of Covid-19 had impacted seriously causing ‘communication difficulties’, also within the relevant time-frame.

Written submissions were made on behalf of the Complainant

As per the written submissions:

The Complainant began working for the Respondent on 8 January 2007 and was dismissed on 25 October 2019 for gross misconduct. The Complainant has a history and background of longstanding anxiety and low mood. This is something that the Respondent was aware of, as the Complainant had brought her difficulties to their attention previously. Despite this, she has always been hard-working, professional, dedicated to her work and well-liked by her colleagues, in a job she enjoyed. The Respondent is a subsidiary of the French drinks conglomerate, Pernod Ricard, whose headquarters are located in Dublin. Their distillery in Midleton, Cork, produces a number of popular Irish whiskies, in addition to also producing Huzzar Vodka and Cork Dry Gin.

In October 2018, the Complainant was certified unfit for work by her general practitioner due to work related stress and anxiety, exacerbating her underlying anxiety and low mood. She noted that she had been having difficulties at work since returning from maternity leave, and although she attempted to discuss and rectify these issues, she felt they were not addressed in a meaningful way. While still being certified unfit to return to work, the Complainant again attempted to engage with the Respondent regarding her difficulties at work through a telephone consultation, however, these issues were not resolved fully. Despite this, the Complainant was eager to return to work. The Complainant returned to work on a phased basis on 31 January 2019.

The Complainant submits that a number of weeks subsequent to her return to work, it became apparent that she was struggling – her underlying mental health difficulties, in addition to her unresolved workplace stress and anxiety were having an impact on her work performance, it having uncharacteristically slipped during an incident in March 2019, resulting in a final written warning.

The Complainant submits that in September 2019, her work performance slipped again. During the incident in question she clocked in late, appeared to be hungover and was alleged to have used offensive language against her supervisor. While the Complainant accepted that she had clocked in four (4) minutes late and had been out socialising the night before, she refuted using offensive language against anyone while she was at work. It was her belief that it was better to be in work rather than call in sick, which she would have done had she believed she was incapable of working that day. Additionally, she was not sent home for her behaviour as might have been expected in these circumstances and she completed her usual tasks.

The Complainant submits that it was observed on numerous occasions throughout the minutes of meetings taken throughout that the Complainant’s behaviour had been unusual for her during this incident in September, and as such, this was not regular, expected behaviour from her. The Complainant stated often that she would improve and if offered another chance she would do so, citing other examples of employees who had been offered a further chance and had become valued members within the company. Through minutes taken throughout, the Complainant is frequently apologetic and embarrassed about her actions and is actively seeking to improve.

The Complainant submits that despite being honest and admitting that she had used excessive alcohol as a crutch and coping mechanism for issues, the Respondent failed to support her in any beneficial way which could have improved her work performance. She submits that it is clear from her actions that she wished to improve – she attended her own General Practitioner to receive advice regarding her alcohol dependency and further to the Respondent’s EAP. Even in spite of her dismissal in October the Complainant has continued to show that she is serious about changing her behaviour by self-referring herself to Cork Counselling Service in November 2019 for weekly appointments to their pre-treatment group, as well as weekly counselling sessions.

Ultimately, despite the Respondent being fully aware of the Complainant’s condition and the difficulties she was having, they did not take these into due consideration in reaching their decision to dismiss her. The Complainant submits that the Respondent should have had more consideration of the common complication of anxiety being an increased likelihood of substance misuse, such as alcohol. This in turn, can hinder the effectiveness of medication taken and worsen any already existing anxiety. The Complainant was trapped in a vicious circle which is difficult to get out of on her own. Despite this, she was seeking to make positive changes when she was dismissed for a condition she had little control over. Alternatives to dismissal were not considered meaningfully nor was she considered to be an employee with a serious medical condition. Appropriate support could have been offered to the Complainant prior to any dismissal action and programmes could have been put in place to help remedy her condition.

By treating the Complainant as though her behaviour was not caused by a medical condition which the Respondent was fully aware of, the disciplinary procedure she was put through and was ultimately dismissed with cannot be considered fair.

Legal Submissions

The Unfair Dismissals Acts 1977 - 2021, as amended, sets out dismissal as the following:

“(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to termination the contract of employment without giving prior notice of the termination to the employer.”

There is immediate clarity as to what can constitute gross misconduct in law. However, the Courts have taken a strict approach regarding dismissal, without notice, for gross misconduct.

In Lennon v Bredin it held that it; “…applies only to cases of overt bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the employment relationship for a minute longer… We believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category.” In addition to this, the Court further held that had the legislature intended gross misconduct to encapsulate minor offences it would have done so – yet, the legislature had not done so, allowing the Courts in Lennon to interpret instead; “If the legislature had intended to exempt an employer from giving notice in such cases, where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such word, (after the word 5 misconduct) as negligence, slovenly workmanship, bad time-keeping, etc., they did not do so.”

This approach has been followed in more recent cases such as DHL Express (Ireland) Limited v Michael Coughlan [2017] (UDD1738) where the Complainant was summarily dismissed for gross misconduct for having caused damage to a DHL van during his deliveries. Both the Adjudication Officer, and the Labour Court on appeal found that the dismissal was disproportionate, citing that failure to safeguard and protect company property did not meet the threshold for misconduct as held in Lennon. They further held that the sanction, summary dismissal, was entirely disproportionate and unwarranted and that they failed to consider alternatives to dismissal – including options such as contributing to the cost of repairs.

This need for proportionality is also emphasised in Frizelle v New Ross Credit Union Ltd (1997) IEHC 137 where the High Court held that; “The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered…The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint and of the gravity and effect of the dismissal on the employee.”

It was previously determined in Lorraine Fitzpatrick v Dunnes Stores (2014) (UD 1202/2013) that dismissal can be considered inadequate proportionality with a Complainant with a background of longstanding service. In this case the Claimant was dismissed when she sold alcohol to an underage customer that was a part of a Garda test purchase operation. The Claimant had regular training regarding selling alcohol to minors and had signed a declaration that stated a breach could incur sanction up to and including dismissal. Despite this, the EAT held that; “…lack of proportionality [in] the decision to dismiss given the circumstances of the case and the personal background of the claimant with 12 years of service… there was [inadequate] assessment or consideration of other sanctions given the background of long service.”

