ADJ-00003283

Complainant

Respondent

Parties

A Quality Control Analyst

A Pharmaceutical Company

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-00004862-001

26/05/2016

Complaint    seeking adjudication by the Workplace Relations Commission under section 6    of the Payment of Wages Act, 1991

CA-00004862-002

26/05/2016

The Complainant claims that he was unfairly   dismissed by the Respondent from his position as a Quality Control Analyst within   the meaning of Section 6 of the Unfair Dismissals Acts. The Respondent   disputes the claim of unfair dismissal and claims that the Complainant’s   employment was terminated by reason of gross misconduct.

The Respondent is a leading generic pharmaceutical company   which specialises in the development, production and marketing of generic and   proprietary branded pharmaceuticals as well as active pharmaceutical   ingredients. The Complainant commenced   employment with the Respondent on 17^th January, 2005 and was   employed on a contract of indefinite duration from 1^st January,   2007.

At the time of the incident which gave rise to his   dismissal, the Complainant held the role of Quality Control Analyst. In this   role, the Complainant was responsible for sampling and testing of components   before they are put into the production process. The work is overseen by the Quality Control   Facilitator. The Respondent operates   in a business which, owing to the nature of the work involved, is highly   regulated. Compliance with good manufacturing practices (GMP) and regulatory requirements   is paramount in circumstances where the company produces products that are   for human consumption, improve health and save lives. The company operates a zero-tolerance   policy with regard to non-compliance with GMP and this is set out explicitly   in the Respondent’s Disciplinary Procedures in which the list of “Gross   Misconduct” offences includes theft, fraud or interference with Company or   other employees’ property without permission and wilful disregard for   Standard Operating Practice (SOP) or Regulatory requirements. During 2014/15,   the Complainant attended a number of training sessions emphasising the   paramount importance of data integrity and which dealt with the following   matters; what is meant by data integrity;   the expectations of the regulators and the very serious consequences   for breaching data integrity.

The present case relates to a breach of GMP which took   place on 12^th February, 2016 and which came to light on 14^th   March, 2016 when an analyst in the Quality Control laboratory checking a   Goods Receipt Slip noticed that the initials on the document had been   falsified. It subsequently emerged   that the Goods Receipt Slip had been backdated and initialled and in light of   the inconsistencies that emerged it was decided to investigate the matter to   establish if it was a breach of the GMP procedure and whether the signature   on the Goods Receipt Slip had been forged and backdated and sent over to the   laboratory on 12^th February, 2016 by the Complainant.

This matter was brought to the attention of the   Complainant by the Quality Control Facilitator on 15^th March, 2016   and he admitted that he had inserted the initials of the Warehouse Operator on   the document. When questioned why he had used another person’s signature, the   Complainant stated that the Warehouse Operator, who had issued the Goods   Receipt Slip, was not present at the material time and neither was the   Warehouse Facilitator who had the authorisation to reprint the document. The   Complainant indicated that he took it upon himself to sign the “Issued By”   section of the Goods Receipt Slip using the Warehouse Operator’s   initials. The Quality Control   Facilitator informed the Complainant that the matter would be referred to   Human Resources.

On the 16^th March, 2016, an investigation   meeting took place and the facts of the case as known were put to the   Complainant, who was accompanied by two Trade Union shop stewards, and he was   afforded the opportunity to further explain his side of the matter. The Complainant again admitted at this   meeting that he had forged the Warehouse Operator’s signature but stated that   his intention had been to “pp” the “Issued by” section for him but had not subsequently   done so. The reference to “pp” had not   been mentioned previously in the Complainant’s conversations with the Quality   Control Facilitator on 15^th March, 2016. The Complainant was informed at the meeting   that he would be suspended with pay pending an investigation and would be   called back for the formal disciplinary meeting once a full and thorough   investigation had taken place.

