Complainant

Respondent

Parties

Martin  O'Riordan

Abbott Ireland Limited

Representatives

Mr. Sean Ormonde, Sean Ormonde & Co. Solicitors

Mr. Mark Rodgers BL, instructed by  Matheson Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00038760-001

16/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00038760-002

16/07/2020

The Complainant was employed as a general operative with the Respondent. The Complainant commenced employment on 6th January 2006. On 6th July 2020, the Complainant was dismissed by the Respondent on the grounds of gross misconduct. The Complainant was a permanent full-time employee, in receipt of an average weekly payment of €671.00

On 16th July 2020, the Complainant referred the present set of complaint to the Commission. Herein, he alleged that his dismissal was unfair for the purposes of the present Act. In particular, he submitted that the Respondent’s findings of gross misconduct were entirely inappropriate and based on a fundamentally flawed disciplinary procedure. In denying this complaint, the Respondent submitted that the Complainant’s actions on the date in question clearly constituted gross misconduct and the sanction of dismissal was both proportionate and reasonable in the circumstances. The Complainant did not pursue the complaint under the Employment Equality Act at the hearing.

Hearings in relation to these matters were convened for numerous dates across 2020 and into 2021. Unfortunately, the progress of the matter was initially delayed by the restrictions arising from the Covid-19 pandemic and the difficulty in convening a hearing on foot of the same. Thereafter, following the Judgement of the Supreme Court in the matter of Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24, the matter was further adjourned to permit evidence to be taken on oath. Following the Judgement of the High Court in the matter of Burke -v- An Adjudication Officer [2021] IEHC 667, the Adjudication Officer initially designated to hear the matter recused herself from any further involvement in circumstances whereby unsworn testimony had been heard in advance of sworn evidence. On foot of the same, the hearing was designated to the present Adjudication Officer to commence anew. Following a case management session, conducted by means of the remote platform, the substantive matter was heard over two days, falling on 3rd & 4th October 2022.

This matter was heard alongside a set of complaints previously referred to the Commission under Adjudication Reference ADJ-00018796. Evidence in relation to all complaints were heard over the same two days, and this decision should be read in conjunction with the decision issued under the above-mentioned reference.

In advance of the hearing, both parties exchanged substantial submissions. The Complainant gave direct evidence in support of his complaint. The Respondent called a Senior Quality Manager to give evidence in defense of the allegation. All evidence was given under affirmation and was opened to cross examination by the opposing side.

As dismissal as a fact was not in dispute, the Respondent accepted the consequent burden of proof imposed by the Act.

At the outset, the Respondent submitted that the dismissal of the Complainant was fair, reasonable, proportionate and justified having regard to the gravity of the misconduct that led to his dismissal.

At all material times, the Respondent operated a number of procedures which all operatives must adhere to in the course of their employment. One of these procedures provided detailed instructions to operatives for the preparation of inventory fixtures. Step 2.4 of this procedure requires the operative in question to apply a cleaning agent to an item to be used later in the process. The procedure expressly stipulates that the cleaning agent used must have a alcohol concentration of 100%. The procedure requires that the operative verify their material by label on their return from break.

On 1st April 2020, the Complainant was engaged in this task. On his return from break he failed to verify the same in accordance with the procedure, resulting in the incorrect cleaning agent being used. Thereafter, the Complainant failed to engage with a member of the quality team or his supervisor in respect of the corrective action that should be taken on foot of the same.

On 2nd April, the Respondent initiated an investigation process in respect of this incident. The Complainant was further suspended from duty on full pay on this date. As part of this process, statements were taken from the Complainant, A Quality Technician, and two individual Production Supervisors. The Respondent submitted that the suspension of the Complainant was necessary to prevent a possible re-occurrence of the matter being investigated. As part of the process, the Respondent examined their internal process regarding the steps to be taken on the identification of such issues. This process dictates that on the identification of a potential issue, the party in question must pause their work and seek assistance in relation to the resolution of the problem. As part of this process, it was determined that the Complainant failed to use the correct cleaning agent as stipulated in the relevant procedure. Upon realising his error, the Complainant then sought to rectify the issue by reprocessing the relevant parts without instruction to do so.

Disciplinary meetings were convened in relation to the foregoing on 13th May 2020 & 25th May 2020. This process was chaired by a Quality Manager for the Respondent. The Complainant was afforded the opportunity to explain his response to the allegations and given an opportunity to respond to the statements collected as part of the process. At a final meeting of 6th July 2020, the Complainant was advised that this action on 1st April previous constituted gross misconduct. As a consequence of the same, the Complainant was informed that his employment was to be terminated with immediate effect. By subsequent correspondence, the Quality Manager alluded to the fact that the Respondent is engaged in the manufacture of device that are to be used in extremely delicate medical procedures. As such the Respondent must have rely on the complete trust of all employees in every instance. Having regard to the conduct of the Complainant on the date in question, such trust was irrevocably damaged, and the Respondent was left with no option but to terminate the Complainant’s employment. Thereafter, the Complainant engaged with his right to appeal this outcome. Following a meeting in relation to the same, the outcome of dismissal was deemed to upheld and the process efficiently finalised.   

