ADJ-00029594

Complainant

Respondent

Parties

Finton  O’Brien

Abbott Ireland - Irish Branch Abbott Vascular

Representatives

 M.M. Halley & Son, Solicitors-instructing Mark Rogers BL

 Matheson Solicitors instructing Brian Karney BL

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-00039556-001

02/09/2020

The complaint is one of unfair dismissal. The fact of dismissal is not denied. 

Mr O’Brien was employed by Abbott Ireland as a maintenance technician from November 2011 until the expiry of his notice of dismissal, notice of which was given to him on 10 March 2020. 

Conditions of employment at the time of dismissal consisted of basic gross pay of €32,000, bonus, sick pay and pension schemes. At the time of the hearing, the Complainant had obtained alternative employment because of which compensation was sought by him by way of redress. Extensive and precise submissions were provided to the hearing by the parties supported by oral submissions by their representatives. Direct evidence was provided on behalf of the Respondent by Ms Slattery and Mr Meagher who respectively decided on the dismissal and the appeal against the decision to dismiss. 

Mr O’Brien gave evidence on his own behalf. All witnesses were opened to cross-examination and clarification. 

The generic terms of Complainant and Respondent and Witness are used in the remainder of the text. 

The Respondent is a global healthcare business whose Vascular Division in Clonmel specialises in the manufacture of lifesaving medicinal products to treat heart disease and vascular disease. The nature of the manufactured goods and the significance of the work performed by the Complainant was repeatedly referenced by the Respondent in the case as contributing to decisions made to discipline and later dismiss the Complainant. The Respondent operates a disciplinary policy which they submitted underpinned each stage of the disciplinary action involving the Complainant up to and including dismissal. At all times the issues with the Complainant were performance related.

On 15 June 2018 following a disciplinary process, the Complainant received a verbal warning for a procedural deviation from an equipment maintenance procedure. That warning had expired at the time that the later disciplinary process commenced, and the Respondent stated was not taken into account in the decision to provide the Complainant with a final written warning. Nonetheless, the Respondent submitted that the verbal warning “is important in the context of the background to the employment relationship with the Respondent and to explain that in the leadup to the first investigation the Complainant had been made aware that improvements in his performance were expected and which had to be sustained.” A named supervisor LD had spoken to the Complainant on a number of occasions about issues regarding his quality performance, his failure to adhere to procedures and, more specifically, around the need for the Complainant to print preventative maintenance procedure documents. It was said that the supervisor LD had been working with him to help him improve in these areas. 

On 8 May 2019 the Complainant was issued with a final written warning by the Group Lead with the Respondent. This warning was issued in respect of breaches of procedures and processes which the Complainant had been required to comply with in the course of his role as a maintenance technician. That warning was the culmination of a formal disciplinary hearing which had been conducted in relation to eight allegations that had been made regarding the Complainant. There were recurring quality issues arising from poor behaviour. “This included the carrying out of his maintenance duties to substandard level driven by either partial completion or a lack of understanding of the relevant procedures and processes.” The Respondent stated that the decision to impose a final written warning in 2019 was due to there being insufficient evidence to suggest that his failures were deliberate (in which case a more severe sanction would have been warranted). The Respondent set out in detail the disciplinary process which was followed leading to the final written warning. That investigation was set up initially to examine an allegation regarding the conduct of the Complainant on 31 January 2019 and was later expanded to cover a number of other specific performance issues. Ultimately, the incidents of poor or underperformance considered in that investigation and comprehended in part at least, by that final written warning dated back as far as 8 January 2018. As part of that final written warning, it was made clear to the Complainant that his performance at work was expected to improve. He was reminded of key features of his responsibilities including the significance of the product, i.e., lifesaving medical devices, and the imperative that procedures were followed strictly at all times without deviation from the written procedures and that time spent performing those procedures would align with the length of time detailed for them. Further, the Complainant was informed that if any clarification was needed of those matters, he could contact his supervisor (LD). The decision on the final warning was not appealed.

The Complainant was placed on a performance improvement plan (PIP) from 26 August 2019. The Respondent submitted that the purpose of the PIP “is to provide a structured approach to managing the performance of an employee who has a record of not meeting the expectations of their position.” LD was the supervisor for the PIP. A PIP typically lasts 12 weeks in duration and a subsequent performance improvement communication letter dated 23 October 2019 was issued to the Complainant. Supports were provided to the Complainant in the form of transferring him to day work to assist in the Supervisor being available and spending time with him at meetings, a reduced workload and the assistance of another employee. 