Further, it was held in Preston v Dunnes Stores [2013] 11 JIEC 0407 that the Complainant, a manager at Dunnes Stores, was unfairly dismissed for gross misconduct for setting up a side business selling goods from a cash and carry to colleagues. The EAT held that; “As this was the claimant’s first offence, committed in a time of great personal difficulty which the respondent was aware of, the sanction of dismissal was disproportionate.”

In conclusion, the above case law shows a strong emphasis on reasonableness and proportionality. The Respondent showed a complete lack of consideration for the Complainant’s medical condition, despite being fully aware of it, and the influence this may have had on her, her work and her ability to make responsible decisions for herself. There was also no due consideration given to the Complainant’s stressful home situation, which the Respondent was aware of and the influence this may have had on her personally and therefore her work performance. Given the Complainant’s long history of service within the Respondent’s employ and its history of helping previously disciplined employees through their difficult times to become valued members of the company, it is unreasonable that the Complainant would be dismissed despite frequently expressing a wish for help and self-improvement.

Additionally, despite being paid in lieu of notice, the Complainant was still dismissed without notice. The behaviour of the Complainant was not such to meet the threshold that has been set in the Irish Courts that would warrant a summary dismissal.

Conclusion

The Complainant asserts that the Respondent acted in breach of the Unfair Dismissals Act 1977 – 2021 (as amended).

The Complainant further maintains due to the lack of reasonableness and proportionality shown by the Respondent results in her dismissal being unfair.

The Complainant contends that her behaviour was not such as to warrant a summary dismissal.

The Complainant respectfully requests the Adjudication Officer to uphold her complaint.

The Complainant gave evidence on her own behalf, at the hearing – Ms. Foley

The Complainant commenced work in 2005. She outlined that she was “never in trouble” until the point where she had her baby. She outlined that she had difficulties as a result. She said that she was not diagnosed with post-natal depression at the time, but it was subsequently spoken about that it may have gone undetected. She said that she was suffering from anxiety and low moods, that she was under the care of her GP, Dr. Hutch from 2016 and has ongoing dealings with her doctor. She was asked whether she had discussed her personal anxieties with Mr. Byrne. She said that she didn’t think she had ever had conversations like that with him. She was asked whether she had said anything like that to anyone? She said: “I don’t recall.” She was asked about her “state of mind” and she said it was “extremely bad.” She said that the “dealings inside in work were horrific, that it was very stressful.” She said that she was “classed as being senior in [her] role without a title” and that “a lot of the staff issues were relayed to me.” She said that “a lot of issues going on with my role.” She outlined that she was having panic attacks. She said that the effect on her was that she would “switch off from things”, that her “heart starts beating really fast.”

She was asked about January 2019, and that it was decided that she was fit to go back to work. She said: “I never actually fully returned to a five day week.” She said that she had “made a verbal agreement with [her] previous supervisor to do a four-day week.” She said that Steve Guiney arrived when the Complainant had just come back from sick leave. She returned on a phased basis. She said that she did “four as opposed to five” and that she “covered if doing functions” or for “someone’s holidays.”

It was put to her that “it is acknowledged that you had behaviours” on several occasions between April 2019 and September 2019, which she accepted. The Complainant was asked about the day of the disciplinary hearing. She said that her “shop steward said to me that he didn’t really know what was going to happen” and that she was to “talk to David [Byrne] and to literally plead for my job.”

She accepted that she was a good worker, that she got on well with her colleagues. She was asked about her behaviour and the sequence of events. She said that she returned to work on a phased basis, while still under her doctor’s care. Occupational Health was aware of that. She said: “I got put back to my own GP after that.” She said that she had panic attacks and was on medication and that there was a period during which her doctor was trying to “find the right meds” for her.

She outlined, that with the help of her GP, she underwent a psychiatric evaluation in Midleton Hospital and was then sent to Heron House. She outlined that she continued a programme with them for 18 months. She outlined that she attended weekly counselling sessions on Zoom.

She was asked about employment. She said that “once [she] got back on [her] feet”, she took a job “at the Garyvoe Hotel on the reception but, then had to leave that then” as she was “pregnant again” and there were “circumstances around my marriage and my other child.”

She said that she was well thought of in the Garyvoe Hotel and that they had a job they wanted her to take but it “just didn’t work out in the end.”

On cross-examination

The witness was asked if she was “certified as fit to work.” She confirmed that she was, and that she went back on a four day week.

It was put to her that in March, she was given a written warning and that it was “incumbent on you, to mind yourself.” The witness agreed but said that she “honestly didn’t realise the seriousness of it.” She said that she had “8-10 years of never being in trouble, had never got a warning, so I actually didn’t take the seriousness of it.”

It was put to her that “the final written warning” was issued on March 11th and that she did not appeal that warning. The witness confirmed that she had not appealed the warning.

It was put to her that that meant “if you continue to misbehave, you could be dismissed.” The witness said that when it was explained like that she understood it, but that she had not appreciated the seriousness of it at the time.

It was put to her that she was late for work on April 10th and April 11th and Mr. Guiney met with her on April 18th. The witness said that “every time I was late or missed a day, it was presumed it was because of a night out or drinking.”

She was asked if she accepted that “Mr. Guiney was trying to do you a favour, he was trying to keep you on the straight and narrow?” She said “Yes, he was looking out for me and telling me.” She said that she felt she was “being picked on by him”, that other people did things and they were not being treated in the same way. She said that she “felt that [she] was being pulled on, picked on, put down.” It was put to her that Mr. Guiney is a manager.

It was put to her that:

·       May 11th – that she was late, that she had been drinking on the 10th

·       June 23rd – that she was hungover at work

·       July 13th – that she missed work entirely

And that Mr. Guiney met with her on July 15th.

It was put to her that “July 15th was in similar vein to the meeting he had with you in April – he put it to you that all of these incidences were preceded by a night out drinking.” The Complainant said that her absence on July 13th was as a result of a sinus infection.

She said that Mr. Guiney told her to “quit the bullsh*t.” It was put to her that she “agreed that that was right.” She said: “If I did, I did, yeah.” It was put to her that, at that meeting, Mr. Guiney reminded her that she was on a final written warning. It was put to her that she was asked whether she understood the seriousness of the situation and that she had agreed at the time. The witness said that she “obviously didn’t understand the seriousness.” She said that “I probably agreed at the time with Steve [Guiney] but I also explained my situations when I was late/out for work for different reasons.” It was put to her that she “risked further disciplinary action if [she] continued on that path?” She agreed.

