ADJ-00031187

Complainant

Respondent

Parties

Paul  Dunne

Randox Teoranta

Representatives

Rory O'brien McIntyre O'Brien Solicitors

James Stewart Randox Laboratories Limited

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-00041595-001

17/12/2020

The complainant, Mr Paul Dunne, was employed by the respondent, Randox Laboratories Limited, as a research scientist.  Despite being instructed by his Line Manager not to use a particular ‘assay’ he went ahead and used it.  The complainant argues that he understood the prohibition on the use of the particular assay to relate to the verification stage and he did not use it at that stage.  He made no secret of having used the ‘assay’. The respondent’s position is that the complainant disobeyed a legitimate instruction and that the consequences for the company could have been severe.  The complainant alleges that there were procedural deficiencies in the disciplinary procedure used, particularly in relation to the failure of the Investigating Officer to meet him.  The complainant also argues that the decision to dismiss him was disproportionate.

The complainant commenced employment on 1st July 2014 and had a good work record with the employer until October 2019, when he was assigned a new line manager. The complainant was a research scientist, involved in development of existing and novel immunoassays which are tests that use antibodies to detect proteins in the body, which might indicate a particular disease.

The complainant and a colleague were developing an assay for two years under his manager and supervisor.  To choose the best antibodies the complainant had to assess many of these and decide which ones were best based on multiple scientific outputs.

The complainant had exercised a certain amount of autonomy and discretion in performing his role. He had autonomy, albeit reporting to a line manager, in selecting the best antibodies to put into this assay, which would then be locked down in verification. Immunoassay verification is a set of tests which each immunoassay must go through and comply with in order to move to the next stage of approval. When verification is entered into, the materials and antibodies for the tests must be consistent. However, in the pre-verification stage, the assay can be altered and different items introduced to help get the most out of an assay. This is the stage the complainant was at when the incident occurred giving rise to his dismissal. 

In a meeting on 29th Jan 2020 the complainant’s Line Manager, Ms Danielle Vance said the complainant should use 0.5mg CA15-3 conjugate and not 0.7 mg CA15-3 conjugate.  The complainant tested the 0.7 mg CA15-3 conjugate. On 6th February 2020, the complainant indicated to his Line Manager, of his own volition, that he had tested the 0.7 mg CA15-3 conjugate and the results seemed to be similar. Thereafter the complainant was suspended on 14th February 2020, and ultimately summarily dismissed on 22nd July 2020 arising from this issue. 

The reasons the complainant used the antibody in question, were because; they were at pre-verification stage only; he felt it was wasteful to bin it and it could potentially be used for other non-verification experiments, such as quality control, or given to other groups and; he believed he didn’t have enough stock of 0.5mg CA15-3 to make the largest batch possible, so he ran a test on 0.7 mg CA15-3 to see how it performed, and later relayed the results to his supervisor.  There was no risk to regulatory approval and the complainant did not gain personally from his conduct.  It is also of note that the tests using 0.7 mg CA15-3 conjugate were documented and disclosed by the complainant to his Line Manager. He recorded the test results and wrote on it “test only, not to be used in verification”. The experimental data was available to see.  The complainant intended to write up the experiment fully, based on the data.

The complainant had a history of difficulties with the Line Manager, who had been his manager for about 4 months before he was suspended arising from her complaint. He was subjected to a number of investigations in the short time that she had been his manager. None of them lead to a positive finding that the complainant had committed any wrongdoing.

The complainant made a formal grievance of bullying/harassment complaint against his Line Manager on the 27th February 2020. The employer never investigated this complaint but instead proceeded with the disciplinary allegation against the complainant. The employer should not have ignored the grievance complaint. It was relevant to assess it, to judge whether the Line Manager was being fair or was over-reacting. The Line Manager called for his suspension, ran the investigation to a point, and had a significant impact on its outcome, and had a significant input in the decision to dismiss. 

The dismissal was procedurally unfair. The complainant was not interviewed by the Manager who conducted the investigation, despite his requests. The complainant was suspended on 14th February 2020 before any investigation had taken place. This was extreme and normally reserved to where serious misconduct is alleged that would post a risk to the employer. It caused immense reputational damage to the complainant. It was indicative that the employer, at an early stage, treated this as a gross misconduct issue, before all facts were ascertained. The employer later sought to justify the finding of gross misconduct by relying on such things as the complainant’s approach during the investigation and disciplinary hearing, when the employer had already decided it was a gross misconduct issue before such hearings took place. 

The complainant was not allowed speak to other members of staff without permission from the HR Manager. This was unfair and hampered the complainant in the defence of his position.  The complainant raised a grievance complaint against his Line Manager which was not investigated. 

The complainant made an error of judgment. The dismissal was not within the range of responses which a reasonable employer might make. It was completely disproportionate.

The complainant was summarily dismissed for gross misconduct.