Subsequently, there followed what was described as the second disciplinary process. That process was initiated because of a concern that on 12 and 14 November 2019, the Complainant had completed two preventative maintenance tasks on balloon fold machines without following a required step, the replacement of a disc gasket as set out in the relevant procedures and for which the Complainant had received training on 29 March 2019. The matter was first discussed with him by his supervisor LD and the Complainant’s response was that he had decided that the disc gaskets were in good condition and there was no need to replace them. However, follow up work orders were completed by an independent senior technician to replace the gaskets on both assets. Gasket damage was found on both assets. The supervisor returned to the conversation with the Complainant and there was also a meeting with the Quality Manager regarding the potential quality and compliance implications of him not carrying out the necessary process step. During one conversation with LD there was a question as to whether the Complainant had checked to see if the gaskets were in stock. 

There was a meeting on 4 December 2019 with a Mr TOC in advance of which the Complainant was informed of alleged breach of various listed procedures relating to 12 and 14 November 2019. There was a further meeting with the Complainant on 20 January 2020 at which pictures of the gaskets on the two balloon fold machines concerned were put to the Complainant for comment. At that meeting the Complainant acknowledged he had not complied with the required Company processes and procedures and acknowledged the importance from a safety perspective of compliance with those procedures. It was submitted that he acknowledged that he had examined only the head of the gaskets before deciding they did not need to be replaced. At that meeting he stated there were “so many procedures and documents to train” that he could not be expected to remember them all. 

TOC concluded that a disciplinary hearing was warranted on grounds of a breach of Company procedures related to four specific documents/procedures. TOC had prepared a confidential investigation report the conclusion of which was notified to the Complainant on 23 January 2020. 

In accordance with the disciplinary policy an independent disciplinary hearing was held with the Complainant conducted by Maureen Slattery, Quality Manager with the Respondent. She met separately with LD and the Complainant and had the benefit of the confidential investigation report prepared by TOC. At his meeting on 19 February 2020 the Complainant acknowledged that he had “completed maintenance operations on 12 and 14 November 2019 without following the correct procedures and that he was aware of the importance for the Respondent of following procedures”. A meeting was scheduled for 5 March 2020 which the Complainant was unable to attend. That meeting was rearranged for 10 March 2020 at which point Ms Slattery informed him of his dismissal which was confirmed to him by letter on the same day. 

The Respondent had taken into account the final written warning and stated that the breaches by him of the Company procedures, which were the subject of the disciplinary hearing were serious and constituted gross misconduct. “It was also determined that those breaches had led to an irretrievable breakdown in the bond of trust and confidence between the Complainant and the Respondent.” The Complainant was advised of his right to appeal which he exercised, and which took place on 27 April by way of a meeting with LD and with the Complainant by telephone on 29 April 2020 (with his consent). By way of letter on 12 May 2020 the Complainant was informed that his grounds of appeal had been considered including the representations made by him on 29 April 2020 noting that the grounds submitted were that he was being “targeted” by the Respondent. It was the conclusion of the appeal hearer that the disciplinary process followed was fair and that the decision to dismiss was appropriate. The decision to dismiss the Complainant was upheld. 

Legal principles and applicable submissions 

The Respondent submitted that under section 6(4)(b) of the Unfair Dismissals Act 1977, a dismissal will not be unfair if it results wholly or mainly from the conduct of the employee and under section 6(6) of the Act it shall be for the employer to demonstrate that the dismissal resulted from that ground. Under section 6(7) of the Act an adjudication officer when considering whether a dismissal is fair or unfair, regard may be had to the reasonableness or otherwise of the conduct of the employer in relation to the dismissal and the extent to which the employer complied with the requirements contained in section 14 relating to the notification to employees of its procedures for dismissal from employment. Reference was made to several precedents: Hennessy v Reid and Wright Shop Ltd (UD192/1978); Ayanlowo v IRC [1975] I.R.L.R. 253; Vita Cortex Ltd v Dourellan (UD1031/1992); Ikoro v Woodies DIY Ltd (UDD1739) (3 August 2017); Kerr v Tower Hotel Group Ltd (UD11/1977); Molloy v Wincanton Ireland Ltd [2013] 24 E.L.R. 286; and An Employee v An Employer ADJ0000381 (12 April 2017). The foregoing references and the arguments related to these precedents related to the procedures followed by the various employers which in summary the Respondent is submitting were full and fair. 

It was submitted that in any event a failure to observe procedures will not render a dismissal automatically unfair and Vokes Ltd v Beer [1973] I.R.L.R. 363 was cited in this regard. The Respondent submitted that the disciplinary procedures were carried out in full; it was made known at each stage that the Claimant might ultimately face dismissal; the Complainant had been fully trained and knew what was expected of him; he was warned of the need to improve his performance; assistance to improve his performance was provided to him following the final written warning including placing him on a performance improvement plan; the procedures and their application towards the Complainant are consistent with S.I. No. 146 of 2000. 