An investigation was subsequently carried out by the   Respondent and a disciplinary hearing took place on 23^rd March,   2016. The Complainant was again   accompanied by two Trade Union shop stewards at this meeting. During the meeting, the facts of the case   were again outlined to the Complainant and the results of the investigation   were shared.   When questioned about   the backdating of the Goods Receipt Slip, the Complainant was unable to   provide any clear explanation or reason for doing this. It was outlined to   the Complainant that it was not the practice within the company for an   employee to “pp” a document relating to an area in which the employee does   not work, nor for an aspect of the quality control process in which the   employee is not trained. The Trade Union   shop stewards, on behalf of the Complainant, stated that the action was of no   benefit to him, he had admitted to it once asked about it and had not tried   to cover it up. Notwithstanding this, it was made clear to the Complainant at   the meeting that he had knowingly signed the Goods Receipt Slip when he was   not trained in the procedure and was not in a position to know whether the   details on the document were correct.

After careful consideration of the evidence and taking the   Complainant’s admissions and those of his representatives into account, it   was recommended to the Director of Human Resources that the Complainant’s   conduct merited dismissal. The basis of the recommendation was outlined to   the Director of HR who made the decision to dismiss (as per the Company   Disciplinary Procedure where the decision to dismiss an employee may only be   taken by the Director of HR). On 24^th   March, 2016, the Director of HR and the Senior Director Site Quality met the   Complainant and his representatives to advise of the decision to   dismiss. This was also followed up in   writing and the Complainant was informed that he could appeal the decision to   the General Manager within fourteen days.

The Complainant subsequently appealed the dismissal and   the appeal hearing took place on 3^rd May, 2016. The appeal hearing   was attended by the Complainant, the two Trade Union shop stewards, an   employer HR representative and the Complainant. During the meeting, the General Manager   listened to the case made by the Complainant and by his Trade Union   representatives and clarified anything which was not immediately clear to   him. By letter dated 13^th May, 2016, the General Manager wrote to   the Complainant setting out his decision to uphold the findings of the   original disciplinary investigation and that dismissal was the appropriate   sanction in this case. The General Manager also responded to each of the   issues raised by the Complainant at the appeal hearing. The General Manager was satisfied that the   appropriate disciplinary procedure was followed.

In relation to the Complainant’s assertion that the acts   carried out did not constitute fraud as it did not result in “personal profit   or gain”, that the intention was “nothing other than moving the work forward”   and that the incident did not constitute gross misconduct, the General   Manager accepted that while there was no personal profit in terms of   financial gain to the Complainant, the industry in which the Company operates   is different to other industries in that the Company produces products that   improve health and saves lives. As a   result of the highly regulated nature of the industry a much higher standard   of behaviour is expected and indeed required of its employees. The Respondent   submits that fraud, therefore, must be defined by the nature of the business.  

The Respondent submits that following audits by the   relevant regulatory authorities in 2015 there have been a number of similar   instances which resulted in terminations of employment within the Company.   The Respondent adduced evidence in relation to two other separate instances involving   employees where the decision was made to dismiss in circumstances where it   had been established following investigation and disciplinary hearings that   they had committed breaches of data integrity and falsification of records.

The Respondent submits that the Complainant’s breach of   GMP and data integrity obligations led to a total breakdown in trust and   confidence between the employer and employee.   The Company could not compromise the safety of its products or risk   the effective closure of its plant or other sanctions by regulatory   authorities, and the consequent possible loss of jobs, by allowing the   Complainant to continue in employment. It is for this reason that the   Complainant’s employment was terminated and his conduct amounted to a   fundamental breach of his duties and obligations under his contract of   employment as well as multiple breaches of the Company’s GMP/data integrity   obligations. The Respondent submits that the company at all times acted   reasonably and proportionately and in accordance with its own Disciplinary   Procedure and the principles of natural justice. The Complainant was made aware of all of the   evidence that ultimately resulted in his dismissal and furthermore, he was   afforded the right to representation and the opportunity to give a full   response during the course of the investigation, during the disciplinary   process and the appeal, an in fact availed of those rights.