The complainant worked with Randox Teoranta as a Scientist within the Immunoassay Development division of the Research and Development Department. From 18th September 2019, the complainant reported to Danielle Vance. On 29th January 2020, the complainant was instructed by his manager, Danielle Vance, during a team meeting not to use a 0.7mg prep of CA 15-3 as each lot must be reproduced using the same prep-size of 0.5mg as part of the TMA-1 project. The claimant challenged this and was advised again by his manager that the 0.7mg prep of CA 15-3 was not to be used under any circumstances. Tumour Monitoring Array-1 (TMA-1) is categorised as a cancer assay (test) and as such falls under a higher risk category in terms of classification which makes it subject to increased scrutiny from external notified Regulatory bodies. The product's technical file will therefore be liable to extensive auditing from external notified Regulatory bodies. The utilization of this 0.7 mg preparation of CA 15-3 conjugate during product verification could have ultimately resulted in adverse regulatory findings related to this Array of cancer biomarkers and, as a result, by choosing not to follow his manager’s direct instruction the impact could have had serious consequences financially and reputationally on the business as well as on the people the assays are designed to diagnose. It was apparent to the complainant’s manager that his actions may have amounted to serious insubordination, deliberate refusal to carry out a reasonable and lawful direct instruction and a serious breach of trust and confidence in his role as a scientist.

By letter dated 14th February 2020, from Adam White HR Officer, the complainant was suspended pending investigation. The initial investigation meeting was held on 20th February 2020.  On 26th February 2020 the complainant was advised not to contact members of staff without the clearance of the HR Manager. The Investigating Officer Danielle Vance,  was subsequently changed on 5th March 2020. The new Investigating Officer had no previous involvement in the incident.

Following the investigation a disciplinary meeting was convened and the respondent concluded that the complainant’s conduct was a serious breach of their employer's policies and practices amounting to gross misconduct. The Respondent submits that the decision was within the range of reasonable response to an employer, and that the process through which they arrived at that decision was fair and lawful. The respondent has at all times adhered to the WRC Code of Practice on Grievance and Disciplinary Procedures. The investigating officer was changed at the Complainant’s request. The complainant was also afforded an opportunity to appeal the decision.

Dismissal as a fact is not in dispute in this case and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

The question to be considered by me is whether or not the Respondent acted in a reasonable manner in coming to the decision to dismiss. The test for reasonableness was set out in Noritake(Irl)Ltd v Kenna(UD 88/1983) as follows:

Did the company believe that the employee misconducted himself as alleged?

if so, did the company have reasonable grounds to sustain that belief?

if so, was the penalty of dismissal proportionate to the alleged misconduct?

From the evidence given it is clear that the focus of the respondent was on two issues; Firstly, the failure to obey a legitimate instruction and; secondly the potential consequences failure to follow that instruction could have had for the company, in particular in relation to the Regulatory body. In evidence the respondent’s position was that ‘The utilization of this 0.7 mg preparation of CA 15-3 conjugate during product verificationcould have ultimately resulted in adverse regulatory findings’

There is no doubt that the complainant did not comply with the instruction given to him by his Line Manager.  However, in his evidence he stated that he did not take the instruction as covering testing in pre-verification stage. This evidence is supported by the fact that he made no attempt to hide the fact that he had tested the product.  He also made the appropriate records relating to the test he carried out including that it was not to be used in verification.

Prior to initiating a disciplinary process the respondent appointed an Investigator.  Initially the Investigator was the same person who was making the allegations against the complainant.  The respondent quickly realised the inappropriateness of this appointment and replaced that Line Manager with a new investigator, Mr Damien McAleer.  The new Investigator relied on some of the material already collected without starting the process afresh.  It is clear from evidence both written and verbal presented by the investigator that the investigator was not aware of the distinction being relied upon by the complaint, in relation to testing at pre-verification and verification stages.  The investigator did not meet with the complainant.  Had he done so, I believe that this position would have come to light.  I therefore conclude that this is a key failure in the investigation process.

The investigator concluded ‘it is my opinion that this was a deliberate refusal to follow a reasonable direct instruction ….and is an act of serious insubordination.  In addition, by choosing not to follow Danielle’s instructions the impact could have had serious consequences, and as such it is my belief that Paul’s actions have led to a serious breach of trust and confidence in his role as a scientist’. This conclusion clearly indicates that the investigation went beyond a fact-finding exercise and indicates the investigator had reached a conclusion as to the culpability of the complainant, without having given him an opportunity to explain his actions.  It is at least possible, that had he been aware of the distinction regarding the non-use of the assay at verification stage that his opinion might have been different. 

The issue regarding the reasonableness of a decision to dismiss was further considered in Bank of Ireland v Reilly[2015] IEHC 241, where Noonan J. noted that s6(7) of the Act makes it clear that a court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. However,

“that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”

Failure to obey a legitimate instruction of itself, while serious, cannot be divorced from the context and relative importance of the instruction. In some instances, refusing to obey an instruction may have grave consequences for the company, while in other instances less so. Therefore, the proportionality of the penalty is linked to the gravity of the potential consequences. It is clear from the investigator’s report that he understood – without having met with the complainant- that the consequences for the respondent of the refusal to obey the instruction were potentially grave. I have difficulty accepting the evidence given that this report had no effect on the decision arrived at by the disciplinary hearing. The information relating to the test being applied at pre-verification stage was available at both the disciplinary hearing and the appeal and it is difficult to see how this information did not mitigate a decision to dismiss complainant.  I therefore conclude that the decision to dismiss the complainant was not reasonable and that he was unfairly dismissed.  The complainant’s conduct contributed significantly to his dismissal and I have reduced the amount of compensation by 50%.

I find that the complainant was unfairly dismissed and I order the respondent to pay the complainant compensation in the sum of €25,000 which I deem to be just and equitable having regard to all the circumstances.

Unfair Dismissal.  Dismissal Disproportionate.  Failures in investigation.