Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 3572/01

CLAIMANT: Eugene Kelly

RESPONDENT: Central Services Agency

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed. Accordingly, his claim is dismissed.

Appearances:

The claimant was represented by Mr Brian Sullivan.

The respondent was represented by Mr F O'Reilly, Barrister-at-Law, instructed by Ms McClean, Solicitor, Legal Services Directorate, Central Services Agency.

Issues before the tribunal

1. The claimant claimed that his dismissal by the respondent was unfair. In particular, he claimed that there had been deficiencies in the respondent's disciplinary procedures and the manner in which these had been implemented so as to render the dismissal unfair.

The respondent admitted that the claimant had been dismissed but claimed that this had been for gross misconduct and that this had been fair in all the circumstances of the case.

2. This hearing lasted for four days. The tribunal heard evidence from the claimant and the following witnesses on behalf of the respondent:

Mr Terry Hayes, Purchasing Manager, Central Services Agency (hereinafter CSA)

Mr Desmond Graham, Assistant Director of Finance, CSA

Miss Eileen Kelly, Senior Buyer, CSA, the claimant's line manager

Mrs Anne Martin, Purchasing Manager, CSA, Miss Kelly's line manager,

Dr Anthony Stevens, Consultant in Occupational Medicine, Royal Victoria Hospital

Mr Brian Kelly, Director of Purchasing Information and Electrical Commerce, CSA

Ms Christine McAllister, Deputy Director of Human Resources, CSA.

Mr Brian McIvor, Director of Capital Projects, CSA

Ms Paula Shiels, Director of Family Practitioner Services, CSA

Mr Stephen Hodkinson, Chief Executive, CSA

In addition to these witnesses, the tribunal had two lever arch files and one ring file of documentation from the respondent and another bundle of documents from the claimant, totalling over one thousand pages.

Generally the tribunal preferred the evidence of the respondent because it was supported to a great extent by documentary evidence. This is not to say that the claimant's evidence was not believable; rather that, by his own admission, his recollection and interpretation of what took place were affected by his alcoholism.

3. After considering all the evidence, the tribunal found the following facts:

(a) The claimant began employment with the respondent in about 1988. He enjoyed his work very much and provided a high standard performance of his duties. He was also well liked and respected and was promoted to the position of Grade 4 Buyer in about February 1998 at the respondent's Regional Supply Centre at Boucher Crescent, Belfast.

(b) Towards the end of 1998, the claimant suffered some sort of breakdown and his work suffered as a result. Complaints were made to Miss Kelly, his line manager, from managers, other staff and customers. Initially these related to the claimant leaving his desk and workplace for long periods, leaving his work to be covered by others or having done it unsatisfactorily.

(c) Miss Kelly spoke to the claimant several times about his performance at this time and occasionally this led to a short improvement. At his request, the claimant was referred to the Occupational Health Service (OHS) at the Royal Victoria Hospital in February 1999. They recommended that the claimant be allowed to leave the respondent's premises at break-time and this was accommodated.

(d) At about this time Miss Kelly began to notice a deterioration in the claimant's appearance and demeanour. She also noted a strong smell of what she believed to be alcohol.

(e) On 11 March 1999, Miss Kelly and Mrs Martin, her line manager, were told that the claimant had been asleep at his desk before leaving the office. No one knew where he was. A search of the premises found him asleep in a store room. He was sent home. His managers were also concerned that the claimant had driven to work in what they believed was an intoxicated state.

(f) The claimant subsequently informed his managers that he was physically and emotionally exhausted because in addition to his work with them he was studying part-time at University of Ulster and driving a taxi at weekends. He was again referred to OHS and offered a confidential stress counselling service. He was also told that his performance was being monitored and that any reoccurrence or lack of improvement would lead to disciplinary action.

(g) There was an improvement for a time but on 16 July 1999, Miss Kelly spoke to the claimant again about his performance. He admitted to her that he was an alcoholic and that he had not informed OHS of this at any of his previous appointments.

(h) The claimant subsequently attended OHS who advised the respondent that the claimant had begun to receive appropriate treatment for his condition and that, while there was a risk of relapse, full recovery was possible.

(i) The claimant's performance was reviewed by Miss Kelly on 19 August 1999. His improvement was acknowledged. He was assured of CSA's continued support and assistance but warned that reoccurrence would result in disciplinary procedures.

(j) At about this time, the Human Resources Department wrote to Dr Stevens at OHS to ask for general advice on the management of an employee with alcoholism. His response, dated 16 September 1999, was that the individual should be regularly reviewed by OHS, afforded an opportunity to receive appropriate treatment following which, continuing poor performance should be managed in a disciplinary way irrespective of whether or not the poor performance was related to the alcohol problem.

(k) The tribunal accepted that the advice given by Dr Stevens represented best practice regarding the proper management regime for an employee with this condition and his advice was following by the respondent in relation to the claimant.

