Complainant

Respondent

Anonymised Parties

An Employee

A Recruitment 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-00009425-001

31/01/2017

The Respondent is a Recruitment Company. The Complainant, who was a direct employee of the Respondent, was placed, in the role of Product Operator, at a Client site on 16 July 2014.

Following an incident on the Client site on 28 September 2016, the Complainant's contract of employment with the Respondent was terminated with effect from 29 September 2016.

The hearing into the Complainant’s complaint was first held 14 September 2017 and was adjourned to a second date. The rescheduled hearing took place on 25 January 2018.

The Complainant's legal representative stated, on his behalf, that there was no evidence that he was guilty of gross misconduct. According to the Complainant's representative, the testing process in which he was involved, provided for the occurrence of errors on the part of the testers and the correction of such errors by identification and reset process.

It was submitted that this corrective procedure does not appear to have been known to the Respondent’s disciplining officer, when she purported to perform the Disciplinary Hearing contrary to the Respondent's contention that a thorough and comprehensive disciplinary process was undertaken. In support of their submissions in this regard, the Complainant's legal representative cited two cases.

In the first of these, Frizelle v New Ross Credit Union Ltd [1997] IEHC 137], it was pointed out that Flood J identified "certain premises which must be established to support the decision to terminate employment for misconduct". It was stated that, among these premises, the Judge listed the following:

         i.            The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

       ii.            Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

     iii.            The employee should be interviewed and his or her version noted and furnished to a deciding authority contemporaneously with the complaint and again without comment.

     iv.            The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.

       v.            The actual decision, as to whether a dismissal should follow, should be a decision proportion to the gravity of the complaint and of the gravity and effective dismissal on the employee.

In summarising the decision in this case, the Complainant's legal representative drew attention to Flood J’s comment that "put very simply, principles of natural justice must be unequivocally applied".

In addition to the above case, the Complainant's representative also cited Kilsaran Concrete v Vet [UD 11/2016]. It was submitted that this case set down "certain fundamental requirements" of fair procedures that could not be disregarded. It was admitted that these included:

         i.            To make the employee, who is subject of the investigation, aware of all of the allegations against him or her at the outset of the process.

       ii.            That an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process: and

     iii.            in the event that an allegation against the employee is upheld, any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.

It was stated, on behalf of the Complainant, that he was never afforded any opportunity to determine what precisely was alleged against him by his Line Supervisor (LS).

It was further stated that the Complainant was prevented from bringing a work colleague to the disciplinary meeting. Consequently, it was submitted that the Complainant was isolated and alone and completely disadvantaged at the disciplinary hearing, contrary to the purported policy of the Respondent that he would be entitled to the benefit of a colleague or union representation.

According to his legal representative, the Complainant is aware of other colleagues who made errors and who were never subject of a dismissal, summary or otherwise. It was submitted that the process is designed and the employees are trained, as can be seen from test documentation, to correct any error which might occur.

It was submitted that, in this instance, the alleged pre-population of the test entitled "Over All Test”, as a pass, cannot place any person in jeopardy as the component must and did pass through all sections of testing process to first reach a successful final pass, which it did. It was further submitted that the component was never withdrawn and was allowed to proceed along the assembly process.

According to his legal representative, the Complainant sought an opportunity from his supervisor to, in full accordance with work practices and the training he had received, correct any error, but this opportunity was denied to him.

It was submitted that the existence or fact of an allegation of pre-population of test results was put to the Complainant at the purported disciplinary meeting, which he attended on his own, without him being given an opportunity to canvas the entire circumstances of the alleged incident. As an example of this, it was submitted that the Complainant could not put his side of the story or his version of events to his LS. Consequently, it is submitted that it cannot be deemed to be characterised as the Complainant having been afforded "full and fair” procedure as per the requirements of the Code of Practice on Grievance and Disciplinary Procedures (SI No 146 of 2000).

It was further submitted that the Deciding Officer, by baldly asserting, in the letter dated 7 October 2016, that she has "no choice but to confirm the decision that you be summarily dismissed", confirmed that the process was fundamentally flawed, unfair, unreasonable and disproportionate as no other sanction was contemplated more appropriate to the alleged offence.

In conclusion, the Complainer's legal representative submitted that the dismissal of the Complainant was entirely disproportionate to the alleged offence. It was submitted that, even on the strength of the Respondent’s own Disciplinary Policy Document, a menu or range of sanctions could have been imposed on the Complainant and no regard was given by the Respondent to the consequences for the Complainant of his summary dismissal.

It was stated that the Respondent's response/decision was disproportionate and was entirely unreasonable and unfair even if the disciplinary process had been fair and proper. However, the process was neither fair nor proper and did not comply with the principles of natural justice.

In response to the Complainant's complaint, the following submission was made on behalf of the Respondent, by its legal representative:

Background:

The Respondent forms part of a group of companies and is a leading provider of recruitment and agency services. As part of its Managed Service operations, the Respondent outsources employees to clients. The Complainant was employed as a Production Operator suitable for assignment to clients of the Respondent under an ongoing fixed term contract that commenced on 16 July 2014.

The Complainant was assigned to a medical devices client site as a Production Operator. As part of his duties on this site, the Complainant was responsible for carrying out PSOL product testing. The Complainant received a number of different training sessions on this testing process, the most recent of which was completed on 27 September 2016.

Disciplinary Incident:

On 28 September 2016, the Complainant was carrying out testing of the PSOL Products. When the product testing was 90% complete, the Complainant went to get a glass of water and pre-populated the test results sheet to indicate that the product had passed before the test had been completed. This pre-population of the test results is a breach of the Client organisation’s GMP, GDP procedures and their Quality Policy. Further, the pre-population of the test results posed a serious risk to the safety to the patients would ultimately use the product.

On 29 September 2016, as part of the investigation process, the Respondent’s HR Director (HRD) met with the Complainant to discuss the incident. In an email following this meeting, the HRD confirmed to the Complainant that he was to be suspended with pay to enable an investigation to be carried out. The Complainant was also advised that the allegations, if proven, could result in the immediate termination of his employment.

By letter dated 3 October 2016, the Respondent’s Account Specialist (AS) invited the Complainant to a disciplinary hearing on 6 October 2016. On the following day, 4 October 2016, the HRD sent a follow-up email to the Complainant enclosing the invite to the disciplinary hearing and a copy of the pre-populated test.

The Disciplinary Hearing took place on 6 October 2016 and was conducted by the AS. At this meeting, the Complainant confirmed that he had pre-populated the test result as a "pass" when leaving his station to get a drink of water but maintained that this was a result of human error. The Complainant also argued that the PSOL would not have passed him if it had failed. The Complainant confirmed that he understood and always followed the correct procedure and that he had received training.

On 7 October 2016, the AS wrote the Complainant informing him of the outcome of the disciplinary hearing. Having considered all of the matters discussed at the Hearing and the evidence presented, the AS concluded that the allegations of gross misconduct were substantiated. On that basis, she informed the Complainant that she had no choice but to confirm his dismissal without notice or payment in lieu of notice in accordance with the Disciplinary Policy.

By way of correspondence, dated 11 October 2016, the Complainant wrote to the Respondent's Programme Manager to appeal the decision on the following grounds: (i) the fact that there was no actual consequence to both patient safety and the Respondents client and (ii) that the Complainant did not receive a fair disciplinary hearing as he was not afforded time to bring someone to the hearing and that an effort to do so on his part was prevented.

The Complainant was invited to an Appeal Hearing on 1 November 2016. The appeal was heard by the Respondent's Operations Manager Ireland (OMI). The Appeal Hearing was rescheduled to 4 November 2016, as the Complainant failed to attend on 1 November 2016, claiming that he understood the hearing was scheduled for another date. The Appeal Hearing on 4 November 2016 was adjourned when the Complainant attempted to record the meeting without the Respondent's permission. The Appeal Hearing eventually took place on 8 November 2016.

At the appeal hearing, the OMI discussed each of the grounds of appeal raised by the Complainant and afforded him the opportunity to put forward his case in respect of each ground. The Complainant again argued that the pre-population was done in human error. By way of letter dated 24 November 2016, the OMI issued a detailed decision on the Appeal. The OMI found that the disciplinary process had been conducted fairly and the sanction imposed was in line with the Respondent's Disciplinary Policy. Accordingly, the Complainant's dismissal was upheld.

In support of the decision to dismiss the Complainant, the Respondent's legal representative presented the following arguments:

Required Safety Standards in Safety Critical Working Environments:

The Complainant was assigned to work in a safety critical environment and carry out his duties with the requisite level of skill and attention to detail. The Respondent's business is depending on its clients having faith in the ability of all staff, assigned by the Respondent, to carry out their duties with due care and skill in particular given the safety critical environment in which they operate.

The Respondent regards its obligations in this respect with the utmost seriousness and adopts a zero-tolerance approach in circumstances where employees fail to adhere to the required safety standards.

Full and Fair Procedures – Disciplinary Process:

The Complainant was afforded full and fair procedures in accordance with the Respondent's disciplinary policy and procedure. The Disciplinary policy, which is in accordance with the Code of Practice on Grievance and Disciplinary Procedures (S.I. No 146 of 2000), entitles the Respondent to summarily dismiss an employee, following the conduct of a disciplinary process in which the employee is afforded full and fair procedures, where the employee is found to have committed gross misconduct.

The Respondent's policy defines "gross misconduct" to include: “action or omission which endangers the health and safety of other employees, customers or members of the public" and/or "a single act of gross incompetence and gross dereliction of duty".

From the outset of the investigation, the Complainant was afforded full and fair procedures and natural justice and was made fully aware of the allegations made against him. The Complainant was provided with copy documentation relating to the allegations (namely the pre-populated test result completed by the Complainant) in advance of the initial disciplinary hearing. The Complainant was informed in advance of his right to be accompanied at both the disciplinary hearing and the appeal meeting.

In advance of the disciplinary hearing, the Complainant was informed that, in the event that he was found guilty of gross misconduct, his employment with the Respondent could be terminated with immediate effect. The Complainant was given every opportunity to (i) respond to the allegations raised against him at the disciplinary hearing, (ii) put forward any explanation or relevant mitigating factors and (iii) the Complainant's submissions in this regard were given careful consideration by the Respondent before the allegation of gross misconduct was ultimately upheld and the Complainant's employment summarily terminated in line with the Respondent's Disciplinary Policy.

The Complainant was notified of his right to appeal the decision to terminate his employment on 7 October 2016 as part of the disciplinary process. The Complainant submitted his grounds of appeal on 11 October 2016. Following a number of unsuccessful attempts, the appeal meeting was ultimately held on 8 November 2016. The Respondent's Operations Manager, who had not been involved in the investigation or disciplinary process up to that point, was appointed to conduct an independent appeal process. The Complainant was again informed of his right to be accompanied at the appeal hearing but did not bring anyone to the meeting. The Complainant was afforded the opportunity to put forward his grounds of appeal in respect of the disciplinary process and its outcome.

The Respondent carefully considered and responded to all of the issues raised by the Complainant before concluding that the disciplinary process had been conducted in accordance with the principles of fairness. The sanction of dismissal was found to be proportionate in the circumstances having regard to the act of gross misconduct committed by the Complainant and the disciplinary procedures which were followed.

Legal Submissions – Unfair Dismissal:

The Respondent's legal representatives made significant submission in relation to the legal underpinning of their position. These submissions included, inter alia, the following:

1)      Fair Dismissal:

It was submitted that the pre-population of the test results, which posed a significant risk to both patient safety and the reputation of both the Respondent and their Client, was an act of gross misconduct which amounts to a "substantial ground justifying dismissal" within the meaning of the Unfair Dismissal Act.

It was further submitted that the Complainant's conduct constituted (i) a breach of trust and confidence, (ii) reckless non-compliance with safety requirements and (iii) an act of gross misconduct which could have endangered the health and safety of patients using the product. It was therefore submitted that the dismissal of the Complainant, insofar as it resulted a of wholly or mainly from the Complainant’s own conduct, was a fair dismissal.

The Respondent believed, after investigation, that the Complainant had committed the act of gross misconduct alleged. The Complainant admitted to pre-populating test results although he attributed this to "human error" despite the extensive training he received and the strong emphasis placed on the correct completion of documentation. It was, therefore, submitted that the Respondent had reasonable grounds to sustain the belief that the Complainant had engaged in the misconduct as alleged.

It was submitted that, in circumstances where the Complainant was afforded full and fair procedures during the disciplinary process and the sanction of dismissal was reasonable and proportionate, the dismissal must be considered as fair.

2)      Gross Misconduct:

It was submitted that the Complainant's conduct fell within the scope of the examples of gross misconduct as set out in the Respondent's Disciplinary Policy. It was submitted that the Complainant potentially endangered the health and safety of members of the public by falsifying the test results which constitutes a single act of gross incompetence. The Respondent further submitted that the Complainant had been given extensive training on the testing process and was aware that his actions could constitute gross misconduct which could result in summary dismissal.

It was further submitted that the Complainant's actions constituted neglect of his duties which could have resulted in potentially serious consequences both the health and safety of patients using the product and the reputation of both the Respondent and their Client. It was, therefore, submitted that the Respondent's action in dismissing the Complainant having concluded, by way of a thorough and comprehensive process, that his conduct amounted to gross misconduct, was justified.

3)      Full and Fair procedures were afforded:

It was submitted that full and fair procedure was afforded to the Complainant throughout the disciplinary process which was conducted in accordance with the Respondent's Disciplinary Policy. Consequently, it was submitted that the Respondent handled the matter of the Complainant's misconduct in line with full and fair procedures, as set out elsewhere in their submissions.

4)      Breach of Trust and Confidence:

It was submitted that the Respondent's business is dependent on its reputation as an outsourcer of skilled and diligent employees to its clients. It was further stated that clients, such as the Client in this case, place trust in the Respondent's ability to provide such staff.

Given the safety critical environment in which the contracted employees operate within the Client site, the Respondent must have the utmost faith in their ability to carry out the work required according to the highest standards of safety and skill.

It was submitted that failure to adhere to the standards places the Respondent's business relationship with his clients at risk and undermines the relationship of trust and confidence it has in its employees.

Consequently, it was submitted that the Complainant’s act of gross misconduct amounted to a "fundamental breakdown of trust and confidence". It was further submitted that the Respondent was therefore justified in summarily dismissing the Complainant as a result of his gross misconduct, in circumstances where the relationship of mutual trust and confidence had been broken down.

It was submitted that, in these circumstances, the Respondent could no longer have faith in the Complainant's ability to carry out its duties and "not engage in conduct which is detrimental to the interests of either the employer or any of its Clients and take all reasonable steps to safeguard his or her own safety and the safety of any other person who may be affected by his/her actions in the course of performing the services", as set out in the Complainant's Terms and Conditions of Employment.

5)      Dismissal as a proportionate sanction:

The Respondent submitted that, given the circumstances pertaining to this case, the decision to terminate the Complainant's employment was fair and proportionate. It was submitted that the Complainant was well aware of the importance of adhering to the proper testing procedures, having received extensive training in such processes and was well aware of the serious consequences which could result from failing to abide by such procedures.

In support of its submission in this regard, the Respondent referred to the following case law:(I) UD 939/2010 [Bigaignon v Powerstream Electrical Services Ltd] in relation to the application of a "Zero Tolerance Policy" as it applies to health and safety matters, (ii) UD 674/2004 [O’Lionsigh v Community Technical Aid] in relation to the standard for the proportionality test with regard to the reasonableness of the sanction(iii) ELR 240 – 2009 [Frank Short v Royal Library Assurance] in relation to the fair and reasonable approach to both disciplinary procedures and sanctionsand (iv) UKEAT/00430/11/DM [Wincanton plc v Atkinson & Morrison] in which it was held that the fact that a potential risk to the health and safety of an employee and his team did not materialise, is irrelevant to the consideration of whether the decision to dismiss is proportionate.