Regarding the sanction, the Respondent set out legal arguments regarding the role of the adjudicator and the test which has become known as the “band of reasonable responses” test to be applied when assessing the fairness of a decision to dismiss. Case law of British Leyland UK Ltd v Swift [1981] I.R.L.R. 91; Union of Construction and Allied Trades and Technicians v Brain [1981] I.R.L.R. 224; McGee v Beaumont Hospital (UD136/1984); Kelly v CIE (11 February 1985); Bank of Ireland v Reilly [2015] IEHC 241; and Abdullah v Tesco Ireland Plc (UD1034/2014) Hennessy v Reid and Wright Shop Ltd (UD192/178) [Hennessy v Reid and Wright Shop Ltd (UD192/178) was cited on this aspect. The Respondent covered the justification of a dismissal for gross misconduct stating that such a ground must be proportionate and citing Frizelle v New Ross Credit Union Ltd (unreported, High Court, Flood J., 30 July 1997). Finally, the Respondent submitted that a dismissal for conduct may arise from a collapse in the relationship of mutual trust and confidence which exists between employee and employer which must be considered objectively referring to Berber v Dunnes Stores Ltd [2009] 20 E.L.R. 61. In this regard reference was made to the final warning of 8 May 2019 where it was stated: “Abbott Vascular manufactures lifesaving medical devices and our employees are required to always remain compliant; non-compliance could result in products not fit for purpose. You are, at all times, required to comply with all aspects of Company procedures whilst carrying out your role.” In this regard it was submitted that devices manufactured by the Respondent could present risks to patients by exposing them to the possibility of angina or more seriously having to undergo surgical intervention and lifelong impairment. 

The decision to dismiss the Complainant was taken in accordance with the Respondent’s disciplinary policy where there was no further improvement in his performance after his final warning where his actions [in November 2019] were considered as an instance of gross misconduct and where the relationship of mutual trust and confidence had broken down between the parties to such an extent that the Claimant had to be dismissed. 

Witness A  

Witness A was the decision maker on the dismissal. A summary of evidence was: 

The verbal warning was not a factor in her decision - she is not sure if she was even aware of that warning and it did not come into her mind. 

Asked if she alone had made the decision or was contacted by HR at any stage, the witness said it was her decision alone and she was not or did not consult with others about the decision. 

She knew the Complainant to see around the place and although she did not know him personally, she was very conscious of how important the decision would be from his perspective especially given his length of service which was much the same as her own. 

She had reviewed the matter in detail and considered her decision after the meeting with the Complainant. 

From her review and the meetings with the Complainant and LD she was satisfied that the Complainant had received adequate support at the time [following his final written warning] in the form of supervisory support available to him, a reduced workload and clear advice that procedural compliance was a must. 

In arriving at her decision to use the terms gross misconduct and a lack of trust she took account of the potential risk factors from the failures of the Complainant, and she considered that as he was well aware of the correct procedures that he chose to do something different, so he knew, and it was a choice. This was, she said ‘almost sabotage’-a wilful failure to follow procedures. 

The Complainant spoke at the disciplinary hearing about his own stress levels, that he had never encountered anything like it before and that he had not received support from his supervisor. On balance she decided that the complaint about the supervision was not the case. 

Asked if she considered options other than dismissal, she replied, no. The Complainant had apologised and said it would not happen again. However, she felt that he had adequate supports, he understood the procedures but had chosen to do something else and she felt how could she trust him not to behave in the same way again, i.e., wilfully not to follow procedures. 

Witness B

Witness B was the decision maker at the appeal hearing. A summary of his evidence was: 

Witness B confirmed he had no formal qualifications in HR. A named HR manager attended the appeal hearing as a support. 

In his decision on the appeal, he focused on the grounds presented by the Complainant. [For ease of reference these are summarised from the note of the appeal hearing as follows]: 

The Complainant explained that he felt the termination was unfair and unjust; he had been under pressure for the past two years and that he was targeted. He had appealed a previous performance review and after that time it was one thing after another. When LD became his supervisor, it got very serious, and his confidence and stress levels went through the roof. He asked for help from HR and was referred back to the supervisor. One manager did provide some help, but the Complainant had to seek external help in the form of a solicitor who sent several letters but got no response. 