The Complainant was asked about alcohol. She again confirmed that she was “not an alcoholic.” She was asked about the Employee Assistance Programme (EAP) and that the details were given to her, and that she had not accessed it prior to October 2nd. If was put to her that she “only accessed the EAP after [she] had been made aware of the allegations of misconduct.”

She was asked about the meeting with Mr. David Byrne. It was put to her that she “’fessed up” at that meeting. She said: “Yes, well, I kind of agreed with bits that David said.” She said “when I lost my job, I was under the care of my GP. I achieved so much. I learned so much about myself.” She said that she was given the details of the EAP. She said: “I did ring them.” She said that the support through the EAP consisted of someone talking to her on the phone. She said that she “needed to sit in front of somebody.” She said: “I was fired for being hungover but I was left to work for the rest of the day.” It was put to her “you were fired for being hungover repeatedly, late repeatedly, comments about senior manager to a junior staff member.” It was put to her that the company had no basis for believing that she was anything other than “fit and able.” The Complainant said: “The way I was treated inside there”, that “she had conversations with David, with her prior supervisor.” She said that she “handed in certificates that said work related stress.” It was put to her that “between January 2019 and October 2019, at no point did you say to anyone that you were badly treated at work.” She said: “I told all my issues to the [name redacted] union.” It was put to her that “you didn’t tell it to my client.”

Rebuttal

The Complainant was asked about medication. She said she was “on Lexapro until [she] got pregnant again, off them during pregnancy, back on them again.”

She was asked if she was “certified fit to go back [to work] by Dr. Miriam Hogan but still on Lexapro.” She confirmed that she was: “Yes.”

Mitigation

The Complainant was asked about mitigation. She outlined that she had one period of employment, that she applied for another 2-3 jobs, that she was doing courses to upskill and doing her programme with her counsellor. She outlined that she was a student for a year on a part-time basis. She said that she had been in receipt of illness benefit for a period also.

Final Comments

The Solicitor for the Complainant emphasised that the Complainant had a “breakdown” and was “out of work”, that there was “a lot of interaction” with the employer around that. He said that Mr. Byrne and Mr. Guiney had an ill employee, that there was a psychiatric issue, that in those circumstances it is important an employee does not go back to work too soon, that they needed to “keep an eye”, that Mr. Guiney was “left to paddle his own canoe”, that “Lexapro is an anti-psychotic medication.”

In response to the final submission on behalf of the Respondent, the Solicitor for the Complainant submitted that the law had “evolved significantly, as to what is accepted by law, as to what is a reasonable standard” since the Hennessy V Read and Write shop case (192/1978). He pointed to the size of the Respondent business and the size of the HR section, by comparison, to the small business in that case. He said that it was “down to HR to deal with it, not the two people here” [Mr. Guiney and Mr. Byrne.] He submitted that HR were “AWOL”, that the Complainant was “heavily medicated.”

Supplemental Submission – Preliminary argument – case filed out of time (statute barred)

It is the Respondent’s contention that the Complainant is statute barred from bringing the claim made by her under the Unfair Dismissals Acts 1977-2015 (“the UDA”) herein, such that the WRC has no jurisdiction to hear the said claim, and it is furthermore submitted that this application should be considered by the Adjudication Officer as a preliminary matter and the said claim dismissed accordingly.

Section 8(2) of the UDA provides that: “A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of section 41 of the Act of 2015) to the Director General - (a) within the period of 6 months beginning on the date of the relevant dismissal, or (b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause, and a copy of the notice shall be given by the Director General to the employee concerned as soon as may be after receipt of the notice by the Director General.”

The Facts

The Complainant herein was dismissed with immediate effect on 25 October 2019 for gross misconduct, a fact not disputed by her in the WRC Complaint Form filed by her with the WRC (“the Form”). This being so, she had until 24 April 2020 to submit her claim to the WRC to come within the limitation period set out at the said section 8(2)(a) of the UDA. She did not, however, submit her claim herein to the WRC until 16 May 2020, a full 21 days after the expiry of the said limitation period. Neither is the Respondent aware of any circumstances which might have amounted to reasonable cause preventing the Complainant from submitting her said claim to the WRC within 6 months of the date of termination of her employment but permitting her to bring the claim within the extended limitation period provided for at section 8(2)(b) of the UDA. 3.2 In the circumstances, it is clear that the claim herein was brought out of time and is consequently statute barred and should be dismissed accordingly.

Oral submissions at the hearing

The Respondent submitted that the case law is clear that an internal process cannot stop time running. In this regard, the Respondent cited Beaumont Hospital V Petty Kaunda (EDA1930) and quoted (at page 4): “The Court is of the view that the Complainant cannot circumvent the time limits set out in the Acts by seeking to rely on an internal procedure that did not prevent her from bringing her complaint within the statutory time limit. In line with its decision in Business Mobile Security Ltd t/a Senaca Limited the Court does not accept that the internal grievance process can take its course to extend the period for submitting a claim which in any event is limited by Section 77(5)(b) to a period of twelve months from the date of the occurrence of the event giving rise to the claim. Therefore, the Court must find that the within claim was out of time when it was presented to the Workplace Relations Commission on 4 January 2018.”

The Respondent submitted that the same logic was set out in SSE Renewables Ireland Ltd. T/A SSE Renewables case, (at page 3): “In line with its decision in Business Mobile Security Ltd t/a Senaca Limited, the Court does not accept that the internal grievance process can take its course and operate to extend the period for submitting a claim. It is accepted that the Complainant was advised by his Solicitor in writing on 12th April 2017 and 27th July 2017 that the time limit for presenting the complaint was six months. in such circumstances, the Court cannot accept that there were reasonable grounds for the delay in doing so. Therefore, the Court must find that the within claim was out of time when it was presented to the Workplace Relations Commission on 13th February 2018.”

He also cited Redmond on Dismissal Law in Ireland (at pages 508-509), which quotes the 1992 case of O’Neill V. Bank of Ireland. He submitted that when an internal disciplinary process does not make it clear that a person who has been dismissed remains employed pending the outcome of any appeal, then the person is dismissed on the date.