Based on the above, it was submitted that the sanction of dismissal falls within the range of reasonable responses to the Complainant's act of gross misconduct regardless of the fact that the risk to the health and safety of the patient using the product did not ultimately materialise. It was submitted that the fact remains that the Complainant was aware of the importance of proper testing procedure and that, given the potential serious consequence arising out of his gross misconduct in the terms of the risk to the safety of patients who ultimately use the product and also to a serious reputational risk to both the Respondent's and the Client's businesses, the Respondent was left with no suitable alternative sanction other than to immediately terminate the Complainant’s employment.

Conclusion:

In conclusion, the Respondent's legal representative submitted that the Complainant was fairly dismissed for gross misconduct after a thorough and comprehensive disciplinary process which afforded him full and fair procedures in line with the principles of natural justice.

It was submitted that, having completed a number of different training sessions in these procedures, the Complainant was well aware of the appropriate testing procedures and the quality procedures in place in the Client's workplace. Consequently, it was submitted that his actions in pre-populating the test results, breached the applicable policies and potentially endangered the health and safety of patients who ultimately use the product, as well as potentially damaging the reputation of both the Respondent and their Client.

It was therefore submitted that, in the circumstances, the dismissal of the Complainant by the Respondent was a reasonable and proportionate response to the Complainant’s misconduct. It was further stated that the procedures followed during the disciplinary process were full and fair and, as such, the Complainant's dismissal was not unfair.

Section 6 (1) of the Unfair Dismissal Act 1977 states that:

“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 the circumstances, there were substantial grounds justifying the dismissal."

Section 6 (4) of the Act further states that:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following…..(b) the conduct of the employee….”

Section 6 (6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal are 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 other substantial grounds for justifying the dismissal.”

The combined effect of the above sections of the Act require that I consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds of misconduct, was reasonable in the circumstances.

It is well established in case law that it is the role of the Adjudicator in such cases, is not to determine what decision he/she might have made, but to solely consider the reasonableness of the Respondent’s decision in the particular circumstances as they existed in the case under adjudication.

In this regard, I note the view of Lord Denning in British Leyland UK Ltd v Swift, when he stated that “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.” Lord Denning’s decision in this case has regularly been cited in cases in this jurisdiction.

In order to assess the reasonableness or otherwise of the Respondent’s decision in this case, it is necessary for me to consider two key aspects central to establishing if a dismissal is fair or unfair. Firstly, I am required to consider whether the Respondent had reasonable cause to dismiss the Complainant and, secondly, whether, in implementing their decision, the Respondent conducted a fair and reasonable process, which protected the Complainant's rights in this regard.

My considerations of these aspects and my findings based thereon, are as follows:

Grounds for Dismissal:

The facts of the alleged incident are not in dispute. The Complainant vacated his workstation prior to the conclusion of the test process. In doing so, he pre-populated the test results, indicating the product had successfully passed the test, when in fact it had not at that point. Prior to leaving his workstation, the Complainant left the test sheet under an item at his station. After the Complainant had left his workstation, his Line Supervisor (LS) noticed that the test was still running.

Based on this evidence, I am satisfied that the Complainant made a clear and deliberate decision to leave his workstation and to pre-populate the test results, thereby confirming a positive conclusion to the process. In his evidence, the Complainant indicated that he did so in order to get a drink of water. No evidence was presented at the Hearing which would indicate that there was any urgency with regard to the Complainant’s need in this regard. It is also noted that there is a conflict of evidence between the Complainant and his LS with regard to the direction from which the former came when returning to his workstation. Consequently, taking both of these issues into consideration I find there to be a lack of credibility in relation to the Complainant's contentions in this regard.

I am also of the view that the Complainant’s original categorisation of his actions in pre-populating the test results is not consistent with the evidence as set out above. If the Complainant’s actions were motivated by a genuine need for a drink of water, then clearly, at worst, this would have resulted in him leaving his station while the test was still running. However, his decision to pre-populate the test result prior to leaving his station can only be seen in the context of a deliberate attempt to cover up his action and deceive his supervisor.

