In the case of A Porter v A Hospital ADJ-00027151 the employee argued that he had been unfairly dismissed on the grounds of gross misconduct. It was alleged by the employer that the employee had failed to keep in touch with his employer during an absence of 20 weeks, that he was in breach of the absence policy regarding medical certificates and his refusal to follow the advice of the Occupational Health Advisor and get treatment for his addictions.
Unfair Dismissal Act
The Adjudicator in this case looked at the key provision for unfair dismissal namely Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) which provides:
“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”
It was also restated that the burden of proof rests with the respondent or employer to establish that there were substantial grounds justifying the dismissal of the complainant employee in this case.
One of the key questions for the Adjudicator to consider was whether the decision to dismiss the employee was in proportion to the conduct i.e. did the punishment fit the crime?. In essence the Adjudicator had to decide whether the decision of the hospital to dismiss the employee was the action of a reasonable employer.
The Adjudicator observed “…All contracts of employment are based on a simple premise that an employee will attend work regularly and carry out a specific job for an agreed wage. When an employee fails to attend work, an employer must give some consideration to the cause. A person suffering from a serious illness such as cancer may be out of work for six months or more, before they recover and can return to work. Similarly, an employee suffering from a psychiatric illness or an addiction is entitled to be treated with understanding and fairness, and to be facilitated with time off to get help and return to work and normal life”.
It was noted that the employee in this case had previously attended the hospital occupational health advisor who recommended that the employee attend a residential drug treatment programme but the complainant employee failed to attend stating that the only programme he could find was six months in duration. The WRC found this difficult to understand and noted “Even up to the day of the appeal hearing, the complainant provided no evidence that he had taken action to address his drug and alcohol problems or that he was capable of returning to work”.
The Hospital “Intoxicants Policy” in the staff handbook also provided “Alcohol and other drug addictions / substance abuse / addictions are recognised as diseases responsive to proper treatment and as such, staff suffering from such addictions will not be discriminated against on the basis of his / her illness in accordance with the terms of the Employment Equality Act 1998 – 2011. Staff who have an alcohol or drug problem must inform their line manager and will be offered assistance and given the opportunity to do something positive about their problems. Staff will be encouraged to avail of this option. However, should an staff (sic) fail to continue with treatment or respond to same, he / she may be subject to disciplinary action up to and including dismissal where appropriate.”
The hospital gave evidence that the complainant employee did not respond to any of the correspondence sent to him and the Adjudicator observed “…….it is my view that, if the complainant had responded to any of the four letters from the HR Department on July 15th, August 6th, 19th or 23rd, he could have got help to identify a treatment programme that was suitable to his needs. In the letters of August 19th and 23rd, he was clearly informed that if he did not contact the HR Manager, he would be dismissed. It was unacceptable for the complainant not to respond to any of the four letters and to ignore the efforts of his employer to contact him”
The employee had outlined a number of mitigating circumstances in his favour namely that (a) the sanction of dismissal was disproportionate (b) he had no previous disciplinary record (c) he was suffering from depression and (d) his partner was expecting a baby and they had lost their accommodation.
The Adjudicator noted “I have taken account of these mitigating circumstances. It is clear to me that the complainant was not dismissed because he has a drug and alcohol problem, but because he failed to engage with his employer over a period of 20 weeks and to get support and return to work. It is my view that, if he had cooperated with his employer from early on, or even from June 2019, when the OHC advised him to get treatment, he could have prevented his dismissal. While I accept that the domestic and health issues he had to deal with were stressful and challenging, one of the positive things in his life was his job. He was a member of SIPTU and had the support and resources of the union available to him, but it’s clear to me that he didn’t look for help from the union until he had made his situation irretrievable. On the day of the hearing of this complaint on August 19th 2020, I saw no evidence that the complainant had taken responsibility for his actions”.
The Adjudicator also felt it was a “very serious situation when an employee ignores a request of his or her employer to get in touch during a period of illness“ and referred to the case of Coughlan v DHL which sets a high bar before an employee can be dismissed without notice.
The complainant also submitted a number of grounds whereby he felt that the procedure in dismissing him was unfair however the Adjudicator observed that any procedural flaws in the disciplinary investigation and hearing were corrected by the subsequent appeal hearing. The Adjudicator also noted that the disciplinary investigation could have been placed on hold had the employee attended a meeting with the hospital to discuss his treatment. The Adjudicator found “...that, on the whole, the requirement for fairness and the principles of justice have not been compromised”
The Adjudicator concluded that “it is my view that the complainant’s absence in July and August 2019, his failure to send in medical certificates and his failure to respond to four letters from the HR Department asking him to contact them, was a reasonable cause for his dismissal. I find that the procedure that ended with his dismissal was not unfair”.
Employment law case tip
Employers should use this case as an opportunity to review their contracts and Handbook/Policies and Procedures to ensure they have a comprehensive absence procedure and that this links/ties in with the Company disciplinary procedure in the event that the employee fails to adhere to it. In the event the employee fails to engage and/or comply with the terms of the absence policy, the employer may have cause to dismiss the employee however proper legal advice should be sought in all cases