Submissions on the substantive case

Introduction

The Respondent is an Irish company engaged in the production and distribution of an array of well-known alcoholic drinks such as Jameson Irish Whiskey, Cork Dry Gin, Absolute Vodka and West Coast Cooler. It employs in excess of 700 people in Dublin and Cork, and has been part of the Pernod Ricard Group, one of the world's largest and highest profile drinks companies, since 1988.

The Complainant was employed by the Respondent as a Restaurant Assistant at its premises in Midleton, County Cork, from 8 January 2007 until 25 October 2019, when she was dismissed for gross misconduct with immediate effect, and copies of her original and subsequent contracts of employment were submitted.

Notwithstanding the foregoing, the Complainant was paid in lieu of six weeks’ notice, in light of her previous service, and in lieu of her outstanding annual leave. She was also paid profit share (in the amount of €12,700), as a goodwill gesture, notwithstanding that she was not technically entitled to this, having been dismissed on 25 October 2019, in circumstances where the Profit Share Scheme requires all employees to be in employment on 1 November every year to be entitled to claim any benefit thereunder.

Background

For some time prior to her dismissal, the Complainant had had a history of attendance and behavioural issues while at work, which resulted in her being issued with a final written warning on 11 March 2019. The Respondent submitted a copy of the document.

The warning was for misconduct, including failing to comply with the Respondent's clocking in procedures, clocking in for a colleague, and speaking inappropriately about her manager to other colleagues, and was to remain “live” for a period of nine months from that date. Notwithstanding the warning, however, the Complainant continued to conduct herself in a frequently unacceptable manner at work in the months which followed it. Her misconduct followed a pattern which included arriving late for work, being hungover at work, and referring to her managers in offensive and derogatory terms in discussions with her other colleagues. All of these behaviours appear to have manifested on the same day on 30 September 2019, when the Complainant a) clocked in late (and was unable to start work for some time after her arrival), b) was extremely hungover, having been out socialising the night before, and c) used extremely offensive language to describe her supervisor, [KO] to a colleague, [AH] (which was heard also by another colleague, [RQ]). The Respondent submitted a copy of [AH]’s statement.

As a result of the foregoing, the Respondent commenced an investigation into the events of 30 September and into previous attendance and behavioural issues concerning the Complainant since the final written warning issued to her on 11 March 2019. To this end, the Respondent's Food and Bars Manager, Mr. Steve Guiney, and Human Resources Business Partner, Ms. Anna Pizzo, conducted an investigation meeting with the Complainant on 7 October 2019, in accordance with the Respondent’s disciplinary policy. The Respondent submitted a copy of its disciplinary policy.

At this meeting, the Complainant, amongst other things, accepted that she had been hungover at work on the morning in question, that she had been spoken to in relation to such matters before by Mr. Guiney, and that her timekeeping needed to improve. She could not, however, recall, one way or another, using offensive language to describe her supervisors. Consequent upon this meeting, a copy of the minutes of which the Respondent submitted, Mr. Guiney and Ms. Pizzo felt the invocation of the Respondent’s disciplinary procedures to be warranted, which was accordingly recommended by Ms. Pizzo in an email to the Respondent’s Director of Midleton Campus Mr. David Byrne, and Human Resources Manager Ms. Emily Moran, on 7 October 2019. The Respondent submitted a copy of the email.  

The Respondent submits that having reviewed Ms. Pizzo’s said email, together with the notes of her and Mr. Guiney’s meeting with the Complainant, Mr. Byrne and Ms. Moran decided to accept the recommendation made therein, and Ms. Moran wrote to the Complainant accordingly on 10 October 2019 to invite her to a disciplinary hearing on 16 October. The letter alleged that the Complainant had failed to follow clocking in procedures, verbally abused a supervisor, been late for work, and been unfit for work upon arrival, and made it clear that the Respondent considered the matter to be extremely serious, and that the Complainant could bring a representative to the disciplinary hearing with her if she wished. The Respondent submitted a copy of the letter and enclosures.

Enclosed with the letter were the following documents:

·       Minutes of the Complainant’s meeting with Mr. Guiney and Ms. Pizzo of 7 October & Statement of AH

·       Statement of Mr. Guiney July 2019

·       Email from KO, 23 June 2019

·       Email from Mr. Tim O’Connor, 15 May 2019

·       Statement of Mr. Guiney, April 2019 

·       Final written warning issued to Complainant on 11 March 2019

At the Complainant's request, the disciplinary hearing was re-scheduled to 22 October, and was attended by the Complainant and her union representative and by Ms. Claire Nolan (in place of Ms. Moran) and Mr. Byrne on behalf of the Respondent. A copy of the minutes of the meeting were submitted to the WRC.  

The Respondent submits that during the hearing, the Complainant accepted that she was late for work on occasion, but put this down to the builders engaged by her to renovate her bathroom being late, causing her to have to stay home until they arrived to let them in. Whilst the Complainant appeared to accept, on the one hand, that she was unable to perform all of her duties on 30 September — presumably as a result of being hungover - she denied all of the allegations made against her by AH on the other, including the allegation that she had described her supervisor, KO, to AH in a particularly offensive manner, and denied also allegations of similarly offensive descriptions of other managers made by her to colleagues on previous occasions which were put to her at the hearing. The Complainant then alleged that Steve Guiney had advised her previously that the human resources department would find a "loophole" to get her "fired’, which Mr. Guiney denied strenuously when this was put to him subsequently. The Complainant then explained that she had had a number of issues with home and childminding in the months prior to the disciplinary hearing. When it was pointed out to her, however, that she had been given plenty of chances by the Respondent in the past to correct her behavioural and attendance issues, she did not dispute this. Ms. Nolan and Mr. Byrne concluded the hearing by advising the Complainant that they would consider the matter carefully and confirm their decision to her the following week. The Complainant subsequently sought a meeting of her own volition with Mr. Byrne the following day, 23 October 2019.

At this meeting, she advised Mr. Byrne amongst other things, that, with the exception of a few minor details, she accepted that the allegations against her were true, and moreover that she was embarrassed by her behaviour. When Mr. Byrne put it to the Complainant that her misconduct was all the more remarkable given that she was still on a final written warning, she said that she hadn't realised how serious matters were. She went on to say that her behaviour had been influenced by events outside of work, but that she did not have a problem with alcohol, a point she had also made previously in the investigation meeting with Mr. Guiney and Ms. Pizzo on 7 October. Mr. Byrne advised the Complainant that he would give due consideration to all of the points made by her and respond with a decision by Friday of that week (25 October 2019). A copy of the minutes of the meeting were submitted.