In evidence, the Quality Manager stated that he was appointed to chair the disciplinary process. He stated that he worked in a different area to the Complainant and was unaware of the previous issues he experienced in his employment. The Quality Manager opened the manufacturing protocol and explained the error made by the Complainant on the date in question. In addition to the same, the witness opened the process for the processing of improperly cleaned units and set out how the Complainant was in error by re-processing the same without guidance from the quality department. The witness stated that he spoke with every person that was in any way connected with these events so to get a complete a picture as possible prior to making any decision. He stated that he went as far as to recall certain witnesses once issues were raised by the Complainant. Regarding the sanction imposed on the Complainant, the witness emphasised the nature of the Respondent’s business and the products they manufacture. He stated that in such circumstances the Respondent must have absolute trust in their employees to follow relevant procedures. In this regard the Quality Manager was particularly troubled by the Complainant’s re-cleaning of the effected items without instruction to do so by the quality team. He stated that while this issue was rectified at a later stage, such matters may give rise to more serious concerns.

In answer to a series of questions posed in cross-examination, the Quality Manager accepted that the Complainant was not in receipt of a final written warning on the date of his dismissal. In this regard he accepted the letter of dismissal contained an error. Notwithstanding the same, the witness stated that the Complainant had received a prior disciplinary sanction was, in his view, on a disciplinary path on the date of termination.

By submission the Respondent stated that the process adopted by the Respondent in effecting the Complainant’s dismissal was fair and respected all his natural and contractual rights. Regarding the decision to dismiss the Complainant, the Respondent submitted that the same was proportionate and within the band of reasonable responses having regard to all the circumstances. In this regard it was submitted that the nature of the Respondent’s business is that compliance with correct procedures and manufacturing processes is of paramount importance. A refusal to obey these procedures is of grave consequence to the Respondent. In circumstances whereby the Complainant demonstrated a direct and wilful failure to abide by these processes, the Respondent acted reasonably in concluding that the relationship of trust and confident, essential to every contract of employment, was irrevocably damaged.

Having regard to the foregoing, the Respondent submitted that the dismissal of the Complainant was not unfair for the purposes of the present Act.

The Complainant outlined that on 1st April 2020 he was working as usual. During the normal course of his duties, a Quality Technician informed the Complainant that he had been using a cleaning agent containing the incorrect concentration of alcohol. Following this discovery, the Complainant immediately identified all affected cases and recleaned the same using the correct solution. The Complainant engaged with the relevant safety procedure, in respect of issues that arise during the course of a working day and thereafter completed his duties as normal.

The following day, the Complainant was shocked to received notification that he would be placed on indefinite suspension on the basis that he used an incorrect cleaning solution and did not escalate the matter to the quality representative. Following a number of investigatory meetings, the Complainant was invited to a disciplinary meeting in respect of the same. On 6th July 2020, the Complainant was invited to a meeting whereby he was verbally informed that his employment was to be terminated on the grounds of gross misconduct. By subsequent correspondence, the Respondent erroneously stated that the Complainant was currently on a final written warning, an assertion that was demonstrably untrue. While the Complainant engaged in an appeal of this sanction, this found that the process adopted was fair and that the sanction imposed was proportionate to the wrong-doing alleged.

In evidence, the Complainant outlined the events of 1st April 2020 as described above. He denied that he was ever instructed by the Quality Technician to isolate the improperly cleaned items. He stated that once he was informed that he made an error, he sought to immediately rectify the error be using the correct cleaning solution. He stated that he believed that the event in question was minor and not one that required any further investigation outside of the normal process. He stated that he was at a loss as to how the matter was considered a disciplinary issue at all, not to mention the basis for a finding of gross misconduct. He stated that throughout his career with the Respondent he was adamant in his adherence to the strictest safety protocols and in such circumstances dismissal on this basis was particularly for him to accept.

In answer to a question, the Complainant accepted that his action on the date in question were in contravention of the relevant manufacturing protocol. He denied that he refused to follow a direct instruction from the Quality Technician regarding the isolation of the effected units.

By submission, the Complainant submitted that his dismissal was unfair for the purposes of the present Act. Firstly, it was noted that the Respondent escalated a minor issue into an allegation of gross misconduct for the express purpose of dismissing the Complainant. In this regard, it was submitted that the allegation that the Complainant engaged in gross misconduct by failing to elevate the matter to quality control is nonsensical. In this regard it is common case that the issue in question was brought to the Complainant’s attention by the quality department. Having regard to the same, the allegation of gross misconduct related, at least in part, to an allegation that the Complainant did not elevate an issue to a department that informed him of the issue. The Complainant further submitted that the procedures adopted to effect his dismissal were fundamentally unfair. In particular, the letter of dismissal expressly stated that his dismissal was informed by his being in receipt of a final written warning. This was an entirely incorrect statement as the Complainant was not subject to any disciplinary sanction on the date of his dismissal. Despite raising these issues on appeal, this process found that the process adopted was fair and that the sanction imposed was proportionate to the wrong-doing alleged.