The Respondent submits that the Complainant was found to   have acted in a manner constituting gross misconduct and this in turn raised   very serious concerns about his employment with the Company. The Respondent submits that it was entirely   reasonable for the Company, in consideration of the findings made in relation   to the Complainant’s behaviour at the investigation stage, and his admissions   at the investigation and disciplinary stages, to terminate his employment.

The Respondent submits that Section 8 of the Minimum   Notice and Terms of Employment Act 1973 clearly preserves the right of any   employer to terminate a contract of employment without notice because of the   misconduct of an employee. In the circumstances where the employment of the   Complainant was terminated because the integrity of the GMP/data integrity   procedures was compromised, it is submitted that it was entirely reasonable   for the Respondent to terminate his employment without notice or payment in   lieu of such notice.

The Complainant was employed by the Respondent as a   Quality Control Analyst from 16^th January, 2005 until 24^th   March, 2016 when he was summarily dismissed from his employment. The   Complainant submits that he was an exemplary employee in every sense, was   competent, hardworking, flexible, had exemplary time keeping, got on well   with his colleagues and had not previously been subjected to any disciplinary   matters during his period of employment prior to the events which resulted in   his dismissal.

The Complainant submits that he was called into the   Quality Control Facilitator’s Office on 15^th March, 2016 where he   was shown a Goods Receipt Slip and asked if he had initialled this document   using the initials of the Warehouse Operator.   The Complainant informed the Quality Control Facilitator that he had initialled   the document and explained that the reason for doing so was because he was   under a lot of pressure at work and there was nobody else around to sign it.   The Complainant was informed that this was a serious matter and a short time   later he was approached by Ms. B from Human Resources and requested to attend   the HR Office to discuss the matter.   The Complainant indicated that he wished to have a Trade Union Shop   Steward in attendance so the meeting was deferred until the following morning   to facilitate this request.

The Complainant attended a meeting with Ms. B from Human   Resources on 16^th March, 2016 and was accompanied by two Trade   Union Shop Stewards. The Complainant was informed at the outset that it was a   formal investigation meeting and that the initialling of the Goods Receipt Slip   would be investigated under the Company’s Disciplinary Procedures as gross   misconduct with a possible sanction up to and including dismissal. It was   indicated that what he had done was considered as fraud. The Complainant explained that he had meant   to “pp” the document but with all of the work and pressure that he was under   in his job and the amount of people using his area that the Goods Receipt   Slip must have got mixed up with other paperwork and he subsequently didn’t   have the chance to complete the “pp” on the document. The Complainant also   explained that the Goods Receipt Slip was not a controlled document and that   he had not altered any information on it and his actions did not result in   any damage to the product concerned or to the organisation. The meeting concluded with Ms. B indicating   to the Complainant that the matter was being investigated as gross misconduct   and that he was being suspended on full pay.   One of the Shop Stewards argued on behalf of the Complainant that the   incident did not fall within the category of gross misconduct and that there   was no requirement to suspend him. The   Complainant accepts that the incident may have amounted to misconduct but   strongly refutes that his actions amounted to gross misconduct or fraud as was   contended by the Respondent.

On 23^rd March, 2016, the Complainant attended a   further meeting with Ms. B from Human Resources and the Quality Control   Facilitator and was accompanied by two Trade Union Shop Stewards. The   Complainant was again questioned about the initialling of the Goods Receipt   Slip and the Respondent sought to introduce a new allegation in relation to   the backdating of the document in respect of which an objection was raised by   the Shop Steward. The Respondent also sought to introduce two Incident Reports   (IR’s) that the Complainant was involved in previously in the context of   these having a similar standing to a disciplinary warning on record to   undermine the Complainant’s blemish free disciplinary record. The Complainant   again pointed out the mitigating factors which had resulted in him   initialling the Goods Receipt Slip including the severe pressure of work which   he had been experiencing at that juncture and referred to the fact that he   had not obtained any personal gain or advantage from his actions.

