Dismissal justified where employee fails to attend counselling

1 Apr 2015
Author: DTI Lawyers

This summer, the Employment Relations Authority confirmed an employer’s ability to dismiss an employee for failure to attend and complete an alcohol counselling course. The case demonstrates that where reasonable steps are taken by the employer to provide an opportunity to retain employment, an employer will be justified in pursuing inevitable consequences where conditions on that opportunity are not met.

Mr Callard was a bus driver for Wellington City Transport Ltd. His employer raised concerns about his poor attendance, citing an absence of 31 days over a 12 month period. It was agreed that Mr Callard would be placed on an “Attendance Plan”. Soon after, he was absent and failed to notify his employer; both requirements of the plan. On his return to work, he met with his supervisor who noticed the smell of alcohol on his breath. Mr Callard consented to a drug and alcohol test which was returned positive.

At a disciplinary meeting, the employer made Mr Callard fully aware that he would be receiving a final written warning, the need for improvement in his attendance at work, and that his continued employment depended on him attending alcohol rehabilitation counselling.

After attending two sessions, Mr Callard cancelled the next two at short notice. The counselling service, who were authorised to discuss Mr Callard’s treatment with his employer, informed the employer that Mr Callard had referred to last-minute shift changes at his workplace as the reason for rescheduling his appointments.

There were no such last-minute shift changes. Mr Callard’s supervisor had actually taken steps to ensure that he would be able to attend counselling. Despite this, the company met with Mr Callard again. It reiterated that he was required to schedule counselling appointments, and that once scheduled, he could tell his supervisor so that the roster could be worked around this.

Within months, the counselling service advised the employer that Mr Callard had attended only four of seven scheduled appointments and he was being discharged from the programme.

The employer put Mr Callard on notice that this amounted to potentially serious misconduct, and the matter would be investigated. During the disciplinary process, Mr Callard admitted missing appointments and failing to inform his employer.

Following the meeting, the employer concluded that in the context of the final written warning, it could no longer have trust and confidence in its employee, and dismissal was the only appropriate action. Mr Callard challenged that decision.

The Authority considered the context including the agreed conditions of Mr Callard’s continued employment and the nature of the business justifying importance being given to reliability and safety. The employer’s conclusion that it could no longer have trust and confidence in its employee was fair and reasonable in all the circumstances.

This case is a valuable lesson that where employers work through a fair and reasonable process to put employees on notice of their concerns, provide an opportunity for feedback and then make decisions taking into account all the circumstances, dismissal will be justifiable. By not taking rash and ill-considered action, the employer was entirely successful in defending its right to end the employment relationship.

Article first published by The Waikato Times, 1 April 2015: http://www.stuff.co.nz/waikato-times/business/67560254/Dismissal-justified-where-employee-fails-to-attend-counselling