Irish Distillers has been ordered to pay €35,000 for firing a restaurant worker who was late 91 times and was accused of using "offensive language" about a supervisor when he pulled her up for clocking in late after a night of "socialising".
The firm maintained that Yvonne Foley was already on a final written warning over a pattern of "unacceptable" behaviour.
Its top executive in Cork stated he was faced with an employee who had been late on 91 out of 118 occasions at the time he decided to dismiss her.
But Ms Foley's solicitor said his client was using alcohol as a "crutch" for an anxiety disorder while struggling to return to work after a period of sick leave.
They said that the matter should have been dealt by the firm’s "AWOL" corporate HR department, not local management in Cork.
Upholding a complaint under the Unfair Dismissals Act 1977 by Ms Foley, the Workplace Relations Commission found that Irish Distillers had departed from its own disciplinary procedure and was "largely improvising" when it moved to dismiss her.
The WRC found that a final written warning, used as one of the bases for dismissal, was not actually in force at the time.
Irish Distillers, a subsidiary of the French-headquartered spirits multinational Pernod Ricard, produces the world’s top-selling Irish whiskey, Jameson, as well as Huzzar vodka and Cork Dry Gin for the domestic market from its distillery in Midleton, Co Cork.
Ms Foley said she had only been four minutes late to clock in on 30 September 2019, when the Irish Distillers solicitor, John Dunne of McInnes Dunne Murphy, said she had been so "extremely hungover" that she was "unable to start work for some time".
He said the complainant used "extremely offensive language to describe her supervisor" on this date, which was provided to the tribunal in a written submission but not put into evidence.
The firm's food and beverage manager, Steve Guiney, said Ms Foley was on a "final written warning" and that the same issues had "started to re-surface" prior to the incident that triggered the disciplinary process.
Kieran McCarthy of McCarthy Teehan LLP, appearing for Ms Foley, said alcohol had become a "crutch" for his client because of a longstanding anxiety disorder that saw her certified unfit for work the year before her dismissal.
Mr McCarthy said Ms Foley went back to work but continued to struggle, with workplace stress and her "underlying mental health difficulties" affecting her performance.
Counsel said the written warning of March 2019 noted by the tribunal was the result of Ms Foley "uncharacteristically slipping" and argued the same about the September incident.
"Every time I was late or missed a day, it was presumed it was because of a night out or drinking," Ms Foley said.
"Mr Guiney was trying to do you a favour, he was trying to keep you on the straight and narrow," said the company’s solicitor, John Dunne of McInnes Dunne, as he cross-examined the complainant.
"Yes, he was looking out for me and telling me," Ms Foley said, but added that she felt she was being "picked on" as other people were not being treated the same way.
Mr Dunne put more dates to her, saying she had been late on one occasion in May 2019 the night after a staff party; that she was hungover at work on a date in June that year and that she missed work entirely on a date in July.
She said she had "eight to ten years of never being in trouble, had never got a warning, so I actually didn’t take the seriousness of it".
The Irish Distillers site manager in Midleton, David Byrne, said the complainant told him she "did not have a problem with alcohol" when they spoke as he was drawing up his decision following a disciplinary hearing.
"Irish Distillers are a very fair employer," Mr Byrne said, but remarked that Ms Foley had been "late 91 times out of 118" and had been "given every opportunity to turn up on time, to look after her job, to be in a fit state".
Mr Byrne said his decision was that Ms Foley should be "dismissed summarily for gross misconduct" over the "series of incidents" that year.
When it was put to him by the complainant’s solicitor, Kieran McCarthy, that she was "innocent", Mr Byrne replied: "Absolutely not."
WRC hears HR department was 'AWOL'
Mr McCarthy said in a closing submission that Irish Distillers is a large firm with a HR department that ought to have taken charge of dealing with his client, but was "AWOL", leaving it to Mr Guiney and Mr Byrne to deal with an "ill employee" with a "psychiatric issue".
In her decision, WRC adjudicator Lefre de Burgh wrote that Irish Distillers had relied on what it termed a "final written warning" issued in March 2019 for nine months that was still "live" on Ms Foley’s file at the time of the last incident, both before the tribunal and in its internal processes.
But Ms de Burgh wrote that the company handbook set out just three disciplinary sanctions before dismissal: a verbal warning for six months, a written warning for nine months, and a final written warning for 12 months.
"There is no final written warning nine months in length in the employer’s handbook or policies. No such sanction exists," Ms de Burgh wrote, adding that the firm’s action in treating the written warning as a final written warning "fundamentally undermines" its decision to dismiss Ms Foley, and to uphold the decision on appeal.
"It is hard to escape the conclusion that the respondent was largely improvising, instead of applying its own policies consistently and fairly," she wrote, and added that the distillery’s management of the situation "does not stand up to scrutiny".
"At each stage, up to and including appeal, the complainant was treated as though she was on a live final written warning, when in fact that was not the case due to the misapplication of the respondent’s own procedures," Ms de Burgh added.
Ruling the dismissal unfair, Ms de Burgh ordered Irish Distillers to pay Ms Foley €35,000 in redress.
"It is to the complainant’s very great credit that subsequent to her job loss, she voluntarily attended an alcohol rehabilitation programme and now does not drink at all, and I wish to commend her in that regard," Ms de Burgh wrote.