He said a lot of small things accumulated. He had a senior technician supporting him, but that person refused to do retraining with him and he was left on his own with an entry level technician. He disputes that support was made available to him - he had one hour during a PIP review with LD. When he asked for help in one situation, he was told he was walking away from the problem in a PIP review. It was at that point he had to go to a manager for help. Regarding an issue with Blue point equipment he was on his own, seriously under pressure and he said he did make a mistake - as far as he could remember. That warning was for six months but was brought up again. He stated that the PIP reviews were a joke. LD was bringing up stuff from six months ago, details focused on how he was writing things down and things were added on whenever LD wanted to. At the appeal he said that there was an unreasonable degree of pressure, and the constant negative review of PIP did not help. The Complainant referred to an issue around September 2019 which was dropped (completely unrelated to performance or the disciplinary decision) and that impacted him at the time and things went downhill after that. He felt that the level of detail that went into the final written warning it was targeting him, and that LD could cover himself with procedures.] 

The witness said that he interviewed LD and was satisfied that there was support provided to the Complainant to take pressure off him. He concluded there were issues previously in that when LD came in things went south, that the Complainant could not step change in line with the requirements, but he concluded that the contention there was no support provided was not the case, that LD had spent a considerable part of his time with the Complainant, that the Complainant’s work was reduced, and that he was provided with the support of another technician. 

Following the taking of evidence the Respondent representatives submitted their case as one where the procedures were unimpeachable. The decision to dismiss was within the bounds of reasonable responses based on the admissions made by the Complainant. 

Any argument that the disciplinary action based on the final warning could not proceed because of the terms of the performance improvement plan was emphatically rejected. 

Finally, in the event of any decision in favour of the Complainant compensation was the preferred remedy. 

The Complainant began working for the Respondent’s predecessor in November 2001 and when the Respondent took over the business of the predecessor the Complainant was appointed to the role of maintenance technician which he has held since that time. He was described as dedicated and hardworking having obtained an honours degree in manufacturing engineering. His resolution of safety issues was but one example of his hard work and application of his skills towards the optimisation of the Respondent’s working practices. He made himself available for overtime and made himself contactable at short notice for any issue that might need to be resolved by other maintenance technicians. The Complainant generally enjoyed his work, finding it stimulating and challenging. However, from in or about 2018 onwards he was subject to repeated disciplinary procedures purportedly arising out of his work performance. The Complainant believes however that the matters alleged regarding his work performance were motivated by ill-will towards him on the Respondent’s part after he challenged and appealed an unsatisfactory performance appraisal for the year 2017. The Complainant received an Appraisal result of “Partial Achievement of Expectations” and had appealed this appraisal, however his appeal was unsuccessful. 

Procedural arguments  

The Respondent states in its written submissions that a verbal warning administered to the Complainantin 2018 was not taken into account when deciding to issue the final written warning of May 2019 but then goes on to state that the verbal warning was relevant in that it provided background in the context of further sanction being administered in the form of the final written warning. The verbal warning had expired and should have played no part in any further disciplinary steps. It was submitted that the Respondent seeks to “have it both ways” - wishing to be seen to abide by the terms of its own disciplinary procedure while at the same time the Respondent departs from that procedure in the case of the Complainant. 

Reference was made to Evode Industrial Ltd v Hearst and O’Shea where the dismissal was deemed unfair as the disciplinary process did not make clear that regard could be had to the warnings in question in any subsequent disciplinary procedure. It was submitted that the likelihood is that account was taken of a previous verbal warning, and this was itself substantively unfair. This departure from the disciplinary procedure tends to support the Complainant’s view that the Respondent was not treating him fairly and was intent on removing him from his employment. 

Obligation on an employer to justify a dismissal 

Reference was made to Cox, Corbett & Ryanin Employment Law in Ireland which refers to the reasonable test and the requirement to have a proper investigation. It was submitted that the Complainant was placed on a PIP on 23 October 2019. The assertion by the Respondent that the Complainant was placed on a PIP from August 2019 was not accepted. In August 2019 the Complainant was directed by the Respondent to undertake an online course in basic verbal comprehension however this was not a PIP. The PIP was stated by the Respondent to be for a “block” of 12 weeks which would have concluded on 29 January 2020. However, the Respondent then decided to take issue with work performance arising some three weeks into the PIP process, i.e., less than one quarter into the 12-week block of PIP. Having made the decision that the Complainant should be placed on a PIP in order to improve his performance, the Respondent then decided to commence a disciplinary procedure in respect of performance issues rather than address performance issues through the PIP which was then in train. It was submitted that it is entirely unfair to designate an employee as potentially benefiting from a performance improvement plan and then to dismiss that employee for performance issues which arose during a plan which was itself put in place to address performance issues. If the Respondent genuinely wanted to facilitate the Complainant in improving his performance, it would have seen the PIP through to a conclusion. That they did not do so suggests the Respondent did not seriously intend for the PIP to be effective but rather intended the PIP as a means to take issue with the Complainant’s performance of his employment duties. 