Mr. Byrne and Ms. Nolan duly met again with the Complainant on Friday 25 October to convey their decision regarding her continued employment with the Respondent to her. In this regard, Ms. Nolan advised the Complainant that she and Mr. Byrne had considered all of the facts of the matter carefully and had decided that she should be dismissed on grounds of gross misconduct, with immediate effect. Ms. Nolan stated that this had been a difficult decision to make, but that she and Mr. Byrne felt that the Respondent had no option in the particular circumstances. She went on to advise the Complainant that she would be paid in lieu of notice and would also receive her profit share. Lastly, Ms. Nolan confirmed to the Complainant that she had five days to appeal this decision, and the minutes of this meeting, together with the letter to the Complainant of the same day confirming her dismissal. A copy of the letter was submitted.

The Complainant availed of her right to appeal her dismissal, by way of a letter to the Respondent's Human Resources Director, Mr. Colm Maguire dated 29 October 2019, Mr. Maguire acknowledged receipt of this to the Complainant by letter dated 4 November, in which he also confirmed that he had appointed Ms. Alma Comiskey to hear the appeal. The Respondent submitted copies of both letters.  The Respondent submits that to accommodate the Complainant and her union representative, the appeal was not ultimately heard until 4 February 2020.

At the hearing, which was attended by the Complainant and her union representative, and by Ms. Comiskey and Mr. Paul Wickham, General Manager Midleton Distillery on behalf of the Respondent, the Complainant’s representative acknowledged that “on paper”, the Complainant’s behaviour warranted some level of disciplinary sanction. He then re-iterated that the Complainant did not have a problem with alcohol, and that this had been confirmed by her doctor, but said that, notwithstanding this, she had been using alcohol as a “crutch” to help her to deal with a number of serious issues in her personal life, and that at times this had impacted on her attendance and performance at work. He went on to contend that the Respondent could have intervened earlier, and done more to support the Complainant before matters became so serious as to warrant her dismissal, and that it would have done so had she worked in “the distillery.” A copy of the minutes of this meeting were submitted.

Following the appeal hearing, Mr. Wickham and Ms. Comiskey gave careful consideration to the points made by her union representative on the Complainant's behalf but decided ultimately that the dismissal was fair and should stand. This was communicated to the Complainant by way of letter dated 26 February in which she was advised that the reasons for the decision were the unacceptable nature of her behaviour in front of colleagues and members of the public, and the pressure this put her colleagues under at work, the fact that she was still subject to a “live” final written warning while behaving in this way, the fact that she was spoken to by her managers repeatedly during the period in question in an attempt to correct her behaviour without recourse to formal sanction, and the fact that she had not availed of the Employee Assistance Programme, despite having been made aware that this service was available to her. The Respondent submitted a copy of the letter upholding the dismissal and rejecting the Complainant’s appeal.

The Respondent’s position is that notwithstanding that she was subject to a final written warning for misconduct which had been issued to her on 11 March 2019, the Complainant resumed behaving in an unacceptable manner shortly after this, in April 2019, and continued in this vein until her dismissal on 25 October 2019, following a full and fair investigation and disciplinary process, and subsequent internal appeal. The type of misconduct engaged in by the Complainant between March and October 2019 was unacceptable on any reasonable and objective analysis, and was moreover a repeat, in one material respect at least, of the misconduct for which she had received the said final written warning in March, namely that of speaking inappropriately about her managers to her colleagues. That warning had made it plain that any re-occurrence of the misconduct in question would not be tolerated and could lead to “further disciplinary action, up to and including dismissal" In the circumstances, and having regard moreover to the adverse effect the Complainant's misconduct was having on the morale of her colleagues, and to the fact that, ultimately, she accepted that she had behaved as alleged, it is submitted that she was dismissed fairly, following the application of a full and fair process, and that her dismissal was accordingly lawful, within the meaning of section 6(4)(b) of the Unfair Dismissals Acts 1977-2015, and the Adjudication Officer is respectfully urged to so find.

Note of Adjudication Officer: For clarity, the Respondent entered a number of documents which it refers to in its submissions as “minutes”, some of which are in fact “notes” rather than minutes, as they were not agreed with the Complainant.

Mr. Steve Guiney – First witness for the Respondent

Mr. Guiney gave evidence that he was the food and beverage manager for the Respondent company, at the relevant time; that his role indirectly involved the supervision of the Complainant, that he had had a good relationship with her. He outlined that, despite that, he issued a final written warning to her in March 2019.

He explained that for a few weeks, things went very well, then the issues started to re-surface again. He said that initially it was minor issues, but then she was very, very late which required his intervention. He said that he had a further meeting with her on April 18th 2019.

A contemporaneous note Mr. Guiney wrote of the meeting, he recorded in his own files. He said that there were some minor improvements at the start. Then, he said a month after that, the Complainant was an hour late for work. Then, after that, more issues regarding time keeping. He outlined that in June, she was late on one occasion. On July 13th, 2019, she did not report to work at all. He said that he discussed it with her the following Monday.

He said that, at that meeting, he reminded her about the final written warning. He said that she confirmed that she was using alcohol, not on a regular basis, but inappropriately when she did (i.e. that when she drank, she drank too much). He said that she said at that meeting that she was not an alcoholic. He said that he told her about the EAP, and offered her the support of it.

He said that on September 30th, 2019, he was not in work. The following day, October 1st, 2019, he was approached by KO in respect of the Complainant’s behaviour.

On cross-examination

It was put to the witness that he commenced employment for the Respondent company on 9th April 2018, and that the Complainant had been employed there since 2005, that she had been with the company for 13 years before he arrived. He was asked about his experience and qualifications for the role. He said that his prior experience was as the general manager in The Oliver Plunkett, a pub in Cork city.

He was asked if when he started in the role, whether he was briefed on any of the employees. He said: “No – nothing in particular, but I met all of my direct reports one-to-one.”

He was asked if had been given any information by human resources about particular psychiatric or psychological issues? He confirmed that he had not; And whether he had received any information had been forthcoming from Mr. Kevin Fagan in Dublin. Again, he confirmed it had not.