(l) There were no further incidents until May and July 2000 when the claimant was again sent home. He was also having marital problems and was suffering from high blood pressure and angina. On 17 July 2000, the claimant's GP certified that he was unfit for work due to "an anxiety state". He did not return to work until 2 January 2001 but he attended OHS during this time and was visited at his home.

(m) On 2 January 2001, Miss Kelly and Mrs Martin conducted a Return to Work Interview with the claimant and the content of the meeting was then confirmed to him in writing. This letter referred to his health problems and outlined the support that was available to him in that regard. In addition, the claimant was instructed that he was not to appear in work unless he was fit to do so. The letter also made it quite clear that any departure from the standard of work expected from a Grade 4 "would lead to the disciplinary procedure being enforced."

(n) On 11 January 2001, the claimant appeared disorientated and smelled strongly of alcohol. He said he had not taken alcohol for several months. He went home early that day and the next. His work was below standard. He was asked to attend a meeting with Mrs Martin and Miss Kelly to review his behaviour and the state in which he had presented himself to work on 11 January 2001. The claimant did not appear the day after receiving that letter. The following day, 19 January 2001, a security guard and a colleague of the claimant saw him sitting in his car drinking from a bottle. When he checked the car later, the security guard showed the colleague a vodka bottle. They reported the incident to Mr Terry Hayes who, with, Mr Desmond Graham, spoke to the claimant. They decided to send the claimant home. When he attempted to drive, they asked for his car keys which were handed over.

(o) The meeting with his managers took place on 22 January 2001. The claimant had asked Mr J C Oakes, Shop-steward, to accompany him. Mr Butler, the union branch secretary, also attended. The claimant said that his behaviour was purely a side effect of the drugs he was taking for his various medial conditions. Mrs Martin wrote to the claimant to confirm the content of the meeting. He was reminded that at his Return to Work Interview on 2 January 2001, he had been instructed that he was not to attend work unless fit to do so. In this letter, the claimant was issued with an oral warning and told that any further reoccurrence "would lead to the formal disciplinary procedure being initiated which could result in dismissal". This part of the letter was highlighted.

(p) Mrs Martin also referred him to the incident of 19 January 2001 and informed the claimant that the matter was being investigated in order to see if the formal disciplinary procedure would be invoked.

(q) In early April, Miss Kelly had to speak to the claimant about his work and to bring him home on one occasion. In one conversation she had with the claimant at that time, he described himself as a hardened alcoholic and admitted that he had not been attending Shaftsbury Square Hospital for some time. Another meeting was arranged. The claimant was informed that Mr Brian Kelly, his departmental head, would be attending and advised him to invite his trade union representative.

(r) This meeting took place on 12 April 2001. The claimant chose not to be represented. The subsequent letter from Mr Brian Kelly to confirm the content of the meeting set out the management regime that had been agreed. This began by stating again that the claimant was to present himself in a fit state for work. If his managers had reason to suspect he was unfit, the claimant would be required to undergo blood tests which, if positive, would result in his suspension from work and the establishment of a disciplinary panel.

This warning was reinforced by Dr Stevens at the appointment he had with the claimant on 27 April 2001.

(s) On Wednesday 9 May 2001, the claimant's speech was disjointed, he appeared disorientated and he smelled strongly of alcohol. At tea break, the security guard reported that the claimant had driven away from the premises. On his return, the claimant denied that he had been drinking but agreed to attend OHS to take the blood test to prove this.

Dr Stevens was not satisfied that the claimant had given informed consent to the blood test and refused to administer one. The claimant still said that he had not been drinking that morning. He told Dr Stevens that he had had some wine on Sunday night and a bottle of vodka on Monday but nothing since then. He gave a different account to Mrs Martin and Mr Kelly who accompanied him. Dr Stevens agreed with the assessment the managers had made and said that the blood test was not necessary in the circumstances. The tribunal find that the claimant was not being truthful on this occasion. In his evidence to the tribunal, the claimant admitted that he had been unfit for work because he was under the influence of alcohol on that day.

Mr Kelly left the claimant home and wrote to him that same day to inform him that he was suspended pending the convening of a disciplinary hearing.

(t) The Director of Human Resources wrote and informed the claimant that he was required to attend a disciplinary hearing. The allegation was stated as follows:

"On 9 May 2001, despite clear instructions to the contrary as set out in the letter of 12 April 2001, you attended work while under the influence of alcohol. This is considered by the Agency to be a matter of gross misconduct and grounds for disciplinary action as set out on page 6.24 of the disciplinary procedures".

(u) Between the suspension and the disciplinary hearing, the claimant's GP certified him as unfit for work as he was suffering from depression. The claimant was seen by Dr Stevens at OHS at the request of the respondent on 2 July 2001, the day before the original date of the disciplinary hearing. Dr Steven's advice was that the claimant was "currently unlikely to be able to provide regular and effective service at work but…should be capable of participating in a disciplinary hearing".

This planned hearing was postponed at the request of the claimant.

(v) The hearing eventually took place on 26 July 2001. The claimant had requested that he be represented by Mr Sullivan but was advised that this was not provided for in the procedures. He chose to attend alone. The decision of the disciplinary panel was to dismiss the claimant following their decision that the charge had been proved.