The Complainant went on to refer to the detail of the terms and scope of PIP which states: 

“Should you fail to achieve the objectives as outlined in the PIP during the PIP period we may progress you in line with the Company disciplinary policy at the end of this 12-week period”. 

The policy dealing with performance improvement plans states that: 

“If, at the end of the block, the employee has not met the expectations of the PIP, then the manager can apply disciplinary action starting at the verbal warning stage, following the steps of the disciplinary policy. 

If a verbal warning is given, the employee will be given a further PIP block. This block is typically of 6 weeks duration. If at the end of that block the employee has not met expectations of the PIP, then the manager can apply disciplinary action at the written warning stage, following the disciplinary policy. 

Two further similar potential stages apply, each of typically 6 weeks duration”. 

It was submitted on behalf of the Complainant that the PIP needs to be carried out to a conclusion and not interrupted midstream by the imposition of a new disciplinary procedure arising out of the very performance issues which the PIP was intended to assist with. Equally, it is clear that if genuine concerns remain around performance at the end of the initial 12-week block of PIP, then the means of dealing with any concern is to administer a verbal warning and/or to commence a further block of PIP. In summary, it was submitted that the Respondent had departed from the terms of its own policies [PIP] and that this was caused by a desire to get rid of and/or make an example of the Complainant. The PIP does not provide for taking account of pre-existing disciplinary measures during the course of the improvement plan and nor does it provide for the ad hoc mixing of the PIP with the disciplinary procedure. 

Further arguments

It was submitted on behalf of the Complainant that the proportion or percentage of his work which was at issue [referring to those leading to the final written warning in particular] was very small compared to the Complainant’s overall workload of tasks. It is clear from the detail provided by the Respondent that there was a strong tendency towards overstatement on the part of the Respondent in relation to the Complainant’s alleged deficiencies in performance. Furthermore, circumstances where such a vast array of allegations are levelled at an employee though only a small number of allegations are proceeded with cannot be conducive to an employee calmly going about their work when any and every step they take can be resurrected a long time later to form part of a broad host of allegations against the employee. 

Purported gross misconduct

The Complainant contested the description of his conduct as grounds for dismissal as constituting gross misconduct. Such a term tends to be reserved for the most serious of disciplinary violations such as behaviour in the workplace which would equate to criminal conduct or conduct which could never be acceptable and which would justify immediate ending of the employment relationship. It is submitted on behalf of the Complainant that the matters relied upon in this regard come nowhere close to actual gross misconduct but rather it appears that gross misconduct has been included as a “catchall” in an attempt to obviate or excuse the Respondent’s clear failures to abide by its own procedures. It is submitted that a dismissal on the basis of gross misconduct must of necessity and its natural and objective meaning be reserved for the most serious cases of misconduct and unacceptable behaviour which did not occur in this case. Reference is made to Redmond on Dismissal Law, 3rd Edition, 2017. There was no behaviour to justify the allegation of gross misconduct in this case. The matters alleged to constitute gross misconduct do not even fall within the Respondent’s own definition of gross misconduct where an example of gross misconduct is given as “wilful failure to comply with Company procedures”. Nowhere has the Respondent applied itself to establishing the standard required to make out a wilful failure nor has it sought to establish whether the Complainant’s performance ever amounted to a wilful failure to comply with the Respondent’s procedures. The Respondent did establish at earlier instances that any shortfall in the Complainant’s performance was not deliberate. However, at the point when the Respondent chose to make the damning determination that the Complainant had been guilty of alleged gross misconduct the Respondent did not even carry out an assessment of whether or not the matters on which it relied fell within its own definitions as set out in its disciplinary policy. 

The Respondent relies on a purported breakdown of trust in the employment relationship (as set out in the letter of dismissal). This is being put forward as a catchall position to save the Respondent from its obvious and numerous departures from its own procedures. It appears the Respondent did not want the Complainant to work for it any longer and relies on this purported ground in order to obviate its departure from its own standards and procedures. It must be accepted in any employment context that mistakes/human error/oversight can and will happen. It is not reasonable for an employer to expect that mistakes and errors will not occur. Referring to the Complainant’s application to third level study of bringing work procedure documents home with him and of being a conscientious employee, the representative stated his efforts to satisfy the Respondent’s standards were cut short by the Respondent’s decision to end his employment for matters arising in the early part of the performance improvement plan.

Legal Precedents: An Executive Chairman -v- A Charity - ADJ00005246 was cited in support of these arguments. 

