An employee, who was dismissed for ‘unacceptable behaviour’ related to a drink problem won the right to be re-engaged by his former employer.
The Employment Appeals Tribunal concluded that the dismissal was ‘procedurally unfair’. and while it recognised that both parties were ‘genuine’ and “showed decency in presenting their case and throughout the employment relationship” the employee “did not get his opportunity to present his case, or to seek advice” prior to his dismissal.
It considered that the option of re-engagement, as provided for by section 7(1)(b) of the Unfair Dismissals Act, 1977, be availed of.
This provides for “re-engagement by the employer of the employee, either in the position which he held immediately before his dismissal, or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable, having regard to all the circumstances”.
The claimant was employed as a planning and production scheduler. In January 2009, he received a ‘final and written warning’, which remained active for a year. Similar problems had arisen in 2000 and 2002.
SMELLED OF ALCOHOL
On January 18, 2010, the claimant could not be located at work. The operations manager discovered that the claimant had left without clocking out and that the same thing had happened a week previously. The manager met with the claimant and noticed that he was slurring his words. The manager could also smell alcohol off his breath.
The claimant initially denied that he had been drinking, before admitting that he had been. Four days later, he entered a residential rehab facility. He was paid during his absence. The claimant wrote to his employer, insisting that he had ‘turned things around’ and appealing for ‘leniency’.
The claimant completed his rehab programme and attended a disciplinary meeting in April 2010. He undertook to engage fully in the aftercare programme. The company doctor reported that he was fit to return to work.
The respondent imposed a sanction of two months’ suspension without pay and a final written warning. The warning stipulated that the claimant must continue in the aftercare programme and that he could be subject to random alcohol testing. There was no expiry date on the warning. The claimant did not appeal the decision.
CALLED IN SICK
According to the respondent, on 23 February 2011, the claimant rang the operations manager to say that he was sick. The call “ended abruptly”. The manager thought that the claimant was drunk – he tried to call him back, but the claimant did not answer.
According to the claimant, he drove to work and then realised that he ‘wasn’t in a fit state to go into work’ so he went home and rang in sick. He was aware that he was on a final written warning, but “did not think that ringing in sick would result in his dismissal”.
The following day, he went to work as normal and was called to a disciplinary meeting without prior notice. He was informed that he could have a representative, but was not informed that he could seek advice.
On February 25, he was informed of the termination of his contract. His employer agreed to his request to be allowed to resign, as he did not want the stigma of having been ‘sacked’.
According to the respondent, as the claimant had gone ‘back on the drink’, he had broken his commitment to continue with the aftercare programme, calling the respondent’s trust in him into question.
LOST CONFIDENCE IN CLAIMANT
The claimant was dismissed because the respondent no longer had confidence in him.
It had been specifically stated that failure to show the required improvements would result in dismissal.
There was never an issue with the claimant’s work. However, his behaviour had been unacceptable and “warranted dismissal for every incident”. The process had been ‘drawn out’ because the respondent was ‘trying to do its best’ for the claimant. The eventual dismissal followed an “accumulation of events”.
The claimant accepted that the respondent had tried to help him with his issues, paying him while he was in rehab. The firm offered to continue to pay his health insurance and for rehab after he left his employment.
He was aware from the warning letters that failure to keep up his commitments would lead to dismissal, but did not think that ‘ringing in sick’ warranted it. He “did not get his opportunity to present his case, or seek advice”. (Gerard Enright v Teleflex Medical Europe, t/a Teleflex Medical – UD 1370/ 2011)