A Verger v A place of worship/heritage site ADJ-00027984 concerned an unfair dismissal case ...

A Verger v A place of worship/heritage site ADJ-00027984 concerned an unfair dismissal case before the Workplace Relations Commission (“WRC”) under the Unfair Dismissals Acts 1977 to 2015 (the “Acts”).

Facts: The Complainant was employed by the Respondent, a place of worship and a heritage site, in a variety of roles from 1st June 2013 to 18th December 2019. When his employment was terminated by the Respondent, he held the position of Verger. The Respondent submitted to the WRC that the Complainant was dismissed for gross misconduct and misconduct for attending work 45 minutes late, failing to report his lateness in line with the Respondent’s absence reporting procedure, and attending work under the influence of alcohol. He was already on a Final Written Warning at the time. The decision contains a detailed chronology of events, including prior incidents in respect of which the Respondent told the WRC it exercised “considerable forbearance”.

There was a further incident on 29th August 2019 where the Complainant arrived at work at approximately 10.20am, when he was due to attend work at 9.30am. The Respondent submitted that the Complainant failed to follow the absentee reporting procedure and his appearance was noted to be disheveled. His behaviour appeared unusual and two members of staff noticed a strong smell of alcohol. The Complainant argued he was not under the influence of alcohol, but that he had been out the night before. In accordance with the Respondent’s intoxication policy, he was sent home. The Complainant had annual leave booked in following this incident and upon his return he was suspended pending an investigation. The Respondent appointed an external third party to investigate the allegations and contended that the Complainant was given an opportunity to comment on witnesses’ interviews and pose questions. The investigation ultimately upheld the allegations. Following the investigation, the Complainant was invited to a disciplinary hearing on 16th December 2019. The sanction of dismissal was imposed following this hearing and this was communicated to the Complainant, who was afforded a right of appeal. The Complainant exercised this right and brought a trade union official to the appeal hearing.  However, at the hearing he was advised that his SIPTU union official could not act or make representations on his behalf. The SIPTU official requested that it be noted in the minutes that the Complainant was not afforded his rights to fair procedures. The Complainant’s dismissal was upheld as the Complainant had not provided “sufficient grounds nor new information or sufficient mitigating evidence which would allow the sanction to be overturned.”

The Respondent argued the decision to dismiss the Complainant was entirely fair in circumstances where the Complainant was on a Final Written Warning and there were two operative grounds for dismissal:

The Complainant argued that the procedures followed were unfair and that the sanction was disproportionate.

Decision: The Adjudicator, Patricia Owens, upheld the Complainant’s unfair dismissal complaint. In reaching this decision, she considered two main questions:

The Adjudicator observed that the Complainant was clearly on notice of the allegations against him, was given adequate notice of hearings, was provided with a right to representation and was given the opportunity to respond to the charges against him. The Complainant was also given an option to appeal. The Adjudicator found the investigation to be “flawless”. In relation to the disciplinary procedure, the Adjudicator found the procedure applied throughout was in line with S.I. 146 of 2000 (Code of Practice on Grievance and Disciplinary Procedures).

In relation to the appeals process, the Adjudicator noted that the Respondent acted in a timely manner, the Complainant was provided with sufficient notice of the hearing, and the appeals manager had not had any prior involvement in the matter. However, the Adjudicator found that it concerning that the trade union official who accompanied the Complainant to the appeal hearing was not allowed to speak on behalf of or make representations on behalf of the Complainant. The Adjudicator found that it was “grossly unfair” for the Respondent to “effectively ‘gag’ the representative and not allow them to provide any mitigation or information on behalf of an employee who was clearly vulnerable in the process.” She found that this was in breach of S.I. 146 of 2000.

The Adjudicator was of the view that the Respondent was entitled to consider the Complainant’s behaviour in attending work while under the “after effects” of alcohol consumption to be gross misconduct.

“It seems reasonable to me in general that an employer should be able to expect its employees to attend work on time and presenting in a professional manner, most particularly in circumstances where that employee is engaging with members of the public. Where the opposite occurs I believe a reasonable employer in similar circumstances might well consider the appropriate sanction to be dismissal.”

However, the Adjudicator noted there was “ample evidence” to suggest that the Complainant was suffering from a medical condition brought on by a traumatic experience. The Respondent was aware of all the circumstances of this traumatic event, but did not refer the Complainant to an Occupational Health service at any stage at the time of the incident on 29th August 2019 or during the disciplinary process. The Adjudicator was critical of the Respondent’s failure to have the Complainant medically assessed to determine if there was an underlying medical condition that would account for his behaviour. The Adjudicator also criticised the Respondent’s failure to take steps to have the Complainant’s fitness to engage in the disciplinary process assessed, even though there were a number of occasions during the process when the Complainant could not remember certain events and became confused.

The Adjudicator found that a reasonable employer would not have proceeded to dismissal without first obtaining medical advice.

For this reason, and because of the procedural deficiency referred to above regarding the appeals process, the Adjudicator found that the Complainant was unfairly dismissed.

The compensation award was significantly reduced by the Adjudicator as the Complainant did not present any evidence at the hearing of having mitigated his loss (approximately €54,000) by trying to secure alternative employment. The Adjudicator also found that the Complainant’s own behaviour contributed significantly to his own dismissal. The Complainant was awarded €18,000 in compensation.

Takeaway for Employers: This decision is notable as the Adjudicator acknowledged how well the investigation and disciplinary processes were carried out. In the case of the investigation, the Adjudicator even went as far as to describe it as “flawless”. While the Adjudicator identified a flaw in the appeals process, it appears that the failure to engage Occupational Heath was considered a key failing by the Adjudicator. Employers need to exercise caution in carrying out a disciplinary process when it is on notice of a possible underlying medical condition that may not only be a factor to take into account in considering an employee’s behaviour, but may also affect that employee’s fitness to engage in a disciplinary process. The importance of engaging with Occupational Health in appropriate cases was also highlighted in another WRC decision of the same date (ADJ-00033871) which also features in our newsletter.

Link - https://www.workplacerelations.ie/en/cases/2023/october/adj-00027984.html

Authors – Tara Kelly, Jenny Wakely and Anne O’Connell