Regarding the product manufactured by the Respondent, it is not reasonable to demand the absence of mistakes and errors. While it is accepted that the Respondent makes lifesaving medical devices it is not detailed in the Respondent’s written submissions that the Respondent operates a large quality assurance section at the facility in question, whose task it is to inspect items produced in the various production lines machines. 

In conclusion it is submitted that the Complainant was unfairly dismissed by the Respondent and that the dismissal was unfair both substantively and procedurally in circumstances where the Respondent departed from its own PIP in respect of the Complainant; departed from its own PIP policy document; dismissed the Complainant for performance related issues arising at the outset of a PIP; dismissed the Complainant for purported gross misconduct where such a characterisation was unwarranted; and failed to inquire into, or to establish, whether any “wilful” conduct of the part of the Complainant arose on the circumstances.

Summary of Complainant’s evidence 

Put to him that the Respondent was saying that his actions (in November 2019) were wilful and deliberate which he knew to be wrong, the Complainant replied that he had made mistakes, that he never intended to cause harm and it was a lapse of judgment on his part. Put to him that he had received all the supports and assistance as described by the Respondent, he said that he did not get supports, that he had to go to HR, to his solicitor, to a counsellor through the EAP. He did accept that he had a reduced workload and regular meetings. Asked why he had not signed the PIP form given to him on 23 October 2019 he said he had issues with it, that it would be used as a record and means to get rid of him. The whole situation was very stressful. The Respondent knew that he was attending counselling through the EAP. He was not supposed to be on the particular work in November 2019 but then they were struggling or short and he was put on that work anyway.

The Complainant gave a detailed account of his earnings and efforts to obtain work which were only successful after 17 months. Asked about correspondence from his solicitor on his behalf where he had referred to several letters, it was clarified that the first was sent in March 2019 and the second was on 8 October 2019.

Asked why he did not appeal the written warning, he replied that the whole thing had dragged on for months and he just wanted to move on at that stage. It was his understanding that he was dismissed for gross misconduct for making mistakes, but he did not do anything deliberately as was said. When he examined the gasket in November 2019 it seemed fine to him.

Following the taking of evidence the Complainant representative summarised his evidence relying on very comprehensive submissions saying that the kernel of the question is whether it is accepted that this was a case of wilful failure on the part of the Complainant which it is submitted was not the case. At no stage in the procedure was it put to him or explained to him that this charge of wilful failure was being considered. The term “sabotage” was used at this hearing and whereas the Complainant was candid in admitting his mistakes there was no wilful failure on his part amounting to a charge of sabotage, and after 20 years of service dismissal was not justified in the circumstances. If it was decided to find in favour of the Complainant compensation was sought by way of redress given that Alternative work had been obtained. The Complainant is working with a contractor on a site but hopes to obtain employment with the contracting company. 

The extent of the summary of the submissions and evidence reflects what was a fairly lengthy hearing involving detailed submissions, documentation and evidence. All the evidence, submissions and documents were reviewed before arriving at findings and a decision.

Procedures followed by the Respondent

The extent of case law provided on behalf of the Respondent and general familiarity with Decisions in cases of Unfair Dismissal over many decades support the observation that the procedures followed by the employer in any situation which results in the termination of the employment relationship are subject to the closest scrutiny by ‘third parties’. Headlines are made from financial awards to dismissed employees arising from might seem fully justifiable decisions on the part of the employer. However, the concept of natural justice remains paramount and because the employer is the decision maker and has the greater power and usually resources, how they exercised their right to terminate an employment relationship fairly is what leads to such close scrutiny of how the employer conducted their own procedures. And, in most cases, they are their own procedures often as in this case backed up by S.I.146-cited in the policy and by their own representative. Adhering to accepted procedures to the extent that they can be regarded as ‘unimpeachable’ as submitted by the Respondents representative is not an easy task and it must be a process which is careful, considered and clear to the point of being unambiguous. The latter is particularly the case when the employee, as in this case, had no hands-on support person or representative to guide him through the process. In these circumstances, the employee must trust the employer to get it right in terms of the procedures applied in their case.

In terms of the procedures followed in this case the first point to make is that as the final written warning was not appealed by choice of the Complainant, it stands and is not open to consideration in arriving at a decision in the claim of unfair dismissal.