(w) The claimant's letter of appeal stated that, while the meeting had been procedurally correct, the panel had failed to take his medical condition on the day into consideration. They had also concluded that he had taken alcohol on 9 May 2001 when there was no evidence to support that claim and his prescribed medication may have given that impression. In addition the panel had not given consideration to his previous excellent work record prior to his 'medical breakdown'.

The appeal was heard by a different panel on 12 October 2001. The claimant was represented at this hearing by Mr Sullivan. The appeal panel confirmed the decision to dismiss.

Submissions of the parties

4. Counsel for the respondent, Mr O'Reilly, submitted that the dismissal of the claimant was fair under Article 130 of The Employment Rights (Northern Ireland) Order 1996 as the reason fell within Article 103(2)(a) and (b) which relate respectively to capability and conduct.

For the claimant, Mr Sullivan submitted that the procedures by which the dismissal had been effected were defective to such an extent that the dismissal was unfair and void.

Tribunal's conclusions

5. The tribunal first considered whether the respondent had proved the reason for the dismissal and found on the basis of the facts set out above that the principal reason for the dismissal was the claimant's lack of capability to perform work of the kind he was employed to do. In doing so, the tribunal took into account the definition of capability in Article 130 (3)(a). As the above findings of fact demonstrate, the respondent had informed the claimant on several occasions of those respects in which he had failed to perform to the standard required of an officer at his grade, had warned him of the consequences of continued failures in that respect and had given him assistance, support and many opportunities to improve. They had also given him reasonable work instructions regarding his demeanour and conduct in work. His failure in these respects were related to his incapability due to his alcoholism.

[James v Waltham Holy Cross UDC [1973] ICR 398 and A J Dunning & Sons (Shop fitters) Limited –v- Jacomb [1973] ICR 448].

6. The tribunal then considered the procedural fairness of the dismissal. Individually and collectively, the tribunal had varying degrees of concern with elements of the procedures. These included the continued use of informal processes rather than the use of warnings under the formal procedure, proceeding with hearings when the claimant was not represented, holding the disciplinary hearing while the claimant was certified as depressed.
7. The tribunal was mindful of the importance of looking to see if the employer had 'adopted a reasonable procedure in the course of taking their decision to dismiss'

(Polkey v- A E Dayton Services Limited [1988] IRLR 503).

While the tribunal members might each have done certain things differently, we were unanimous in our finding that the procedures used were fair and were careful not to look to see what we would have done in such a situation (Scott –v- Ulsterbus Limited [1985] 9 NIB).

8. The claimant was given advice and support, was referred to the services of expert medical practitioners and facilitated with regard to their advice and recommendations. He was offered counselling, and was warned of the incremental threat to his employment that continued breaches of reasonable work instructions constituted. He was given the opportunity to have representation but chose to refuse it. By his own admission, the claimant would have agreed to any proposed regime of management to get out of the room but his alcoholism meant that he did not want to acknowledge he had a problem so he would not, or could not, accept there was any need for him to change his behaviour. The respondent did not know that the claimant was failing to continue with his therapeutic treatment as directed by OHS. In all these, circumstances, there was no unfairness in the respondent's procedures or their implementation.
9. With regard to whether dismissal was warranted, the tribunal considered that the actions of the claimant on 9 May 2001 were sufficiently serious to merit the charge of gross misconduct. Put simply, the respondent had by then expended sufficient time, effort and resources in their efforts to remedy the situation and were justified in deciding to bring the situation to a conclusion.
10. The tribunal then considered whether the dismissal was fair. In this exercise, the tribunal were assisted greatly by the examination of the leading authorities by Carswell LJ (as he then was) in the Northern Ireland Court of Appeal case of David Henry Hargy –v- Sherwood Medical Industries Limited 1996 NIJB 5.

"The tribunal was not to ask itself the question whether it thought that it would have been a reasonable course to dismiss the respondent. It has rather to ask whether, viewing the employer's action in the circumstances prevailing at the time of the dismissal, his conduct fell within a band of reasonable responses to the situation. In other words, it has to ask itself whether an employer could be said to have acted reasonably in dismissing the employee."

We were satisfied that, as required by Article 130(4) and confirmed by those authorities, in all the circumstances of this case, the respondent's action in dismissing the claimant was warranted by his incapacity to perform the duties of his post and so fell within a band of reasonable responses to that situation.

11. In his summation to the tribunal, Mr O'Reilly acknowledged that no one hearing the testimony of the claimant concerning all that had happened to him during the last two years of his employment with the respondent and immediately afterwards could fail to appreciate the tragedy of his situation. It was also quite clear to the tribunal that all the respondent's managers acted professionally reasons and out of responsibility to all their staff and customers. Like them, the tribunal were impressed with the claimant's subsequent efforts to address his problems and his educational achievements.

Chairman:

Date and place of hearing: 21-24 June 2005, Belfast.

Date decision recorded in register and issued to parties: