Complainant

Respondent

Parties

Michael  Molumby

Pinewood Health Care Laboratory

Representatives

 Bairbre Ryan BL instructed by W.F. Gleeson & Co. Solicitors

 Mary Paula Guinness BL instructed by Eversheds Sutherland 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-00042817-001

03/03/2021

The Complainant was employed as a Quality Analyst in the Pharma Lab and he alleged he had to resign in September 2020 due to the conduct of the Respondent and he claimed he was constructively dismissed. The Complainant, Mr. Ambrose Downey, HR Manager and Dr. Sweeney, Quality Consultant all gave evidence under affirmation.

The Complainant was employed as a Quality Control Analyst for approximately 15 years between September 2005 and September 2020. Prior to his resignation on the 4th September 2020 he worked in the Quality Control Labs.

The Complainant alleged in evidence that the standards in this lab were not as high as in the previous lab in which he had worked in the Respondent. He put this down to the direction of management in the lab. Very soon after he arrived into the Quality Control Lab he mentioned to his Manager that checking the integrity of the data was standard practice and he was told that “this is the way we do it” and that they didn’t have time for data checking and that the lab needed an experienced data checker. He alleged he was repeatedly told that the workload in the lab had increased tenfold over the years and there was no consequent increase in staff. There was, therefore, very limited peer review of certain data and chromatographs.

On the 16th July 2020 he was asked to meet with two external Data Consultants to discuss quality control and their review of the approving procedures which had been carried out by those Data Consultants some days prior to the 16th July 2020. When requested to meet with the Data Consultants in question he was informed by management that this discussion would be a relatively informal chat surrounding the quality control procedures in the lab and how they might be improved. Immediately after the discussion began he stated he realised that this was more akin to an investigation. He alleged it quickly moved from being a friendly chat to being a targeted investigation of his work practices. He was presented with findings about poor work practice in relation to the signing off of products.

In the meeting he was shown chromatography graphs which had been generated by other team members from the Quality Control Lab. He very clearly felt that he was being asked to implicate other staff members in the lab which he was not prepared to do. The Data Consultants conducting this interview insinuated that he was guilty of malpractice by being aware of poor data integrity processes and not doing anything about it. However, as outlined above, he had raised his concern in relation to these practices previously. He was very nervous during the interview. This was partly because of the intimidatory atmosphere and also because his Supervisor, had very recently been dismissed. The nature of this interview led him to believe that he was next. Before the meeting ended he was offered “an amnesty” if he would become a whistle-blower for the company. He felt very uncomfortable being asked to comment on the practices of his colleagues and team members. He was then offered a notepad and asked to sign same as a record of all that had been said. He was not willing to sign this on the spot and without taking legal advice. Following this interaction on the 16th July he attended work for a few days but due to increasing stress resulting from that meeting on the 16th he then took sick leave from about the 23rd July onwards. He subsequently initiated the company’s grievance procedure and attended a meeting in Clonmel with the HR Manager on the 24th August. Without any satisfactory outcome from that procedure from his perspective he felt compelled upon the termination of his sick leave to tender his resignation and he did so by email dated 4th September 2020. He felt that his dignity and respect as an employee of Pinewood was completely disregarded. He felt scapegoated and humiliated as a result of the meeting which had taken place in July and he felt the only course of action he could take for his dignity and health was to resign.

The Respondent is a company that manufactures and distributes a range of generic, ethical and over-the-counter (OTC) products.  Its markets are predominantly in Ireland and the UK.  It employs over 300 people and holds a licence from the Health Products Regulatory Authority (HPRA) to manufacture a range of pharmaceutical products including oral liquids, suspensions, creams and ointments.  The Respondent was originally established in 1976 to serve the renal care market in Ireland,

The Complainant filed a complaint against the Respondent under the Unfair Dismissals Acts 1977-2015. The Complainant resigned from his employment with the Respondent on 3 September 2020.   The Respondent denied the Complainant’s claims in their entirety. The Respondent submitted that the Complainant was not unfairly dismissed, constructively or otherwise. His employment was not terminated by the Respondent.  Of his own volition, the Complainant chose to resign his employment prior to the completion of a grievance investigation into allegations he brought to the attention of the Human Resources department on 23 July 2020.   

The Complainant commenced employment with the Respondent on 25 September 2005 as an analyst in the Stability & Validation Laboratory of the Quality department.  He transferred to the role of Quality Control (QC) Analyst in the QC Laboratory on 1 April 2019.

On 3 July 2020, a QC Laboratory Supervisor (Finished Goods Product Release testing) with the Respondent was dismissed from his employment reason of gross misconduct on two grounds, Serious breach of trust and confidence and deliberately falsifying information.  The QC Laboratory Supervisor in question was the line manager of the Complainant.

The Respondent commissioned an assessment from independent consultants – The Compliance Group – on the extent of data integrity compliance in the Quality laboratories of the Respondent: (1) QC Laboratory, (2) Stability & Validation Laboratory, and (3) Micro-biology laboratory. The consultants conducted their assessment on 15 and 16 July 2020 and their report was issued to the Quality Manager in August 2020.  The independent consultants sought to assess the level of data integrity compliance in the facility, using the level of testing commensurate with a statutory investigation.  The assessments were performed by the consultants in the following manner:

i.        Interviews with a 13 employees across all laboratories;

ii.       Review of Calibration logbooks;

iii.      Review of Analytical Records;

iv.     Review of Batch Manufacturing Records;

v.      Review of logbooks of the QC Lab Supervisor (finished products) who no longer works with the Company.

On 16 July 2020, the Complainant was interviewed by two consultants from the Compliance Group.  The consultants were:

Mr. Stan O’Neill, Managing Director; 

Dr. Kevin Sweeney, Senior Regulatory Consultant.  

Both Mr. O’Neil and Dr. Sweeney are highly experienced professionals in their field.  Mr. Stan O’Neill was a senior inspector with the Irish Medicines Board (now the HPRA – Health Products Regulatory Authority).  Dr. Kevin Sweeney holds a PhD in Criminology and is also a former detective with An Garda Síochána.  Both have a career track record of fact-finding, investigation and evaluation of Quality management (practices and policies) at the highest level in their fields of expertise.  

According to the memo of interview notes with the Complainant (dated 16 July 2020) compiled by Dr. Kevin Sweeney of the Compliance Group, the Complainant was shown a chromatogram which he had processed to which he acknowledged that the peak was not correct and that he was not happy about it.  In his interview with Dr. Sweeney, the Complainant further explained that no one (in the QC Laboratory) checks chromatograms.  When asked by Dr. Sweeney why an analyst of his experience and ability was content to produce this poor type of work, the Complainant spoke about his resentment with not getting a QA role he had applied for in the QA Department in 2019.  He also explained to Dr. Sweeney that he was tired of the extra and unnecessary paperwork in the Stability & Validation lab where he worked from September 2005 up to April 2019. 

The Complainant further explained to Dr. Sweeney that when he moved from the Stability & Validation Laboratory to the QC Laboratory he was not happy with his own future to be looked after (in terms of securing a role in the QA Department).  In the QC Laboratory, the Complainant said he just did what others were doing even though he knew standards were low.  The Complainant further told Dr. Sweeney that this was “just the tip of the iceberg”.  When asked by Dr. Sweeney how deep this was, the Complainant became uncomfortable and was at this point offered an amnesty or anonymity in return for information.  At this point, the Complainant abruptly left the interview with the Compliance Group.    

On 20 July 2020, Mr. Ambrose Downey (HR Manager with the Respondent) met with the Complainant at his request. At this meeting, Mr. Downey explained that, from his understanding, the consultants were brought in to interview the laboratory teams to assess adherence to data integrity principles and practices across the laboratories.  Mr. Downey reassured the Complainant on all of the concerns he expressed, namely that he felt he was subjected to an aggressive, intimidating interrogation by the external consultants, and that he was offered an amnesty if he offered additional information into malpractice in the QC Laboratory.  At the end of his meeting with Mr. Downey, the Complainant said that he was happy with what was discussed with Mr. Downey and that he would not take the matter any further.  

On 23 July 2020, the Complainant emailed Ms. Fiona Bourke (Senior HR Officer) and Mr. Ambrose Downey (HR Manager) to lodge a formal grievance over his meeting with the external consultants.   In his grievance statement, the Complainant claimed that he was “subjected to an ambush of aggressive interrogation, intimidation and blackmail by these consultants whose specialty is data integrity.”    He further claimed that he and his colleagues “had been informed of the consultation on Tuesday 15/07/20 by Mr. X( Quality Manager). We were told that the consultants were here to assess our situation in the labs (all labs) and ‘see where we are at’ as regards data integrity.  Some of [us] could expect to be called up to talk with them – ‘have a little chat’ is the way it was phrased.”

The Complainant’s grievance statement further claimed that he found himself being “interrogated in an aggressive and judgmental manner in a way in a way that called into question my professional integrity and good character. I was confused as to the objective of it all. We are not hiding any secrets in the QC department that need to be excavated in this fashion. I would be happy to talk with complete honesty about my work practices with anyone in higher management if they ever bothered to ask me.”

The Complainant added: “Towards the end of the meeting I was offered an ‘amnesty’ in exchange for certain information. This sounded like blackmail. At this stage I got up and walked out without signing the notepad which had been pushed under my nose.  This has been the most humiliating experience of my life. It was an ambush and an assault on my good name and character which were dragged through the gutter. I’m proud of the quality of work that I do and cannot believe I was treated this way. Why was I the only one of many laboratory analysts called to meet the consultants treated in this way? Could it be that I was targeted as a quite type of person who might leak information if put under pressure? Could there be another agenda besides data integrity? The experience has completely undermined my trust in Pinewood as a place where I can come to be appreciated and valued.”  

 At 12:01pm on 23 July 2020, the Complainant clocked out of work after explaining to his line manager that he would be taking some time off due to work related stress.  Prior to clocking out, the Complainant emailed the HR department to say that he would be taking time off to recuperate from work related stress with immediate effect.  

On 13 August 2020, the Complainant emailed Mr. Downey requesting specific documents in advance of arranging a meeting to address his grievance:

A copy of the Company grievance policy;

A copy of the hand-written notes taken by Dr. Kevin Sweeney on 16 July 2020;

Copies of the chromatograms of Codeine Linctus that were reviewed in his meeting with

The Compliance Group.

The names of the people who searched through his work for the Chromatograms without his permission or consent. 

On 14 August 2020, Mr. Downey emailed the Complainant to state that, as he was currently certified as unfit for work, he would hold off on addressing his email dated 13 August until the Complainant is back in the workplace.

On 17 August 2020, the Complainant emailed Mr. Downey in which he explained that while his doctor certifies him as unfit for work, it did not mean he was unfit to talk to Mr. Downey.  

Later on 17 August 2021, Mr. Downey emailed the Complainant to confirm that the Company had received a report from the Mary Street Medical Centre, Clonmel, which confirmed that he was considered fit to engage with the Company regarding his grievance.  The email also invited the Complainant to a grievance investigation meeting on Wednesday, 19 August 2020 at a local Hotel.  A copy of the Company grievance and discipline policy was attached to the email.  Also attached was a copy of the LRC Code of Practice on Grievance and Disciplinary Procedures.

On 18 August 2020, the Complainant emailed Mr. Downey requesting that their meeting, scheduled for 19 August 2020, be rescheduled for 20 August 2020.  Mr. Downey responded to the Complainant on 18 August to explain that he was not available on 20 August due to a conflict with another meeting.  The Complainant replied back on 19 August to say that the workplace colleague who was originally to accompany him was no longer available, and that his wife was insisting on accompanying him to the meeting.  

 Later on 18 August 2020, Mr. Downey responded by email to the Complainant to explain that the meeting would be deferred to a later date to give the Complainant the opportunity of identifying another work colleague to accompany him.

On 21 August 2020, the Complainant emailed Mr. Downey to express his deep unhappiness with the Company doctor’s report. He requested to see another doctor at the Mary Street Medical Centre in Clonmel for a second opinion, as well as requesting a copy of Dr. Cantwell’s report from a previous stress-related episode from March 2019. 

On 22 August 2020, Mr. Downey emailed the Complainant to convey that he had contacted Mary Street Medical Centre regarding his request dated 21 August.  The email contained a response from Dr. Cantwell on behalf of the medical centre.

On 24 August 2020, Mr. Downey emailed the Complainant to confirm a meeting room booking at a local Hotel on 26 August 2020 for the purposes of formally investigating the Complainant’s grievance.  

The Complainant was unaccompanied at the grievance investigation meeting with Mr. Downey at the Clonmel Park Hotel on 26 August 2020.  Mr. Fiona Bourke (Senior HR Officer) attended the meeting in the capacity of note-taker. 

Mr. Downey read through the original grievance statement that was emailed by the Complainant to the HR Department on 23 July 2020.  The Complainant was then invited to elaborate on this statement in order to set out the full extent of his grievance with the Respondent.  

At the grievance investigation meeting on 26 August 2020, the Complainant stated that the main reason for his grievance is the way that the Quality Manager has handled the data integrity issue.  He claimed that the Manager  “is not correcting the problem in the lab even though he could have done so and he is happy to let the lab be discredited … [and that] … the two consultants served a trap to discredit the QC Lab on the data integrity issue which he thinks (Mr. X)  had a duty to solve back when he became aware of it”. 

Other items that were raised by the Complainant at the meeting on 26 August 2020 included:  

The reasons why the Compliance Group were brought in as external consultants;  

An alleged conversation between the Site QC Manager and the former QC Laboratory Supervisor (approximately February 2020), to which the Complainant claimed he witnessed;

An allegation that the Manager is aligned with the Stability & Validation Laboratory;

On 31 August 2020, the notes from the grievance investigation meeting between the Complainant and Mr. Downey were forwarded by email to the Complainant.  The Complainant was requested to read through the meeting notes and to revert to Mr. Downey by close of business on Wednesday, 2 September if there were any corrections or clarifications he wished to highlight.

Mr. Downey invited the Site Quality Manager to a grievance investigation meeting to take place at 09:30am on Friday, 4 September 2020.  Mr. Downey also emailed the Quality Manager to pose a number of questions to which the Quality Managers response was sought relating to a number of points raised by the Complainant. 

At the investigation meeting with the Quality Manager on 4 September 2000 the Quality Manager advised the Investigation the following;

{The Compliance Group was engaged after the discovery of a data integrity issue which was at the extreme end with the falsification of data.   He further explained that the concern which arises from this discovery is that if the Respondent did not investigate, not just that one incident but to understand the laboratories and the culture within the lab in which the incident occurred, then the Respondent could be exposed to greater investigation by independent regulatory authorities. The Quality Manager added that rather than attempting to ascertain this internally, it was important to get a report from a third party, an independent body, to gain an oversight of that incident and current practices of laboratories within the Respondent company. On the terms of reference given to the Compliance Group, the Quality Manager explained that the Compliance Group is an established organisation in which a lot of their people have worked directly, indirectly or in close proximity of the regulatory authority of Ireland, the HPRA. Their engagement was to independently ascertain if there was any other areas of concern, equal or less in terms of data integrity, to the incident that had arisen. The Quality Manager clarified that the incident he was referring to was the falsification of data of finished product, by which he meant the data was never truly generated and was a made up result used to release product to market. The Quality Manager made it clear that the consequences of the discovery, and subsequent discoveries, meant that the Respondent “could lose its license in the blink of an eye, the site would be shut down with no warning of activities being suspended, and this would be as a result of the activities that went on, no matter who is involved.”  On the Complainant’s allegation that the QC Lab has been set up to be discredited deliberately the Quality Manager explained that his role is the head of Quality, and as so he has to comply with the regulatory rules, not just of the Respondent company, but the EU, and their expectations of how the company license and test product. He added that any suspicion or breaches of that code of conduct is and will be investigated no matter who or what department is involved.  The Quality Manager  further added that how anyone could take that as trying to discredit a lab is incredible and that person must be blinkered to the consequences.   On the Complainant’s allegation that the Quality Manager had aligned himself with the Stability & Validation Laboratory rather than the QC Laboratory, the Quality Manager claimed that the Complainant’s statement was incredible.  In particular, the Quality Manage highlighted that there “has been substantial expenditure in the QC lab as there is a focus on that area as it is one of the key labs so to say that the lab is being ignored, or their needs are not being addressed, isn’t right.”   The Quality Manager further added that “he has focused on areas of concern, and has been engaged in this since May 2019, and before … [and that] … he doesn’t understand how there is a continuous statement of ‘them and us’, especially coming from someone who asked to be moved from one lab to another after an unsuccessful attempt to move to QA”.  The Quality Manager also commented on the Complainant’s allegation that a conversation took place in the Quality Control Laboratory in February 2020 between Mr X and the QC Lab Supervisor (no longer working with the Company).  The Complainant claimed he witnessed the conversation during which the former QC lab supervisor explained to the Quality Manager that QC Lab analysts check calculations, but they don’t check chromatograms.  The Complainant also claimed that arising from this alleged conversation, the Quality Manager knew what the practices were in the QC Lab regarding data checking and data integrity, and that if he had any concerns at that point, he should have taken immediate action to remediate any issues/malpractice. In his rebuttal, the Quality Manager made it clear that there is no difference in expected application of procedure in any of the labs at the Respondent company in that data has to be, and is, checked. He also explained that for anyone to believe that it is acceptable to transfer from one lab to another (as was the case with the Complainant) and expect that they don’t have to check data to the same standard is very unprofessional.  }

At 3:33pm on Friday, 4 September 2020, the Complainant emailed Mr. Ambrose Downey (HR Manager) and Ms. Fiona Bourke (Senior HR Officer) to tender his resignation as an employee of the Respondent.

On Monday 7 September 2020, Mr. Downey emailed the Complainant to acknowledge the tendering of his resignation as an employee of the Respondent.  Mr. Downey also set out that the Company is fully investigating the Complainant’s allegations as it is extremely important for the record to determine their accuracy and legitimacy.  Mr. Downey also stated that the Respondent does not admit any liability for any claims that it is responsible for Mr. Molumby’s decision to resign.

 On 7 September 2020, Mr. Downey emailed Mr. Stan O’Neill and Dr. Kevin Sweeney of The Compliance Group to request their perspective on the grievance allegations raised by Mr. Molumby.   . 

Mr. Stan O’Neill and Dr. Kevin Sweeney (The Compliance Group) emailed Mr. Downey on 9   September 2020 in response to the questions posed by Mr. Downey in his email dated 7 September 2020.From a review of the responses from Mr. O’Neill and Dr. Sweeney from the Compliance Group, the Grievance Investigation established that the Compliance Group was asked to conduct an independent investigation.  They were not tasked with deliberately discrediting the QC Laboratory or seeking to question the character, professionalism and integrity of the Complainant.  They were requested to conduct the assessment at a level commensurate with a statutory investigation equal to what the HPRA would conduct if they came on site.  Their questioning of employees was necessary to establish and understand the facts as well as to form an independent opinion on the extent of data integrity compliance in the Quality laboratories of the Respondent. 

In relation to the entire set of allegations that the Complainant brought to the attention of Respondent for a grievance investigation, the Investigation concluded that there is no foundation to what was alleged. 

On 14 September 2020, Mr. Downey wrote to the Complainant enclosing a copy of the grievance investigation report.  In his letter, Mr. Downey wrote that ”in normal circumstances this decision could be appealed internally but given that you resigned your employment with Pinewood Healthcare on 4th September last, there is no right of appeal on this occasion

 The Respondent made a submission on the Act, case law and grounds for constructive dismissal.

As outlined above, the Respondent commissioned an independent assessment by the Compliance Group to determine the extent of data integrity compliance in all the Quality Laboratories of the Respondent. A central part of this assessment included conducting interviews with 13 employees, including the Complainant, across all laboratories. The questioning of employees was necessary to establish and understand the facts as well as to form an independent opinion on the extent of data integrity compliance in the QC Laboratories of the Respondent. The consultants were not tasked with deliberately discrediting the QC Laboratory or seeking to question the character, professionalism and integrity of any individual employee, including the Complainant. They were requested to conduct the assessment at a level commensurate with a statutory investigation equal to what the HPRA would conduct if they came on site. The Compliance Group questioned all 13 employees in a similar manner and in accordance with the standard of questioning which would be expected if HPRA came on site. 

It was submitted that the evidence of the conduct of the Respondent proffered by the Complainant fails to meet the standard of unreasonableness required to substantiate a claim of constructive dismissal in line with the Reasonableness Test.  

It was submitted that the Complainant did not exhaust the internal procedures available to him despite the fact that the Respondent conducted a full and robust grievance investigation of the allegations raised. The Complainant’s grievance and subsequent investigation culminated in an investigation report, the result of which was communicated to the Complainant. The Respondent acted properly and in accordance with its grievance procedure in response to the Complainant’s grievance. Therefore, it was submitted that by applying the normal standard of reasonableness, an employee in the same circumstances as the Complainant would not be justified in resigning in response to the Respondent’s conduct.   Furthermore, It was submitted that, in all the circumstances, the adjudication officer cannot accept that the reasons cited by the Complainant for his resignation constituted a fundamental breach by the Respondent going to the root of his contract of employment nor could any of the other matters referred to by the Complainant either individually or cumulatively, amount to such a fundamental breach of his contract. It was further submitted that the Respondent acted reasonably throughout its engagement with the Complainant and the Complainant’s decision to resign was both premature and unreasonable.

Having completed a comprehensive investigation of the Complainant’s grievance, the Respondent established that there was no basis or foundation to the matters raised.  They advised it was  regrettable that the Complainant chose to resign of his own accord. However, the Respondent submitted that it acted reasonably and fairly at all times in dealing the issues referenced in the Complainant’s grievance.  

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where conduct of the employer amounts to a repudiatory breach of the contract of employment an employee could be entitled to regard themselves as having been dismissed. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332it was held by the Employment Appeals Tribunal that, to meet this test “an employer must be “guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”

Alternatively, a line of authorities has established a reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test to substantiate a complaint of unfair dismissal. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer.

Similarly, a line of authorities has established that an employee who seeks to rely upon the Act must demonstrate that they also behaved reasonably in concluding that they are entitled to terminate their employment. In particular, the authorities make clear that an employee must seek to utilise the available grievance procedures in the employment before terminating their employment or else demonstrate why such a course of action would not have been reasonable or practicable.

In Beatty v Bayside Supermarkets UD 142/1987for example, the Employment Appeals Tribunal held:-

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

The applicable law

Unfair Dismissals Act

Definitions

Section 1

‘dismissal’ means……..

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,…..”

The Complainant resigned his position while the Respondent was still conducting an investigation into his grievance and this process had not concluded nor been unreasonably delayed. Therefore, the complaint is one for constructive dismissal.

The Complainant gave evidence under affirmation that he felt harassed at the interview with Dr. Sweeney and that he was being asked to give generic and specific details of issues with quality in the company. He advised that he initiated a grievance as a result of this meeting. Dr. Sweeney gave evidence that he conducted all 13 interviews in the same manner and did offer the Complainant, along with other interviewees, a personal amnesty against individual disciplinary action arising from the interview and that the Consultants were only interested in addressing systemic issues.

The Complainant also gave evidence that he declined to have the interview recorded. Dr. Sweeney in evidence stated he informed the Complainant that the recording was only to avoid note taking and to assist the interview and that he would not be disciplined arising out of anything he stated. All other employees consented to being recorded however the Complainant was well within his rights to decline to be recorded however the absence of such recording is detrimental to the Complainants case that he was being intimidated and harassed, or not, as may be the case.

