ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002385
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00003207-001 | 15/03/2016 |
Date of Adjudication Hearing: 30/08/2016
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
The Complainant alleged he had been unfairly dismissed by his employer. The Complainant was accused of falsifying a test report and allegedly breaching the trust and confidence of the Company. The falsification of this report has never been denied by him however the Senior Management team were aware of this issue prior to the report being finalised and it was done so with their full knowledge. There is a suspicion that this disciplinary action is not genuine and in fact is a cover to dismiss the Complainant from his employment rather than offering the employee his entitlement under redundancy. This suspicion is due to the large voluntary redundancy that occurred in August 2015 and also the fact that management knew and were informed of the report issue. His employer actioned a disciplinary process whereby the rules of natural justice were not adhered to during this disciplinary throughout from the outset of the investigation. The Complainant was suspended with pay unnecessarily from 8th October 2015 to the date of termination, 5th February 2016. This suspension was punitive, his mailbox was frozen, no complaints had been made and the recurrence was unlikely. The day following his suspension his role was changed in the Organisation Chart with no prior agreement. This length of time implied his guilt within the workplace to his work colleagues causing stress and embarrassment. The Complainant was very public and damaging. The Complainant was not afforded the full allegation against him and the Complainant was not provided with a copy of the Company disciplinary procedure from the outset. The Complainant made a Data Protection request and received a copy of the disciplinary procedure in December. The Complainant was not given a full copy of the test report that was under investigation and the Complainant had to rely on memory despite hundreds of test reports completed per year with no access to emails to follow up on his memory. There was concern raised by him regarding the right to a separation of process but this was not taken into account by the Company. On the 27th November 2015 prior to any investigation report forthcoming the Solicitors correspondence on behalf of his employer started to note findings of the investigation in regards to witness statements. The Complainant had not received a copy of any report at this stage or a copy of any witness statements. The invitation letter to the disciplinary meeting was phrased in such a manner that it stated predetermined findings and implied his guilt. The Complainant attended an investigation meeting on the 4th November 2015. No minutes were forthcoming 6 days after the investigation on the 4th November 2015. On the 13th November 2015 minutes were forwarded. His representative, highlighted that the minutes are not accurate. The minutes in the investigation report are the Company typed minutes which were not agreed to nor in line with the hand written minutes taken by his representative. When asked to provide a copy of the hand written minutes due to the discrepancies between the two sets of notes the Company disregarded this request. This highlights the inaccuracies of the investigation and the predetermined outcome in advance of the investigation. The investigation was not fair and transparent and was conducted in a bullish manner. On 22nd January 2016 The Complainant was forwarded a copy of the Investigation Report. Nothing new was established in the Investigation Report that was not established at the beginning of the suspension on 8th October 2015. The Complainant was not provided with a copy of witness statements which the Company relied upon in making their decision. There are no minutes of statements from witnesses in the Report. In addition, there was no opportunity for him to cross examine or respond to the witness statements. It is stated that there was always a predetermined outcome to the investigation. This resulted in a flawed investigation and this investigation is what the disciplinary is now based upon therefore it in turn is also flawed. The sanction issued to him is not proportionate to the alleged crime and has impacted on his reputation and health. The Complainant received a letter of dismissal on the 5th February 2016. The Complainant appealed this decision and an appeal meeting was held on the 24th February 2016. The Complainant received the appeal of this decision on the 29th February 2016 upholding the decision. The Complainant had no previous warnings on his file. The Complainant had been employed since June 2000 with no disciplinary sanction of any kind during that time. In addition, The Complainant had no outstanding performance issues during his long service. Any performance review that was conducted over the course of employment was only positive with positive performance comments given. The Complainant wants to clear his good name and reputation that has been dirtied by this long drawn out suspension, investigation and unfair disciplinary. |
Respondent’s Submission and Presentation:
The Respondent made a verbal submission supported by a substantial set of evidence and technical documents. The Respondent stated the part was to be used in cars and the false tests put their business and people at risk if it had gone undetected. They took the Hearing through a detailed explanation of the test procedure and how it established that the test was never completed and that the signature of another employee was attested to having completed the test. They felt that the Complainant, who was in a position of authority, had deliberately falsified a report which had potential serious customer and employment consequences for the Plant staff. They said he had damaged the integrity of the product with a falsified report. That he had signed another employees name as having completed the report which following investigation the tests were never carried out. The issue was fully investigated and the Complainant had the right of representation throughout the process and he took up this option. The falsification of the report was deliberate, dangerous to people’s safety and to future business which the plant was very reliant on. During the investigation the Complainant had agreed that the test was not completed and he had falsified the result and who completed the report. The dismissal had nothing to do with avoiding a redundancy payment. The Complainant was given a fair and extensive procedure during the investigation and subsequent disciplinary procedures. He had the right of appeal which he exercised and which did not succeed. The Complainant was able to get a new job within four weeks of leaving the Respondent. The respondent relied upon a series of technical documents and reports which were presented during the Hearing.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
At the Hearing the Complainant admitted that he had put the name of another employee on the test report without his knowledge and knowing that the test data had not been complied properly or correctly. He also advised that the six product tests were not completed as per the test report and that he had formulated the test data without completing the test reports.
The Complainant made much of the circumstances in the Department and Company and that they contributed to the lack of time to complete the work properly. While they may have contributed to his view of the merits of his actions, this does not justify his actions. He also provided a view that he was not treated fairly in the process but I note he had a either a professional HR Company or a Barrister present at all meetings thus he had full access to professional advice/Counsel throughout the disciplinary meeting. There was an exhaustive investigation, disciplinary and appeal process and while not perfect, I see nothing in the imperfections that seriously impacted both on the facts, the outcome or the Complainants opportunity to defend his position.
I find overall that the Complainant falsified a critical test report and also attributed these test findings to another employee. This put potential business and the safety of people at risk if the product was launched based on these test findings. I believe the bond of trust irrevocably broke down between the Complainant and the Respondent as a result of his actions. I believe the Complainants points about his two grievances raised to be a non issue in his dismissal. The Complainant may have had what he believed to be reasonable grounds and support for falsifying the test report, however these were misguided and unfounded. Overall I find that there were substantial grounds justifying the dismissal of the Complainants under section 6.1 of the Act and that dismissal was fair and his claim for unfair dismissal fails.
Dated: 24th October 2016