He was asked whether at that time, when he was issuing these warnings to Ms. Foley, whether he was familiar with the processes. He said that he was. He explained that he knew about the EAP as he had utilised it himself.

He was asked about the handling of alcohol issues, in the context of working in a distillers. He stated that he would have dealt directly with HR with any issues relating to alcoholism.

He explained that the meeting of July 15th, 2019, was not an official HR meeting. He sent a note to Ms. Pizzo (HR, Dublin) regarding the meeting, subsequent to holding it.

It was put to him that the meeting was: “Let’s call a spade to spade – mano mano discussion – pull yourself together – get your act together. It was to get Yvonne to pick her socks up.”

Mr Guiney clarified that it was not a warning. He said that: “She was on a final written warning at that stage already – this was an informal meeting.” He said he was “coming from the heart.”

He was asked whether he thought she was going to listen. He said that in his experience, some people listen, and some do not.

He was asked about training. He said that there was “plenty of training for circumstances like this.” It was put to him that his previous employer was much smaller than the Respondent, which he accepted.

He was asked when was the first time that Ms. Pizzo had experience of the difficulties the Complainant was experiencing. He said that the first incident was in 2018.

It was put to him that in January 2019, Ms. Pizzo was dealing directly with the Complainant – that she was on sick leave for issues regarding mental health, that he was not party to that (‘not kept in the loop’).

It was put to him he had tried to manage the situation himself by calling the meeting with the Complainant in July 2019, but did not have the knowledge-base or experience to deal with it. He explained that the reason he called the meeting that morning was that the Complainant had not turned up for work.

It was put to him that there was a plethora of correspondence - Mr. Kevin Fagan, Ms. Anna Pizzo, Dr. Miriam Hogan – and asked whether or not he was aware that the Complainant had a psychiatric condition. He said: “I can’t recall that was discussed other than just to note the matter.” He said: “I was aware the entire time that Ms. Foley was on sick leave that she had some mental health issues and that she was seeing Corporate Health.” He was asked whether he was aware of the detail of it, of the extent of it, that it was a psychiatric condition, on July 15th, 2019, when he called the meeting. The witness said that this was a mischaraterisation, and that the reason he called the meeting was that the Complainant “hadn’t turned up for work.”

Rebuttal

On rebuttal, the witness clarified that from April 2019 through July 2019, the Complainant was reporting for work; that she was not off sick; that she was not certified sick; that he had no reason to believe she was anything other than fit for work.

Mr. David Byrne – Second Witness for the Respondent

Mr. David Byrne gave evidence on behalf of the Respondent. He outlined that he is the Director of Midleton Campus of Irish Distillers, since 2015. He is the most senior executive involved in the Cork campus.

He said that on 23/10/2019, a meeting requested by the Complainant in the context of a disciplinary meeting that had occurred the previous day. He said that “the day after we had the disciplinary meeting in Swiss Cottage, we met for a chat at about 5pm, a day later to discuss the circumstances and situation.” He said that the Complainant was late 91 times out of 118. He said that in relation to alcohol, she confirmed that she did not have a problem with alcohol, and she said that had been confirmed by her doctor. After that meeting, he “discussed it with HR department – Ms. Anna Pizzo”, and “probably Clare Nolan as well.”

He said that they told the Complainant that they would “take some time to think about it, consider everything we had heard and make a decision by the Friday.” He said that the decision was “to dismiss” the Complainant and that that was “communicated to her on the Friday.” [Ms. Clare Nolan was in attendance at the hearing, and was proffered as a witness to confirm this, if required.]

He outlined that the Complainant was paid six (6) weeks’ pay in lieu of notice as well as profit share.

He said that the conclusion the Complainant should be dismissed summarily for gross misconduct was reached as there had been “a series of incidents” over the course of the year. He said: “Irish Distillers are a very fair employer.” He said that the Complainant had a good relationship with her employer (with DB) and with her colleagues. He said that the decision to dismiss her was taken reluctantly. He said that she was “given every opportunity to turn up on time, to look after her job, to be in a fit state.” He emphasised the impact on the morale of the Complainant’s colleagues. He said that there was a team of between forty and sixty-five people.

On cross-examination

It was put to Mr. Byrne that the Complainant got on with colleagues and was a good worker. The witness said that “her timekeeping was an issue.” It was put to him that the Complainant was usually there post-5pm helping to set up for the following day and that the company as saying that she was “coming in five minutes late, four minutes late, ten minutes late but it was not unusual for her to work on fifteen minutes or thirty minutes [at the end of her shift].” The witness said that “the reality is that the start time is critical. It’s a business and the business doesn’t end exactly on time. The restaurant opens at 10 am. Everybody’s paid until they clock out.” He explained that the finish time varies and that staff are paid for that. He was it was “in the contract that the finish time varies.”

He was asked about the decision to dismiss the Complainant. He said that it was taken by the HR Department.

The witness pointed to an incident in 2018. He said that there was an incident following a late night out in October 2018. He said that the Complainant left the site saying “I’m going to get a cert. for a few weeks, that would teach [them] a lesson” and went and got a cert. He said that medical reports came as a result from that.

He flatly denied, when it was put to him, that the Complainant was innocent: “Absolutely not.”

It was put to the witness that the distillery knew of the Complainant’s psychiatric condition, as far back as November 2018 and that was on foot of a medical report from the Occupational Physician.

He was asked about the Complainant’s meetings with Mr. Guiney and whether he reported to him about those matters contemporaneously. Mr. Byrne said that the Complainant came back to work on a phased basis, and that what was being noticed was her behaviour, that if she was socialising on Friday, Saturday, Sunday, that resulted in absences from work, late arrival to work, incidences at work.

He was asked about Dr. Miriam Hogan’s report and the involvement of Mr. Kevin Fagan (HR Dublin).  The witness said that in terms of the process, the advice is, and the procedure is, that the Complainant was assessed and deemed fit to return to work and she returned on a phased basis. The witness said that he did have conversations with HR (Kevin Fagan).

It was put to the witness that he had already formed a view in relation to these matters, and that he thought the Complainant was not bona fide, that he was prejudiced to this in relation to this right from the beginning. The witness said: “I absolutely disagree”, “fully disagree”, that he “had a very good relationship with [the Complainant] since the start.” He pointed to the meeting he and the Complainant had two days after the meeting. He said that there had been “lots of conversations”, that “we looked after Yvonne.” He pointed to her “entire employment record” and said that they “gave her every chance, every opportunity.”