The Respondent presented significant evidence with regard to the Complainant's training and awareness in relation to the procedures pertaining to his work and, in particular, the testing of the PSOL Product. The evidence in this regard was such that I am satisfied that the Complainant was fully aware as to the requirements pertaining to product testing.

The Complainant's legal representative drew attention to the Respondent’s espoused training policy of acknowledging errors and being provide with the opportunity to rectify mistakes. It was contended, on the Complainant's behalf, that the Respondent’s approach to the issue of the pre-population of the PSOL Test was at odds with this policy.

Having carefully considered the submission made in this regard, I am satisfied that the Complainant's actions in relation to the pre-population of the test cannot reasonably be considered in the context of an administrative or clerical error, which I believe, on the balance of probability, the espoused policy most likely designed to address. As already stated, I find that the Complainant's decision to leave his workstation and to pre-populate of the test results prior to the conclusion of the process, was a deliberate act, which was done in breach of procedures and all guidelines pertaining to the testing process. Therefore, I am satisfied that the Complainant’s actions in this regard cannot be considered as a mere administrative error.

It is clear, from the evidence adduced, that the Respondent and the Client site adopt a "zero-tolerance" policy in relation to the manufacturer/testing of product which is earmarked for use by the general public. I am satisfied, from the evidence produced, that the Respondent/Client is subject to ongoing inspection from regulatory authorities both nationally and internationally. Consequently, I am of the view that it is inappropriate for any external third party, other than those in a regulatory capacity, to address the appropriateness or otherwise of such policies or their implementation.

I am further of the view that the fact that the product under test at the time of the incident subsequently achieved a Pass rating is irrelevant. Actions that fundamentally constitute misconduct cannot be mitigated or lessened by potential outcomes which are outside the control of the employee.

Taking all of the above into consideration, I conclude that it was not unreasonable for the Respondent to consider the Complainant's leaving his workstation in advance of the conclusion the testing process, but, more particularly, his pre-populating the test results with the successful outcome, to be an act of gross misconduct, which had potentially serious consequences both for product safety and reputational standing.

Based on the above conclusion, I find that the Respondent's decision to dismiss the Complainant was reasonable and that such a sanction was not disproportionate in the circumstances.

Application of fair process/procedure:

The principle of “fair procedure/natural justice”, which is recognised at law, provides a right to basic fairness of procedures. It is imported into the employment relationship, by implication or explicitly (where there are appropriate and relevant procedures in existence). In simple terms, “fair procedure/natural justice” means that the employer must apply fair procedures and act reasonably at all times.

In order to ensure the application of these rights, particular, where a case involves potential disciplinary section, including possible dismissal, it is widely accepted that an employer should:

(a) provide the employee with full details of the allegations being made,

(b) allow the employee to respond to those allegations, by way of reply,

(c) arrive at an objective conclusion/judgement following careful consideration of all the facts,

(d) provide the employee with the right of appeal and

(e) afford the employee a right to be accompanied/represented during the process.

Against this background, I considered the claims made by an on behalf of the Complainant that he was not provided with a full or proper process and that the Respondent did not comply with the principles of natural justice.

Firstly, with regard to providing the Complainant with the full details of the allegations being made against him, a series of correspondence relating to the disciplinary process was opened at the Hearing. The first item in this series of correspondence was an email from the Respondent's HR Director (HRD) to the Complainant on 29 September 2016. This correspondence advised the Complainant that he was being placed on suspension with full pay, pending investigation. The Complainant was also invited to nominate anyone he felt the Respondent should speak with as part of the investigation.

Having thoroughly reviewed the documentary evidence adduced, I find that the matter of the Complainant’s alleged misconduct revolves around a single incident, namely that the Complainant pre-populated test results and left his workstation prior to the conclusion of the test. I also find that the detail of this incident is not in dispute. Consequently, in the absence of any response from the Complainant to the invitation, set out in the HRD’s email of 29 September 2016, to nominate witnesses, I am satisfied that, on the balance of probability, the Respondent conducted as thorough an investigation into the matter as was possible in the circumstances.