The second point to be addressed is the reliance placed by the Complainant on the contradiction between the terms of the PIP with its own in-built procedure and the decision of the Respondent o move outside of the procedure set out in the PIP, falling back instead on the terms of the final written warning. It is noted that the final written warning made no mention of a PIP and where exactly that process came from is unclear. There is a difference between the parties as to whether there was one PIP or two-with no document signed by either party to cover the period August to October for which period the Complainant says he was on an on-line comprehension course and not a PIP. In relation to period November onwards-the Complainant refused to sign the PIP document. His evidence at the hearing suggests that he regarded the PIP process and document as part of a means of undermining him and using procedures to effectively get rid of him. He did not appeal the process and so the process continued. In terms of this case it is difficult to see how the Complainant can rely on a PIP procedure in his defence if he refused to sign the terms and generally was disparaging of that process-declaring it a ‘joke’. At no point did he make this observation in the investigation or disciplinary stages and it is difficult to see how he could-given his attitude towards the entire PIP process. For these reasons and as a general principle, it is not accepted, that an employer could be prevented from moving to a disciplinary process because of the existence of a PIP. That said, if the employer is going to ignore the provisions of the PIP and not allow it to run its course (in this case twelve weeks) they would need substantial grounds to do so even if the Complainant had not signed the document.

Regarding the procedures followed by the Respondent from November 2019 until March 2020 which led to the dismissal, these were text book in terms of the conduct of the investigation and the separation of the investigation and disciplinary processes. All stages were conducted carefully and with due consideration. The final written warning could not have been clearer in terms of what was required of the Complainant. Supports were provided to him during the period in question, even if he appears to have actually resented some of the supports and a check was done to ensure that he and received training on the work which was the subject of the investigation.

There is however one lacuna in the procedures examined which is very significant. Stage 4 of the Company dismissal states:

‘However, dismissal will never occur before a full investigation is completed, and the employee has been afforded the opportunity to respond to the allegations.’

Section 6 of S.I 146 reinforces the obligation to set out details of the allegation:

‘The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

That details of any allegations …are put to the employee concerned’

The conclusion in this case is that, at best, the Respondent confused the investigation process and the disciplinary process in terms of putting the allegations to the Complainant. An investigation process was put in place as a fact-finding mechanism. At the end of that process on 23 January 2020, the Investigator found:

‘On the basis of all facts gathered, it appears that a disciplinary hearing is warranted’

This conclusion does not represent an allegation, nor does it tell the Complainant what charge he is facing. It was for the Respondent to frame the allegation following consideration of the investigation report and to decide what the allegation is and at what stage of the procedure.

In this case HR issued an email to the Complainant on 18 February 2020 in which it was said:

‘You are requested to attend a disciplinary hearing Wednesday 19 February …. regarding alleged concerns relating to your non compliance to (four procedures).’

There is no allegation. Although the possibility of dismissal is referenced, there is no reference to the stage of the procedure or gross misconduct or what part of the definition of gross misconduct the respondent was or would be relying on.

More than one of the definitions of gross misconduct in the Company Policy could have been applied. In effect this is what occurred-the employer decided it was both a wilful failure to comply with company procedures and a breach of trust, two possible areas of gross misconduct-after the hearing. Neither the terms wilful or sabotage or breach of trust were put to the Complainant. These were terms the hearer chose for herself-after the hearing and still did not express wilful anything in her decision where she used the collective term ’gross misconduct’ without any further elaboration. ‘Breach of trust’ is a term in gross misconduct in the Respondent Policy-but this was not the only reason for the decision to dismiss-it was a separate and additional term, and neither was that charge put to the Complainant in advance of the disciplinary hearing. These most serious terms used by the hearer stand in sharp contrast to the term ‘concerns’ expressed by HR in the notification of the disciplinary hearing. That this practice of not specifying the charge or the stage of the procedure prior to the disciplinary hearing may be attributed to confusion on the part of HR-is supported by the observation that the same practice may have applied in respect of the earlier final written warning-i.e. the stage of the procedure was not notified, and neither were there specific allegations in writing at that disciplinary stage. Or at least not in the extensive documents provided for this hearing.

The finding is that the Respondent, in failing to notify the Complainant that his was a stage 4 disciplinary hearing and most particularly the precise allegations against him which he was required to answer, was a fundamental breach of the Respondents own procedures and S.I. I46. To some these may seem points of detail-the Complainant knew well what the issues were type of thing. But they are anything but minor issues as the right to know what you are accused of goes to the heart of the principles of natural justice. The fact that this is an employer with well established procedures and considerable resources to apply to the case of one individual means that it is not unreasonable to expect that they will know and apply their own and best procedures fully and indeed to a standard which is unimpeachable.

The dismissal of the Complainant was unfair on procedural grounds for the reasons set out.

Moving onto the ‘reasonable’ test it is known, this is still a significant factor determining redress. All of the circumstances must be considered, as provided for in section 7 Act.

