Complainant

Respondent

Anonymised Parties

Production Team Leader

Medical Equipment Manufacturer

Representatives

Padge Reck

Adrian Twomey, Gallen Alliance Solicitors

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-00011463-001

22/05/2017

The complainant was employed as a team leader in a manufacturing facility operated by the respondent, a manufacturer of medical equipment. The complainant commenced employment with the respondent in April 2013 and employment terminated on 18 May 2017. The complainant was employed on a full-time basis and earned €665.00 per week gross. The complainant was dismissed by the respondent on the grounds of a breach of the respondent’s Dignity in the Workplace Policy.

The investigation carried out by the respondent was flawed and biased.

The complainant was accused of gross misconduct but the exact nature of this conduct was never clarified.

The evidence of a number of witnesses was untrue and this can be proved but the investigator did look into these matters.

The complainant was suspended for 36 weeks whilst the investigation was being carried out and suffered consequent stress and anxiety as a result.

As a result of a previous incident the complainant had received specific training in relation to communication, dignity, bullying and harassment at work.

Allegations of inappropriate behaviour were again made against the complainant in September 2016.

The complainant was suspended and an investigation carried out. While that investigation was in progress further allegations came to light.

The investigation found that there were a number of incidents of inappropriate behaviour on the part of the complainant.

The report was furnished to the complainant and a disciplinary hearing took place following which the decision was made to dismiss the respondent for failure to follow the company’s Dignity in the Workplace Policy.

The complainant appealed this decision but the appeal was dismissed and the decision to dismiss upheld.

Complaints were lodged by two members of the staff of the respondent following issues regarding quality control which occurred on a production line in early September 2016.   The complainant, a team leader, had queried the actions of one of those staff in rejecting some products and had stated that he would approve them himself with the implication that the staff member concerned was unable to do her job. The threat to approve products by the complainant was groundless as he did not have the necessary qualification to so do. The main reason for the complaint was the alleged inappropriate language and behaviour of the complainant during the incidents.   The Production Supervisor held what was termed as an informal meeting with the complainant regarding these matters and requested that the complainant consider apologising to the staff concerned. The complainant declined this suggestion. The Production Supervisor forwarded the notes of the meeting together with details of the alleged words used to the staff by the complainant to the HR Dept. and to the Manufacturing Supervisor.   The complainant at around the same time made a complaint about one of the staff concerned to the HR Dept.   The Manufacturing Supervisor sent a letter to the complainant inviting him to a disciplinary hearing but this was cancelled by the HR Dept. as no investigation into the allegations had taken place. A member of the HR Dept. met with the complainant on 27 September 2016, advised that an investigation into the complaints would now take place and suspended him with pay. In a letter dated 30 September 2016 the complainant was informed of three incidents that were to be the subject of the investigation and of the wish to conclude the investigation promptly. The respondent’s Engineering Manager was delegated to conduct the investigation.

A series of interviews with the persons involved in the three incidents that were outlined as being the subject of the investigation took place between the 3 – 5 October 2016.   I note that one of the staff about whom the complainant was alleged to have made inappropriate remarks did not herself hear these remarks but was told about them shortly afterwards by one of the other interviewees. On 17 October 2016 the HR Dept. received a phone call from a member of staff who had left the respondent’s employment without notice on 1 September after just over 3 months’ service and who, until then, had not responded to the various efforts made to contact her. The essence of the call was that the actions of the complainant, who had been her team leader, had been the cause of her leaving. The complainant was informed by letter on 28 October that a further allegation of inappropriate behaviour had been received and that this would be included in the overall investigation. He was invited to an investigatory meeting to take place on 7 November. The complainant, who by this time had received the notes of the earlier interviews, then lodged complaints against the Manufacturing Supervisor and two of the interviewees. The investigator undertook to investigate all issues raised by the complainant as part of his investigation. The complainant remained the only employee on paid suspension.