It was put to him that the Complainant trusted him. It was put to him that in some organisations, there is a culture of an ad misericordiam meeting.

The witness said that the decision was made to dismiss her, that “the matter was outside my hands at that point”, that she was on “a final written warning”, that it was “a very reluctant decision” but that there was “no alternative.”

It was put to the witness that there was an alternative. He pointed to an incident involving another staff member (JH) which occurred outside of work, and which also involved the Complainant’s husband, which subsequently caused trouble in the workplace and had to be managed. It was put to him that the Complainant could not be held responsible for anything her husband had done. He said that on 11/05/2022, the Complainant was late for work the day after the staff night out.

He was asked about a round of redundancies which occurred a year after the Complainant’s dismissal and he was asked whether the Complainant would have been entitled to it. He said it was “impossible to say.” It was put to him that her redundancy entitlements would have been somewhere in the region of €40,000.

Rebuttal

The suggestion of whether the witness had pre-judged matters was put to him. He was asked whether he was briefed in a macro way? He said he was briefed in a macro and a micro way. He said he was given general updates. It was put to him “but you didn’t make any specific decisions” and that “that was the function of her more direct managers” which the witness agreed with.

The issue of the Complainant’s phased return to work was raised with him and that as of March 2019, that phased return had concluded – the Complainant was fully fit and attending work.

He said that the Complainant was paid 6 weeks’ time in lieu as well as a payment of profit share which he said was a “gesture of goodwill.” He said that she was not contractually entitled to it.

He said that the appeal hearing of 11th February 2020 was attended by claimant and her trade union, that there was no attempt to contradict the allegations; instead, she confirmed that she was not an alcoholic at that meeting, again.

Final Comments

In terms of mitigation, the Respondent’s Solicitor submitted that the only period of loss that is reckonable is approximately one year, that the Complainant had made five or six attempts during that time to obtain work, and that she had a period of maternity leave.

The Solicitor for the Respondent submitted that it is “not just an entitlement but a responsibility to manage”, that the employer was “managing her tardiness, appearance at work etc.” as they were “fully entitled to do and indeed must do in order to maintain a properly orderly workplace.”

He cited the EAT case of Hennessy V. Read and Write Shop (192/1978). He said that it set out the applicable test, since then. He submitted that the employer had conducted a comprehensive and thorough process, that the Complainant was given an opportunity to present any factors in mitigation and that the Respondent came to a reasonable conclusion. He submitted that her manager met with her twice to warn her of the consequences and that she was already on a final written warning.

He cited McGee V Peamount Hospital. He respectfully submitted that it was well-established that it was not the function of a WRC Adjudication Officer to substitute his/her judgement for the judgement of the company, that his/her role was to determine whether what the employer had done fell within the “range of a reasonable response” and that it was his submission that “it did.”

He cited the EAT case of Griffin V Beamish & Crawford and said that repetition of misconduct in circumstances of repeated warnings is material in considering whether or not a dismissal is fair.

He submitted that the Respondent “dealt with Ms. Foley on the basis that she was fully fit” that there was “no basis” for dealing with it otherwise, that the Read and Write case set out the standard, that that was the applicable test.

Preliminary argument – statute barred - out of time

The Respondent submitted a supplemental submission (and made oral arguments at the hearing) that the case was statute-barred, i.e. that it had not been filed within the six months, as required within the Act; and further that no “reasonable cause” had been advanced for same; and argued that the Adjudication Officer should therefore not exercise her discretion to extend the time-frame.

The Solicitor for the Complainant accepted 25/10/2019 as the date of dismissal, and made arguments for an extension of time, including that the union who had been previously representing the Complainant had been engaging actively with the Respondent for a period of months following her dismissal and the statute should not run unfairly against her, that there appeared to be a genuine error on behalf of the prior representative in failing to file the complaint in time, and that the advent of Covid-19 had impacted seriously causing ‘communication difficulties’, also within the relevant initial six month time-frame.

Based on a date of dismissal of 25/10/2019, the case had been filed three weeks outside the initial six-month window. However, I find, as a matter of law, that the case was filed in time. The Respondent company submits that it dismissed the Complainant summarily for gross misconduct by letter dated October 25th 2019, and as a gesture of goodwill paid her six weeks’ notice pay and that year’s profit share, stating: “I regret to inform you that the company has made the decision to terminate your employment on the grounds of gross misconduct with immediate effect, having regard to the seriousness of the allegations, and the fact that a final written warning was issued to you in respect of similar previous misconduct on 11 March which has still not expired.

You have the right to appeal this decision. Should you wish to exercise this right, you should appeal in writing to [CM], Human Resources Director within 5 working days from receipt of this letter.

In recognition of your service, you will be paid 6 weeks’ in lieu of notice (emphasis added) I can also confirm you will receive profit share and any other entitlements owed to you (emphasis added) …”

Paragraph 4 of the Respondent’s disciplinary policy, entitled “Disciplinary Procedure” sets out, inter alia, that “No employee will be dismissed for a first breach of a discipline except in the case of gross misconduct when the penalty will normally be dismissal without notice or payment in lieu of notice.”

Paragraph 7.6 of the Respondent’s disciplinary policy, entitled “Summary Dismissal” sets out what summary dismissal entails: “If, on completion of the investigation, the Company is satisfied that gross misconduct has occurred, the result will normally be summary dismissal without either notice or payment in lieu of notice.”

I find, as a matter of fact, that what the Respondent company did was purportedly dismiss the Complainant for ‘gross misconduct’, but not summarily. I find, as a matter of fact, that the Respondent dismissed the Complainant and gave her six weeks’ notice of her dismissal and exercised its contractual right to pay her in lieu of notice. It also – and this is of note – paid her that year’s profit share in circumstances where, in order to be eligible to receive the profit share, an employee has to be in employment on November 1st of the year in order to benefit from the terms of the profit share scheme. It is the Respondent company’s position that it summarily dismissed a long-serving employee for ‘gross misconduct’ – conduct so intolerable no reasonable employer could be expected to tolerate it a minute longer - a week prior to the key date in terms of eligibility for the profit share scheme and still arranged for her to benefit from the profit share scheme. There is simply no reality to that claim.