The Respondent has submitted that the decision of the employer is grounded in Section 6 of the Act-related to conduct. It has to be said that a performance related dismissal of an employee of almost twenty years continuous service on grounds of gross misconduct where there was no history of disciplinary procedures around attendance or other conduct, where there are performance related bonus payments and where there are high standards of operational oversight - is not a usual occurrence. What appears to have occurred is there was a step change in quality assessment of the category of work performed by the Complainant and others. In his case this began in 2017 or 18 and increased with a change of supervisor. For some reason the Complainant did not adapt to the step change and from his statements and grounds of appeal-he resented the increased oversight and instead of working with it he reacted badly and critically to the change. His decision not to appeal the written warning, his refusal to sign the PIP document, his complaints about the supervisor and his criticism of the PIP process suggest a form of fatalism rather than a proactive engagement to ensure that the issues and disciplinary process simply went away in time. In short, he blamed others and did little to help himself in the period after the final written warning.

The issues with gaskets arising from a planned maintenance in November was serious and it is accepted resulted from choices made by the Complainant. A choice not to complete the PM, a choice not to record his decision, a choice not to inform the supervisor. Each of these choices were in direct contravention of the terms of the final written warning and his knowledge of the procedures for the work. His difficulties were compounded by his changing explanations and admissions each time he was challenged, whether by the supervisor or during the investigation process. The Complainant had previously promised that a breach of procedures would not re-occur and yet it did a couple of weeks into the formal PIP process imposed by the employer.

In terms of her decision making and the reasoning, the evidence of the decision maker was clear, cogent and rational. Her conclusion that this was tantamount to sabotage or wilful conduct such as amounted to gross misconduct was not one she was entitled to arrive at without first putting that specific charge to the Complainant and in advance of the hearing-but her conclusion that she could no longer trust the Complainant was not unreasonable in all the circumstances. The Respondent has satisfied the tests required in this type of case: a progressive disciplinary stage process; providing supports to improve performance and clarity in expectations at the formal written warning stage; a full and separate investigation of the performance related issues. As a matter of principle therefore, the decision to dismiss falls within the range of reasonable responses in all the circumstances.

 However, of concern is that neither at the disciplinary or appeal stage was any or enough real consideration given to the fact that during the period in question the Complainant was attending counselling due to workplace stress. This support was known to the Employer as they provided it, but no consideration appears to have been given to the fact that workplace stress may have been a factor in what was otherwise almost inexplicable behaviour on the part of this long-standing employee. A medical report would not have been an unreasonable step especially when the hearer understood very well the implications of the decision for the Complainant.

Of further note is that the events which led to the dismissal occurred in November 2019 while the disciplinary and dismissal occurred in the following March-almost four months later. There is nothing in the submissions which suggests that the Complainant was absent for this four-month period-and if this is a correct conclusion, an up to date performance report should have been obtained. This is consistent with the decision in O Brien vs Professional Contract Cleaners Ltd UD 184/1990 where the Tribunal found that the employer should have an up to date performance assessment to hand.

In summary, while there was a significant procedural deficit, the decision to dismiss was within the range of reasonable responses based on the decision maker’s concerns regarding trust and based on the available evidence was not unreasonable. However, taking steps to obtain other reasonable evidence was merited before the decision was taken.

On the matter of his contribution to the decision of the Respondent, while noting he had no on-site adviser or representative and could not have been expected to raise or even be familiar with the type of issue explored in this decision-fundamentally the decision of the employer was attributable solely to the conduct or performance of the Complainant and his significant contribution to that decision is taken into account in deciding on redress.

Redress in the form of compensation is what was sought by both parties should it arise, and I see no reason to disagree with them that this is the appropriate form of redress in the circumstances, particularly where the Complainant has, after an extended period, managed to move on with his life and has found new employment.

The Complainants terms of employment at Abbott included a pension and sick pay scheme and basic pay of 32k plus access to a bonus in normal circumstances of 8k. He was unable to look for work immediately after the dismissal. He remained in counselling and started looking for work on 26 September 2020 and obtained work in August 2021. A spreadsheet of his efforts to find employment was provided. At the time of the hearing he was employed on a contract basis with hopes of obtaining a position with the contracting company.

Having considered all of the circumstances; allowing for the extended period of unemployment including bona fide efforts to obtain employment from September 2020; the loss of benefits including pension, sick pay, bonus and VHI in the context of the procedural and other failings together with the Complainants significant contribution to the decision of the Respondent and noting that he received his statutory entitlement to eight weeks notice pay an amount of approximately four months basic pay amounting to €10500 compensation is considered fair and reasonable.

The complaint of unfair dismissal brought by Finton O Brien against the Respondent Abbott Ireland is well founded. The Respondent is to pay the Complainant €10500 in respect of his unfair dismissal.

Conduct/performance related dismissal