The investigator finished his report on 21 April 2017 having held 27 meetings with 22 witnesses.   In his overall conclusion the investigator stated that the complainant appeared to have engaged in behaviour that appeared to be contrary to the respondent’s Dignity at Work Policy.   One of the complainant’s counter complaints was upheld, in that a member of staff was found to have spoken inappropriately to the complainant.

The complainant received a copy of the report and was subsequently requested to attend a disciplinary hearing to be conducted by the respondent’s Research and Development Manager. He was advised that he could be represented by a colleague or other appropriate person.   At the disciplinary hearing on 8 May 2017 the complainant was unaccompanied and stated that this was because he could not have a union rep or solicitor onsite. (At the adjudication hearing the R & D Manager said that there would have been no issue with the attendance of a union rep.)   The complainant chose to read a statement which he said was from his solicitor and stated that he would not make any further comments on the advice of his solicitor. This statement complained about the fact that the investigation manager had not acceded to requests from the complainant to view CCTV footage on the grounds that the tapes were only preserved for 30 days. Objections were also raised in regard to many of the conclusions contained in the report. On 18 May 2017 the R & D Manager wrote to the complainant and in that letter referred to having considered the points raised at the disciplinary hearing and went on to state:

“I have decided that your conduct in relation to your failure to abide by the company’s Dignity in the Workplace Policy is unacceptable and constitutes gross misconduct. As such I have determined that the appropriate sanction in line with our disciplinary procedure is dismissal with immediate effect.”

The complainant was advised of his right of appeal and lodged an appeal the following day. The appeal was heard on 31 May 2017 by the Director of Operations. The complainant was again unaccompanied at this hearing. The issue of the length of time taken by the investigation was amongst the issues raised by the complainant. By letter dated 7 June 2017 the Director upheld the decision to dismiss. Reference was made to the length of time taken by the investigation and whilst the Director acknowledged that it was not desirable that investigations would take such a length of time she went on to state that “it was appropriate that the investigation was elongated in order to ensure that all relevant witnesses were interviewed and all appropriate evidence was considered.”

There are a number of issues which arise from the above process. I note that the Production Supervisor, upon receipt of the complaints, held what was termed as an informal meeting with the complainant.   There is an option to utilise an informal procedure contained in the respondent’s Dignity in the Workplace Policy.   This option is open to the person or persons who initiated the grievance. In this case it appears to have been initiated by the Supervisor who afterwards completed written reports and sent them to the HR Dept.   It appears that in fact the Supervisor had carried out an investigation as he had also interviewed the staff members who had lodged grievances against the complainant. There is a problem in utilising the contents of an informal meeting, of which an employee has little notice and no option of representation, as evidence against that employee.

The next issue concerns the length of time the complainant remained on paid suspension whilst the investigatory / disciplinary process was in progress. It is an important principle of any grievance procedure that an investigation should be focused and completed as quickly as possible. The respondent’s policy contains such a commitment. While it is accepted that a complex investigation with numerous witnesses can and should take time there is a danger that the perception will arise that a long investigation is an excuse for a trawling exercise intent on finding issues detrimental to the subject of the investigation. The fact that an employee remains on suspension for such a length of time can only lead to gossip and speculation to the detriment of the employee concerned.

The complainant was suspended on 27 September 2016 and dismissed on 18 May 2017, a period of almost 8 months. Most of this time was taken up by the investigation which concluded on 21 April 2017. All the staff concerned with the initial complaints, where a dispute about quality control gave rise to issues regarding the complainant’s language and attitude, had been interviewed by 5 October 2016, with the exception of the complainant himself. I note that two of the interviewees stated that it was the first occasion that they had had an issue with the complainant. There the matter rested until 17 October 2016 when a former employee, unconnected with the events under investigation, reportedly contacted the respondent’s HR Dept. to lodge a grievance against the complainant alleging that his behaviour was the cause of her walking off the job without notice more than 6 weeks previously. This person had spent 14 weeks in the employment of the respondent being absent for 3 weeks of those on sick leave. It was decided to include these allegations in the ongoing investigation. This in turn led to other issues being investigated including a possible assault allegation. It was also decided to investigate the allegations made by the complainant against a number of staff. At this stage I believe that the investigation lost focus. As a result, the investigator continued interviewing people and the complainant remained on suspension for a period of months.