The next item in the chain of correspondence opened at the Hearing was a letter dated 3 October 2016 from the Respondent’s Account Specialist (AS), who was conducting the disciplinary process, inviting the Complainant to a disciplinary hearing to be held on 6 October 2016.

This correspondence clearly sets out, inter alia, the following: (a) the allegation that on 28 September 2016 the Respondent had pre-populated test results prior to the test been completed and that this constituted a breach of both GMP and GDP processes/requirements, which he had been fully trained on and was fully aware of, (b) that the Respondent believed the allegation constituted gross misconduct, which, in the event of him being found guilty of same could have serious implications for the Complainant, including the potential termination of his employment, (d) that no decision would be made in relation to the outcome of the process until he had been given an opportunity to respond in full to the allegations being made and (e) that he had a right to be accompanied by a fellow employee of the Respondent or a Trade Union Official.

I also note that, the following day, 4 October 2016, the HRD issued further correspondence to the Complainant which included a reissuing of the documentation pertaining to the allegation being made against him.

In addition to requesting the Complainant to confirm his attendance at the meeting and whether or not he will be accompanied, the HRD also indicated that if he required more time to prepare for the hearing he should make contact with her.

In his oral evidence, the Complainant stated that, at the disciplinary hearing, the AS asked him to tell his version of events. He also indicated that the AS asked him to explain how the testing process worked.

In a letter dated 7 October 2016, which advised the Complainant of the outcome of the disciplinary process, the AS stated that, following a consideration of all matters discussed during the hearing on the previous day, she considered the Complainant's failure to follow correct procedures to have had extremely serious consequences for patient safety and, as a result, her decision was summary dismissal. This correspondence also set out the Complainant’s right to appeal the decision.

The evidence presented to the Hearing demonstrates that the Complainant exercised his right to appeal the AS’s decision. I note that the Appeal Hearing was initally set for 1 November 2016. However, as a result of an alleged misunderstanding by the Complainant as to the exact day of the Hearing, he failed to attend on 1 November 2016. A reschedule Hearing was set for 4 November 2016. The Hearing did not proceed on this date as the Complainant attempted to record the meeting without the Respondent's permission. The Hearing was eventually held on 8 November 2016 with the Respondent's Operations Manager Ireland (OMI) in the role of Appeals Officer.

By way of letter dated 24 November 2016, the OMI informed the Complainant that his appeal had failed and the decision to dismiss him on the grounds of gross misconduct was upheld. The letter of 24 November 2016 was opened at the hearing and, in addition to setting out the decision, it provides a detailed consideration of each of the Complainant's three grounds of appeal.

The final issue requiring consideration in relation to the process/procedures adopted by the Respondent, relates to the Complainant’s right to representation during the disciplinary process. The Respondent's policy/procedure in this regard is that an employee may be accompanied by "either a fellow employee or a trade union representative". The correspondence of 3 October 2016, inviting the Complainant to the disciplinary hearing, reiterates this right and, in addition, clarifies that the "fellow employee" must be from among the Respondent's direct employees.

It emerged in evidence that the Complainant may have sought to have an employee of the Respondent’s Client, as opposed to one of the Respondent's employees, attend the disciplinary meeting with him. It appears that, in addition to this being contrary to the Respondent’s policy/procedures, such a scenario was not acceptable to the Respondent's client either.

However, notwithstanding this, no evidence was presented to suggest that the Complainant, despite having ample opportunity/invitation to do so, ever raised this matter with the Respondent. I am also satisfied that the Complainant was adequately advised with regard to his rights in relation to representation.

Consequently, taking all of the above into consideration, I am satisfied that the Respondent conducted a fair and reasonable process and that the Complainant's rights in this regard were respected and upheld.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Respondent had good cause to consider the Complainant’s actions as gross misconduct and, in the circumstances, it was reasonable to consider summary dismissal as an appropriate and proportionate sanction.

I also find that in the disciplinary process conducted by the Respondent in this regard was fair and in line with both their stated Disciplinary Policy/Procedures and the requirements for natural justice.

Consequently, I find that the Complainant’s dismissal was fair and his claim in this regard is not upheld.  

Unfair Dismissal