On 24^th March, 2016, the two Trade Union Shop Stewards   were informed by Ms. B that a decision had been taken to terminate the   Complainant’s contract with immediate effect.   The Shop Stewards again argued all the points that they had previously   argued in support of the Complainant and indicated their view that the   appropriate sanction would be a written warning with retraining. Ms. B   responded that it was not her decision and the decision to dismiss the   Complainant had been taken by the Head of Human Resources. Ms. B then asked   the Shop Stewards to consult with the Complainant to establish if he wished   to resign his position rather than accepting the dismissal. Following consultation, the Complainant   indicated that he was not prepared to resign and this information was   communicated by the Shop Stewards to Ms. B. The Complainant was informed of   the decision to terminate his contract of employment by the Head of Human   Resources at a meeting which took place later that day on the 24^th   March, 2016. The Complainant refused to accept the letter of dismissal from   the Head of Human Resources at this meeting and indicated that he would be   appealing the decision. The letter of dismissal was subsequently sent by post   to the Complainant.

The Complainant submits that there was no disciplinary   meeting and that the decision to dismiss was taken by the Head of Human   Resources without him being afforded the opportunity to put his case to him in   advance of the decision been taken.   The Complainant submits that this is clearly a breach of fair   procedures and contrary to the requirements of the Industrial Relations Act,   1990 (Code of Practice on Grievance and Disciplinary Procedures)   (Declaration) Order, 2000[1].

The Complainant’s appeal hearing took place on 26^th   April, 2016 and his appeal was heard by the Respondent’s General Manager. The   Complainant’s main grounds of appeal were that he had not received a fair   hearing prior to his dismissal, the procedures adopted in investigating the   matter were flawed from the outset, that he was wrongly suspended and the   person who made the decision to dismiss should have met with him to hear his   case. The Complainant also argued that   the incident which led to his dismissal was not “fraud” within the true   meaning of the word and that he had not obtained any personal gain or benefit   from his actions. The Complainant also   put forward examples of incidents involving other operators which had not   resulted in a sanction of dismissal. The Complainant received written   notification from the Respondent’s General Manager on 13^th May,   2016 that his appeal had not been upheld.

The Complainant also submits that he was dismissed without   being afforded his statutory notice entitlement of payment in lieu thereof   which he contends was in contravention of Section 4 of the Minimum Notice and   Terms of Employment Act, 1973.

CA-00004862-001   – Complaint under the Unfair Dismissals Act, 1977

The Relevant Law

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(1)   Subject to the provisions of this section, the dismissal of an employee shall   be deemed, for the purposes of this Act, to be an unfair dismissal unless,   having regard to all the circumstances, there were substantial grounds   justifying the dismissal.

…

(4) Without prejudice to the generality of   subsection (1) of this section, the dismissal of an employee shall be deemed,   for the purposes of this Act, not to be an unfair dismissal, if it results   wholly or mainly from one or more of the following:

(a) the capability, competence   or qualifications of the employee for performing work of the kind which he   was employed by the employer to do,

(b) the conduct of the employee

(c) the redundancy of the   employee, and

(d) the employee being unable   to work or continue to work in the position which he held without   contravention (by him or by his employer) of a duty or restriction imposed by   or under any statute or instrument made under statute.

(6) In determining for the purposes of   this Act, whether the dismissal of an employee was an unfair dismissal or   not, it shall be for the employer to show that the dismissal resulted wholly   or mainly from one or more of the matters specified in subsection (4) of this   section or that there were substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of   subsection (1) of this section, in determining if a dismissal is an unfair   dismissal, regard may be had, if the adjudication officer or the Labour   Court, as the case may be, considers it appropriate to do so—(a) to the   reasonableness or otherwise of the conduct (whether by act or omission) of   the employer in relation to the dismissal, and(b) to the extent (if any) of   the compliance or failure to comply by the employer, in relation to the   employee, with the procedure referred to in section 14(1) of this Act or with   the provisions of any code of practice referred to in paragraph (d) (inserted   by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

