Case Number: EDA145. Labour Court
| Judgment Date | 01 March 2014 |
| Docket Number | EDA145 |
| Court | Labour Court (Ireland) |
|
FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : AN EMPLOYER
- AND - A WORKER (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. An appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. This is an appeal under the Employment Equality Acts (the Act) by a Worker (the Complainant) against Equality Officer Decision No DEC-E2012-134 issued on 23 October 2012. The Equality Officer determined that the Employer (the Respondent) did not discriminatory dismiss the Complainant on the grounds of his disability contrary to Section 8 of the Act. The Complainant appealed against that decision to this Court on 3 December 2012. The case came on for hearing on 26 July 2013. The Court adjourned to allow the parties make further submissions to the Court. These were delivered to the Court on 22 October 2013.
DETERMINATION:
The complainant states that he was employed by the respondent from August 2003 until he was dismissed on 1 October 2009. The complainant states that he suffered from a series of brain haemorrhages which necessitated medical interventions by way of brain surgery. The complainant submits that he began to suffer from depression. He developed an alcohol problem and was in due course medically diagnosed as an alcoholic.
He states that for a long time he did not acknowledge that he had a problem with alcohol and was in denial. He states that he did not disclose his alcoholism to his employer. He states that his employer was aware the he suffered with depression.
He acknowledges that he had an unsatisfactory attendance record and as a result was processed through a disciplinary process by the Respondent. This resulted in him being issued with a series of incremental warnings up to and including a final written warning, stage 4 of the company disciplinary procedures, on 25 May 2009. Under the procedure the warning remains on the personnel record for 12 months.
He states that in June 2009, he accepted that he was an alcoholic and took steps to deal with his problem. He arranged to attend a full-time treatment programme for a period of three months. He states that he notified the Respondent that he was being admitted to the programme before he commenced treatment. He states he did this by providing the Respondent with a medical certificate on the one hand and by way of a telephone conversation between a member of his family and the HR Manager.
He states that, following successful completion of the course of treatment, he applied to return to work. He met with the company on 1 October 2009 and outlined the steps he had taken to deal with his disability. He states that he was informed that the respondent would take time to consider the matter and would revert to him.
He states that on 6 October he was issued with a notice of dismissal. The stated reason for the dismissal was that his attendance record for the period 19 May 2009 to 22 June 2009 did not meet the standards required by the Company.
He argues that the Respondent was aware that he had a disability and made no effort to make reasonable accommodation to enable him to return to work following treatment. He argues that this amounts to discrimination on the grounds of disability. Furthermore, he argues that the respondent's failure to send him for a medical examination to establish his capacity to carry out the duties of his post amounted to a failure to reasonably accommodate him. He notes that the respondent has in the past assisted at least two other employees with their alcohol problems and gave those employees an opportunity to prove that their treatment had been effective and successful.
Remedy
The complainant seeks reinstatement, re-engagement and/or compensation and to be afforded the reasonable accommodation to discharge his duties.
Respondents Position
The respondent states that it dismissed the complainant from employment on 2 October 2009 at the end of a long disciplinary process that commenced in January 2009. It states that the decision to dismiss was based on the complainant’s unacceptable attendance record.
It states that in January 2009 the first phase of the attendance management procedure commenced when the Complainant was counselled regarding his poor attendance record in 2008. He was advised that his attendance record was unacceptable and without improvement he would be subject to further sanctions leading ultimately to dismissal. He was also told that the company would provide whatever assistance was necessary to support him and to assist him address his poor attendance record.
It stated that the complainant was subsequently absent from work from 2 February until 9 February 2009. On 13 February he left work without permission. He did not make contact with it until 23 February when he cancelled a scheduled attendance review meeting. He was thereafter absent from work and did not attend the meeting when it was rescheduled for 11 March 2009.
It stated that he was instructed to attend work on 23 March. He agreed to do so but failed to return to work. He finally returned to work on 26 March 2009.
The Respondent decided to process his poor attendance record through the disciplinary process. Management formed the view that he was unfit to resume work on that day and he was subsequently certified as unfit for work until 5 May 2009.
It stated that on 13 May an attendance review meeting was held with the complainant. He was represented by his trade union representative at the meeting. His poor attendance record was discussed with him particular attention being directed at the protracted period of absence without leave (20 days). He did not provide a satisfactory explanation for his absence or disclose any extenuating circumstances that might excuse them. As a consequence he was issued with a final (stage 4) written warning.
It submits that the final warning makes it clear that he was being afforded a final opportunity to correct his attendance pattern or face dismissal.
He was again offered support to deal with any matters impacting upon his capacity to attend at work. He declined the offer. The sanction and conditions were accepted in full by the complainant and his union representatives.
It submits that between January 2008 and June 2009, it had arranged for the complainant to have 7 reviews with its Doctor, an occupational health specialist, regarding his capacity to attend at work and perform his duties. He did not raise the issue of an alcohol addiction at any of those reviews.
The complainant failed to attend at work as required and on 22 June 2009 it conducted a disciplinary investigation meeting with the complainant. He was accompanied at the meeting by his trade union representative. He was advised that his employment was now at risk. He did not disclose an alcohol addiction at that meeting either.
The complainant was informed that the company would consider the situation and revert in a couple of days. It states that on reflection it decided to dismiss the Complainant.
A meeting was scheduled for 29 June 2009 to convey the company's decision to the complainant. He did not attend for work that day and did not attend the meeting. It states that it subsequently became aware that the complainant was going into treatment for alcoholism. Following this and based on medical advice and an appeal from the complainant's family a decision was made to defer the final meeting and not to issue him with notice of termination until after he completed his treatment.
It states that it met the complainant on 1 October and following that meeting on 2 October 2009 it issued notice of dismissal to him.
The complainant unsuccessfully appealed the decision to dismiss him through the appeals procedure.
Matter for Decision
The issues the Court must decide are
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•Whether or not the respondent discriminatorily dismissed the complainant on grounds of his...
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