In April 2017 a report was produced which distilled all of the above into 12 alleged incidents.   Of these, 3 related to the original complaints, another 5 arose from the ex-employee’s complaints, 3 were complaints made by the complainant and one related to evidence given by the Production Supervisor. As stated above the investigator concluded that the appeared to have engaged in behaviour that appeared to be contrary to the Dignity at Work policy.

The disciplinary manager decided that this behaviour constituted gross misconduct and further decided that the only appropriate sanction was dismissal. The respondent drew attention to the fact that the complainant had been the subject of a previous investigation into alleged inappropriate behaviour in October 2015 and, as a result, had been placed on a mentoring / training programme in relation to that behaviour. That investigation concluded that there was a high degree of probability that the complainant had spoken inappropriately to some operators.   The disciplinary manager dealing with that issue concluded that no disciplinary action would be taken but instead opted for a course of mentoring / training. The issue that arises, therefore, is the application of the disciplinary policy which contains a standard 4 step procedure from verbal warning to dismissal. In this case there was a jump from a decision not to invoke even the Stage 1 procedure (Verbal Warning) up to the application of the Stage 4 (Dismissal) level.

Section 6(1) of the Unfair Dismissals Act,1977, states:

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 decision.

Section 6(7) of the Act states:

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…

I note that there was no evidence as to what disciplinary sanction, if any, was applied to the member of staff that the investigation found not to have followed manufacturing procedures.

In summary therefore, in examining the procedures leading to the dismissal of the complainant I have concerns in relation to the following issues:-

the use of the contents of what was termed an informal meeting as the basis for evidence against the complainant,

the elongated investigation which diverted from its original brief and which, as a result, appeared to be looking for evidence detrimental to the complainant,

the proportionality of the decision to dismiss particularly in the light of application of the respondent’s Disciplinary Procedure for similar behaviour on the part of the complainant on a previous occasion.

The respondent’s representative put forward a number of legal precedents in support of their position and among the references was that of Foley v Post Office (2000) ICR1283. The judge in that case said:

“The employer, not the tribunal, is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

Applying those principles to the instant case I cannot accept that the investigation, as it was conducted, was reasonable and I cannot find that the decision to dismiss, having regard to all the circumstances, was a reasonable decision.   I therefore find that the complainant was unfairly dismissed by the respondent.

Section 7(2) of the Act states:

Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to –

(a)    The extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b)    The extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee…

I do believe and indeed it was accepted at the hearing that some of the language used by the complainant was inappropriate and that his behaviour at times caused problems.   The investigation report contained statements from a number of employees regarding examples of unacceptable behaviour or language on the part of the complainant, in particular remarks that reflected negatively on the mental ability of other employees.   At the time of the issue of quality control on the production line the complainant was interfering in a process that had nothing to do with him and which was a vital factor in the production of medical equipment. The complainant, as stated above, had been placed on a mentoring programme dealing with, amongst other matters, dignity in the workplace, harassment awareness and communication skills. It is not therefore a case where the complainant could have been unaware that his behaviour required improvement and that he should exercise care in how he addressed staff. I therefore find that the actions of the complainant contributed to his dismissal.

Complaint No. CA-00011463:

For the reasons stated above I find that the complainant was unfairly dismissed under the provisions of the Unfair Dismissals Acts, 1977 – 2015. The complainant has opted for compensation as the means of redress.   I also find, however, that the actions of the complainant contributed significantly to the decision to dismiss.   Accordingly, I order the respondent to pay to the complainant the sum of €12,500.00 as compensation in this regard.