The material facts in this case, including the fact of   dismissal, were not in dispute between the parties. The Respondent contends that   the Complainant was dismissed on the grounds of gross misconduct after it   transpired that he had breached the Company’s good manufacturing practice (GMP)   and data integrity procedures. The Complainant does not dispute that the   incident which gave rise to his dismissal constituted a breach of the   Respondent’s data integrity procedures. However, the Complainant contends   that the penalty of dismissal was totally disproportionate when all the   circumstances of the case are taken into consideration and that a sanction of   a written warning and further training would have sufficed given the nature   of the indiscretion. The Complainant also contends that the entire manner in   which the dismissal was effected was procedurally flawed and totally lacking   in fairness. Therefore, the two issues   which I must consider in the context of deciding the fairness or otherwise of   the dismissal in the present complaint are (1) whether the Respondent acted   reasonably in dismissing the Complainant and 2) whether the dismissal adhered   to the principles of fair procedures.

The approach of   whether a reasonable employer would have dismissed the employee in the same   circumstances was explained by Noonan J. in the High Court case of Bank of   Ireland –v- O’Reilly[2]   where it was held that: “…the onus is on the employer to establish   that there were substantial grounds justifying the dismissal and that it   resulted wholly or mainly from one of the matters specified in s.6(4),   which includes the conduct of the employee or that there were other   substantial grounds justifying the dismissal. Section   6(7) makes clear that the court may have regard to the reasonableness of   the employer’s conduct in relation to the dismissal. That is however not to   say that the court or other relevant body may substitute its own judgment as   to whether the dismissal was reasonable for that of the employer. The   question rather is whether the decision to dismiss is within the range of reasonable   responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay   UKEAT/0506/09/DM.

9. Allied Irish Banks v. Purcell [2012]   23 ELR 189, where she commented (at p. 4):

“Reference is made to the   decision of the Court of Appeal in British   Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of   Lord Denning MR at page 93:

‘The correct test is: was it   reasonable for the employers to dismiss him? If no reasonable employer would   have dismissed him, then the dismissal was unfair. But if a reasonable   employer might reasonably have dismissed him, then the dismissal was fair. It   must be remembered that in all these cases there is a band of reasonableness,   within which one employer might reasonably take one view, another quite   reasonably take a different view.”

It is clear that it is not for   the EAT or this court to ask whether it would dismiss in the circumstances or   substitute its view for the employers view but to ask was it reasonably open   to the respondent to make the decision it made rather than necessarily the   one the EAT or the court would have taken.”

The incident which gave rise to the Complainant’s   dismissal occurred on 12^th February, 2016 after it came to the   attention of management (on 14^th March, 2016) that there had been   a possible breach of GMP and data integrity procedures. Following an   investigation into this matter, the Respondent established that the   Complainant had falsely and deliberately signed the initials of another   employee on a Goods Receipt Slip in circumstances where there was no record   that this employee had checked the batch of products in respect of which the   GRS had been generated and that the Complainant had also backdated the   document. During the subsequent investigation into the matter, the   Complainant admitted that he had falsified the initials of another employee   and that he had backdated the document albeit that he put forward mitigating   circumstances for doing so on the basis of the pressure of work which he was   experiencing at the material time.

The Respondent adduced extensive evidence in relation to   the highly regulated nature of the business within which it operates and the   mandatory regulatory requirements which it is obliged to comply with which   are known in the industry as GMP. The Respondent emphasised that GMP includes   an absolute data integrity requirement, namely, that records are accurate and   demonstrate that all steps required by the defined procedures and guidelines  are implemented. The Respondent gave evidence that all employees were made fully   aware of the importance of the data integrity requirements and a number of   training sessions had been conducted with all staff, including the   Complainant, during 2015/16 on the relevant procedures and the consequences   of breaching data integrity procedures.   The importance of these procedures was also reiterated to staff   members by the General Manager by e-mail on 24^th August, 2015 in   which it was pointed out that disciplinary action for breaches of data   integrity would result in sanctions up to and including dismissal. The Respondent also adduced evidence that   the Company has a zero-tolerance policy with regard to non-compliance with   GMP and its Disciplinary Procedures set out explicitly that the list of   “Gross Misconduct” offences include “fraud” and the “wilful disregard for   SOP’s or Regulatory requirements”. The Complainant accepts that he attended   this training and that he was aware of the implications and disciplinary consequences   for breaches of these requirements.

