Irish Distillers to pay €35,000 to ‘extremely hung over’ worker over unfair dismissal

Irish Distillers has been ordered to pay €35,000 for sacking a restaurant worker it accused of using “offensive language” when she turned up late after a night of “socialising”.

The company’s position was that worker Yvonne Foley was so “extremely hung over” when she reported to its Midleton site on September 30th, 2019, that she was “unable to start work for some time” – though the worker said she had only clocked in four minutes late.

Ms Foley’s solicitor said his client was using alcohol as a “crutch” for an anxiety disorder while struggling to return to work after sick leave and that her situation 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 was “largely improvising” when it moved to sack her in October 2019, as a final written warning – used as one of the bases for dismissal – was not actually in force at the time.

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Solicitor John Dunne, for the company, said Ms Foley used “extremely offensive language to describe her supervisor” on September 30th, 2019.

The exact remark alleged was neither put into evidence nor recorded in the WRC decision published today.

The firm’s food and beverage manager, Steve Guiney, told the WRC that by September 2019 he had met the complainant twice to discuss lates and absences, since she had been given a “final written warning” earlier that year.

Kieran McCarthy of McCarthy Teehan LLP, appearing for the complainant, said alcohol was a “crutch” for his client because of an anxiety disorder that saw her certified unfit for work the year before her sacking – and that she was struggling to return successfully to work.

“Every time I was late or missed a day, it was presumed it was because of a night out or drinking,” Ms Foley told the tribunal.

“Irish Distillers are a very fair employer,” said David Byrne, the company’s site manager in Midleton, who ultimately decided to sack her for “gross misconduct” over a “series of incidents” in 2019.

He said 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”.

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 personnel file in September 2019.

After examining the company’s disciplinary policy document, Ms de Burgh found that a nine-month notice only applied to a first warning – and that treating the first warning as a final one “fundamentally undermines” the company’s decision.

“It is hard to escape the conclusion that the respondent was largely improvising, instead of applying its own policies consistently and fairly,” she wrote.

Ruling the dismissal unfair, Ms de Burgh ordered Irish Distillers to pay Ms Foley €35,000 in redress – and commended her for voluntarily going to rehab after her sacking and giving up drink completely.