The Respondent initiated an investigation into the Complainants allegations but the Complainant resigned prior to the investigation being completed. There was no evidence of any undue delay or bias in the investigation. The Complainant stated he had to resign and claimed constructive dismissal on the basis he had lost trust in the Respondent. The Respondents evidence was that the Complainant may not have not completed a quality check properly with a chromatograph. The Respondent was clearly interested in addressing cultural and systemic issues to prevent this happening in the future to avoid any loss of their licence. There is nothing unusual or abnormal about the Respondents approach to attempt to establish the issues involved on quality control of its products and it as an essential independent check on its systems. The Audit was both required, appropriate and there was an essential business need to conduct the audit. The Complainant was offered an amnesty against any disciplinary action, approved by the Consultants with the Managing Director in advance of the interviews, there was no mention of any misconduct or disciplinary action in the interview with the Complainant and there was no threat to the Complainants job (or other participants) arising from the interviews. The Complainant left the employment prior to his grievance investigation being concluded and he did not offer any convincing evidence of any situation that would not allow him to continue in employment. There is an obligation on an employee who claims constructive dismissal to complete all stages of any internal grievance procedure before resigning, unless the alleged grievance/breach of contract is of such magnitude as to warrant immediate resignation which is not the case in this complaint.

The submission of the Complainant refers to events which covered only a short number of weeks

The Adjudicator must give weight to sworn testimony and I could find no reason to impugn the evidence tendered on behalf of the Respondent. The Adjudicator notes the existence of comprehensive grievance procedures in the employment and accepts that staff of the Respondent were aware that such procedures existed. The Adjudicator notes in particular the Complainat’s assertion that he left the meeting with Dr. Sweeney to get legal advice. He had secured legal advice prior to resigning and the Adjudicator is satisfied that the Complainant had the means and opportunity to be aware of the existence and detail of the grievance procedure in place in the employment.

Having regard to the written and oral submissions of the parties and the submissions and evidence given to the Adjudicator I conclude that the Complainant has not established that he was unfairly constructively dismissed. He has failed to establish that any behaviour of the Respondent that could reasonably be interpreted as having entitled the Complainant to terminate his employment in a manner which could be found to amount to constructive dismissal. The Audit conducted by the Respondent was a necessary and professional review of standards of the Respondents quality systems, an essential examination based on prior findings of system issues and justified by the findings of the Consultants Audit. The Respondent had both the obligation to customers and a key business requirement to conduct a comprehensive audit.

.

The additional matter for the Adjudicator to consider is whether the manner in which the complaint made by the Complainant was handled by the Respondent warranted his resignation in accordance with the standard set out in s.1 of the Act, as quoted above. As pointed out above, there are two tests for determining if a constructive dismissal has occurred. The first test is the ‘Contract Test’. In considering this test the Court has to consider if a term of an employee’s contract was breached by the actions of the employer such as to make it reasonable for an employee to determine that the contract had been terminated. The second test is the ‘Reasonableness Test’, in which there is a burden of proof on a Complainant to establish that the behaviour of an employer was so unreasonable that it was reasonable for the employee to terminate their contract of employment.

It is on the latter test that the Adjudicator has focused on assessing the circumstances of the instant case. As pointed out above the Complainant was never accused of misconduct, was not subject to any disciplinary action and was offered an amnesty for any failings on his behalf.  As the Respondent pointed out in their submission, it is well established in law that in a claim by a Complainant, which is assessed under the Reasonableness Test ,it is usually necessary for the Complainant to display that they have exhausted all internal procedures for dealing with complaints before resigning from their employment. As the Employment Appeals Tribunal put it in Travers v MBNA Limited (UD720/2006)‘it is incumbent for an Appellant to utilise all internal remedies’, something that was set out clearly in the earlier case of Conway v. Ulster Bank (UD474/1981.) Ordinarily, therefore, an employee, such as in the instant case, who has not exhausted all internal procedures is unlikely to find acceptance by an Adjudicator that they have been constructively dismissed.

Dismissal as a fact is in dispute and consequently it was for the Complainant to establish as a matter of probability that his employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.

In this case the Complainant resigned his position by email dated September 4th 2020.

While his letter of resignation makes allegation of his work being challenged by the Consultant’s it equally thanks the company for their efforts and stated his resignation is more on health and self ethical grounds than setting out any breach of contract by the Respondent. Critically, the Complainant failed to wait for the conclusion of his grievance and nothing in the evidence of the Complainant was of such grounds as to satisfy either the contract breach or reasonable test outlined above.

Based on the above findings, I find that the Complainant dd not have sufficient grounds to justify his resignation.

I decide that the Complainant was not unfairly dismissed.

Unfair Dismissal