The Respondent contends that the incident which resulted   in the Complainant’s dismissal constituted a fundamental breach of the duties   under his contract of employment as well as multiple breaches of the   Company’s GMP/data integrity obligations. The Complainant was found to have acted in a   manner that amounted to gross misconduct and in light of the irreparable   damage in the relationship of trust and confidence between the employer and   employee the decision was taken to dismiss him.

Having regard to the evidence adduced, I am satisfied that   compliance with GMP/data integrity procedures is of paramount importance in   the industry within which the Respondent operates, namely the manufacture of   healthcare products, and that any breaches of the regulatory requirements in   this regard can potentially have very serious implications both for the users   of the Respondent’s products and the Company itself, including the risk of   closure of the plant or other sanctions by regulatory authorities. I am   satisfied that the Respondent went to great lengths during the twelve month   period prior to the incident which led to the Complainant’s dismissal to   communicate to all staff members, including the Complainant, the importance   of full compliance with GMP and data integrity procedures. I am satisfied that the Complainant was   fully aware of the importance and significance in terms of compliance with   these procedures and of the potential disciplinary sanctions, up to and   including dismissal, for breaches of the relevant requirements. I find that the   Complainant’s actions in terms of the incident that occurred on 12^th   February, 2016 clearly constituted a breach of the Respondent’s GMP/data   integrity procedures and that this breach amounted to gross misconduct under   the Respondent’s established Disciplinary Procedures.

In all the circumstances of this case, I find that the   actions of the Respondent were within the range of reasonable responses open   to it and that substantial grounds did exist to justify the Complainant’s   dismissal.

The Complainant also contends that the Respondent’s   approach to the imposition of disciplinary sanctions has been applied in an inconsistent   manner and reference was made to two other cases where it was alleged that   employees (i.e. Employees X and Y) had breached the data integrity procedures   and a lesser sanction than dismissal was applied. The Respondent disputes the   Complainant’s contention on this issue and contends that it has a zero   tolerance policy in relation to non-compliance with data integrity procedures   and that any breaches of its policy are deemed to constitute gross misconduct   which is subject to a sanction of summary dismissal.

I prefer the Respondent’s evidence on this matter and I am   satisfied that the Respondent has, in fact, applied the sanction of dismissal   in a consistent manner in other situations involving a breach of data   integrity procedures. I have taken cognisance of the evidence adduced by the   Respondent’s Head of Human Resources and General Manager who both gave   evidence that there have been five other employees dismissed by the Company in   recent years for non-compliance with the data integrity procedures. I accept   the Respondent’s evidence that in the cases of Employee X and Employee Y a   decision was taken following investigation to dismiss both employees for   breaches of data integrity procedures and falsification of data; however,   both employees were subsequently allowed to resign following submissions from   their trade union representatives. I also accept the Respondent’s evidence in   relation to another situation whereby the sanction of a final written warning   was applied to an employee in a situation where there was an element of doubt   as to whether the employee concerned had acted on the instructions of their   supervisor in terms of their non-compliance with the data integrity   procedures. I am satisfied that this case is distinguishable from the   situation that pertained in the present case in that there was no doubt   whatsoever that the Complainant had committed a breach of data integrity   procedures of his own volition whilst being fully aware of the potential   disciplinary sanctions for non-compliance with the relevant procedures.

The next issue which I must consider relates to the   procedural fairness or otherwise of the Complainant’s dismissal. The Complainant   contends that the procedures which were invoked by the Respondent in terms of   the manner in which the investigation and disciplinary procedures were   conducted were flawed from the outset. The Complainant contends that there   was a total lack of transparency and impartiality throughout the process with   the result that he was denied his fundamental rights under natural and   constitutional justice.