The correct date of dismissal is when the notice period ends, which I calculate to be 06/12/2019. While the Respondent alleges that it dismissed the Complainant with immediate effect, in fact it did not. It dismissed the Complainant with six weeks’ notice and exercised its right to pay her in lieu of notice, and it correctly treated her as being in employment on the relevant date for the purpose of her accessing a profit share. That means that the initial six-month window under the legislation (“within” six months) brings the initial legislative deadline to 05/06/2020. This complaint was received by the WRC on 16/05/2020, i.e. it was filed in time.

Substantive case

The Respondent refers to there being a “final written warning” still live (dating from March 2019) on the Complainant’s record and relies on it as having formed part of the Respondent’s reasoning underpinning the Complainant’s dismissal. However, having read the Respondent’s handbook which outlines the potential sanctions under “7.4: Disciplinary Action.” It states there to be three (3) possible sanctions, and the length of time they remain live on an employee’s file.

It sets out the following:

-          Verbal Warning – 6 months

-          Written Warning – 9 months

-          Final written Warning – 12 months

The warning issued to the Complainant in March was issued for nine (9) months, which means, of necessity, that it was not a final written warning. An employer is bound by the terms of its own policies; and there is no final written warning nine months in length in the Employer’s handbook or policies. No such sanction exists. Therefore, what was issued to the Complainant in March 2019, applying the Respondent’s own policies, was a written warning. The fact that the employee was (putatively) on a live final written warning at the time of the events precipitating her dismissal was cited by the Respondent as one of the key considerations upon which it made the decision to terminate her employment. Having had regard to the Respondent’s own dismissal letter and taking its position at its height, the fact remains that the employer relied upon a sanction being in force (‘a final written warning’) which was not in force as one of the bases for dismissal. That fundamentally undermines the decision to dismiss the employee and it utterly undermines any decision to dismiss her summarily – which is what the Respondent employer claims it did.

The Respondent again relied on the ‘final written warning’ in its appeal decision, stating as its third reason for upholding the dismissal:

“Having reviewed the details of the case, we find that the basis of your appeal are unfounded and conclude that the decision to dismiss was fair and reasonable, and should be upheld for the following reasons:

…3. Despite being issued with a final written warning on 11/3/19 for a number of attendance and behavioural related issues, the records show that an unacceptable pattern of attendance and behaviour continued thereafter…”,

ultimately concluding the letter with the phrase “…leaving the company with no option but to dismiss you.”

Again, the Respondent has had regard to a fundamental consideration, which was not correct, thus undermining its decision.

I find that the dismissal of the Complainant was procedurally unfair. I also find that, as a result, her dismissal could not fall within the “band of reasonableness” of potential disciplinary sanctions open to the employer, in the totality of the circumstances of this case, due to the manner in which the employer’s procedures were misapplied. In particular, the Respondent did not consider the possibility of any other disciplinary sanctions, as it incorrectly believed the Complainant to be on a live final written warning.

I do not accept the submission on behalf of the Complainant that “the Respondent should have had more consideration of the common complication of anxiety being an increased likelihood of substance misuse, such as alcohol”, in circumstances where the Complainant had been certified fit to work. I do not accept that the Respondent employer is entitled to substitute its own judgement or thoughts for a medical opinion, in relation to whether or not an employee is fit for work. If the employer had concerns in relation to the employee’s fitness for work, the appropriate course of action for the employer would have been a second referral to Occupational Health.

The fact the Respondent company is a distillery is of relevance also. It is common case that the Complainant did not have an alcohol dependence, which is of significance from a legal perspective. It is also common case that she was using alcohol inappropriately, she submits as a “crutch” in order to cope. In that context, it is noteworthy that the Complainant’s remuneration package, as per her contract of employment, included both free alcohol and discounted alcohol, supplied to her by her employer.

After many years of a happy and functioning employer-employee relationship, relations had frayed between the parties in recent years. The employer appears to have concluded that it had reached the limits of its tolerance and that it sought to unilaterally compromise the Complainant’s employment, by dismissing her and paying her six weeks’ notice pay and annual profit share ‘in recognition of her service.’ It is legally precluded from doing so. It is hard to escape the conclusion that the Respondent was largely improvising instead of applying its own policies consistently and fairly. I accept the Complainant’s evidence that she did not realise the seriousness of the warning she received in March 2019; and given the ad hoc application of the Respondent’s policies, I find that this is unsurprising.

Given the significance of dismissing an employee with fourteen (14) years’ service, how the Respondent managed this situation does not stand up to scrutiny. As an aside, it is to the Complainant’s very great credit that subsequent to her job loss, she voluntarily attended an alcohol rehabilitation programme and now does not drink at all, and I wish to commend her in that regard.

The maximum jurisdiction under the Unfair Dismissals Act 1977 refers to two years’ remuneration, and it refers to all of the elements of an employee’s compensation package, not simply salary/wages. The jurisdiction refers to a monetary amount rather than temporal period.

While I accept that re-instatement and re-engagement are primary remedies, and compensation is a secondary remedy, on balance, I find that compensation is the correct legal remedy in this instance, in particular due to the passage of time, in the interim.

I am obliged to award a “just and equitable” amount of compensation, in the full circumstances of the case, having had regard to a number of things including the reasonableness of the behaviour of the employer and any mitigation undertaken by the employee, to take account of any losses up to the date of the filing of the WRC complaint as well as future losses.

Under s. 7(3) of the Unfair Dismissals Act:

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Act, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

I find for the Complainant.

I find that her case was filed “within six months” of the conclusion of her employment, taking proper account of the notice period.

I find that the Complainant was unfairly dismissed by the Respondent, for the reasons set out above.

I find that her dismissal was procedurally unfair and as a knock-on consequence of that procedural unfairness, I find that her dismissal was incapable of being substantively fair. Specifically, at each stage, up to and including appeal, the Complainant was treated as though she was on a live final written warning when in fact that was not the case due to the misapplication of the Respondent’s own procedures.

I gave careful consideration to all of the options available to me – re-instatement, re-engagement and compensation.

Having carefully considered the facts of the case, and the relevant elements of the applicable law, I find that compensation is the correct legal remedy in this case, and I direct the Respondent to pay the Complainant €35,000 within 42 days of the date of this decision.

Unfair Dismissal; Statute Barred; Out of Time; Alcohol; Summary Dismissal; Gross Misconduct;