The Industrial Relations Act, 1990 (Code of Practice on   Grievance and Disciplinary Procedures) (Declaration) Order, 2000[3]   sets out the general principles that should apply in the operation of   disciplinary procedures and the promotion of best practice in giving effect   to these procedures. The Code states that the procedures applied must comply   with the general principle of natural justice and fair procedures, which   include that:

1. the   details of the allegations or complaints be put to the employee concerned;
2. the   employee concerned be given the opportunity to respond fully to any such   allegations or complaints;
3. the   employee concerned is given the opportunity to avail of representation; and
4. the   employee concerned has the right to a fair and impartial determination of the   issues being investigated, taking into account the allegations or complaints   him or her, the response of the employee concerned to them, any   representations made by or on behalf of the employee concerned and any other   relevant or appropriate evidence, factors or circumstances.

In considering   this matter, I am satisfied that the Respondent had an established Grievance   and Disciplinary Procedure in place which conforms to the general principles   and procedures enunciated in the Code of Practice.

I have   carefully considered the manner in which the disciplinary procedures were   applied in the present case and I am satisfied that the Complainant was given   advance notice of meetings, was advised of the seriousness of the matters   being investigated, was afforded the opportunity to attend an investigation   meeting and a separate disciplinary hearing, was offered representation at   all meetings and had all allegations put to him and was given the opportunity   to respond to them. He was also afforded an appeal process which was heard by   the General Manager, who had not been involved in the initial investigation   and decision to dismiss.

I note the   Complainant’s point that the allegations of gross misconduct were not given   to the Complainant in writing at the outset of the investigation. However, I   am satisfied that the details of the alleged gross misconduct were clearly   articulated to the Complainant from the outset and that he was made fully   aware of the nature of the investigation that was being conducted and that   the Respondent was treating the matter with the utmost seriousness. The Complainant admitted at the outset that   he had breached the data integrity requirements and given the seriousness of   such an action and the potential adverse consequences which could have   resulted for the Respondent, I am satisfied that the Respondent was entitled   to place him on suspension pending the outcome of the investigation and   disciplinary procedures. Furthermore, I   cannot accept the Complainant’s contention that the decision to dismiss was   taken by the Respondent early on during the investigation. I am satisfied   that Ms. B and the Quality Control Facilitator carried out a thorough and   comprehensive investigation into the matter and upon the conclusion of the process   made a recommendation that his conduct amounted to gross misconduct and   merited dismissal. The Complainant and his representatives were afforded   ample opportunity to respond to the allegations during the investigation and   disciplinary process. The decision to   dismiss was ultimately taken by the HR Director (as per the Respondent’s   Disciplinary Procedures) after having carefully reviewed the evidence   presented during the investigation.

On balance,   therefore, I find that the manner in which the Respondent conducted the   investigation, disciplinary hearing and appeal did in fact comply with fair   procedures and natural justice. In the   circumstances, I find that the Complainant was not unfairly dismissed by the   Respondent within the meaning of Section 6 of the Acts. Accordingly, I find   that the Complainant’s claim under the Unfair Dismissals Act is not well   founded.

CA-00004862-002   – Claim under the Minimum Notice and Terms of Employment Act, 1973

On the grounds of my previous finding that the   Complainant's actions constituted gross misconduct, for which summary   dismissal was an appropriate and proportionate sanction, I am satisfied that   the Complainant is not entitled to statutory notice. Accordingly, the   complaint under the Minimum Notice and Terms of Employment Act, 1973 is not upheld.

I find that the   Complainant was not unfairly dismissed by the Respondent within the meaning   of Section 6 of the Acts. Accordingly,   I find that the Complainant’s claim is not well founded.

As the dismissal was deemed not to be an unfair dismissal   and the Complainant was dismissed for gross misconduct, his claim for statutory   notice under the Minimum Notice and Terms of Employment Act, 1973 is not   upheld.

Unfair Dismissal –   Minimum Notice – summary dismissal - gross misconduct – fair procedures –   Complaints not upheld