Having regard to the accumulation of the foregoing points, the Complainant submitted that his dismissal was unfair for the purposes of the present Act and, consequently, his application should succeed.

Section 6(1) of the Unfair Dismissals Acts provides that,

“Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

Section 6(4)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed…not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) of the Unfair Dismissals Act provides that,

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)”

Section 6(7) provides that in determining whether a dismissal is unfair, regard may be had:

a) “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

b) to the extent (if any) of the compliance or failure to comply…with the procedure…or with the provisions of any code of practice….”.

The matter of Noritake (Irl) Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:

·       “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?”

In the present case, the Respondent has submitted that the Complainant’s actions on 1st April constituted gross misconduct. As a consequence of the same, they submitted that the dismissal of the Complainant was fair for the purposes of the present Act by virtue of Section 6(4). In the alternative, the Complainant’s position is that his conduct on 1st April could not, in any circumstance, be considered gross misconduct by a reasonable employer. He further submitted that the process utilised to effect his dismissal was fundamentally flawed in that it relied on a final written warning that did not exist at the relevant time.

Having regard to the foregoing, an examination of the events of 1st April will be required. It is agreed that on this date the Complainant, on return from a break, used the incorrect cleaning solution for a process in contravention of the relevant manufacturing procedure. At approximately 12.15, the Production Supervisor was informed that the Complainant was engaged in this activity. Shortly thereafter, a Quality Technician approached the Complainant and informed him of the issue. Thereafter, the Complainant re-cleaned the units in question with the correct solution. Following the same, the Quality Technician, the Production Manager and the Complainant engaged with the Respondent’s internal procedure for the reporting of such mistakes. In this regard it should be noted that a conflict of evidence arises in relation to the foregoing, with the Quality Technician stating (during the investigation procedure), that he requested that the Complainant segregate the items for latter processing. During the investigation process, and in direct evidence, the Complainant stated that he recalled no such instruction.

From the evidence of the Respondent, it is apparent that the Complainant made two errors on the date in question. Firstly, he used the incorrect cleaning agent to complete the task he was assigned. Secondly, upon being informed of this mistake by quality, he attempted to rectify the mistake himself without segregating the relevant items for further inspection.

On foot of the same, the Respondent elected to commence a disciplinary process in respect of two separate allegations; his alleged non-compliance with company procedures and his alleged failure to escalate the matter to the relevant quality representative. Following a series of investigatory and disciplinary meetings in relation to the same, the Respondent concluded that these allegations were proven, that the actions in question constituted gross misconduct, and that the sanction of dismissal was a proportionate and reasonable response to the same. In particular, the Respondent submitted that the Complainant’s actions on the date in question led to an irretrievable breakdown in the essential bond of trust and confidence that must exist between employee and employer.

Taking the Respondent’s case at its absolute height, and noting the Complainant’s dispute regarding the contemporary instruction from the Quality Technician, it is apparent that the Complainant made two production errors on the date in question. While the letter of dismissal erroneously referred to the Complainant having previously received a final written warning, it was clarified that the Complainant was had no disciplinary sanction on file on the date of his dismissal. In this regard it is apparent that these two issues, and these issues alone, provided the basis for the Respondent’s finding of gross misconduct.

Whilst the term “gross misconduct” has proven somewhat elusive in its precise definition, Section 4 of the Respondent internal disciplinary procedure defines the same as,

“…behaviour of such seriousness that a high level of discipline, including dismissal, may be justified even in the absence of prior disciplinary action”

In the matter of Desmond Brennan -v- Institute of Technology Carlow UD281/2000, the Employment Appeals Tribunal held that,

“…“gross misconduct” must be something very serious indeed, perhaps criminal or quasi-criminal in nature.”

In consideration of the Complainant’s actions on 1st April, I cannot find that the same constitute gross misconduct. In the letter of dismissal, and in evidence, the Respondent stated that they had lost trust in the Complainant to complete his role. In this regard, the Complainant was a general operative with over fourteen years’ experience. In that time the Complainant successfully completed a vast amount of production processes without any issue ever being raised by the Respondent or any evidence that his work anything other than exemplary. Having regard to the same, it is difficult to comprehend how the Respondent passed over the sanctions of verbal warning, written warning, final written warning and determined that these two mistakes, isolated within a lengthy career, constituted gross misconduct and served to irrevocably sever the bond of trust between employer and employee. Whilst I note the evidence of the Quality Manager to the effect that he was concerned by the Complainant’s apparent failure to abide by a direct instruction from a quality technician, it is apparent that in seeking to reclean the affected items, the Complainant was simply seeking to rectify his earlier mistake. While I accept that this action is in further beach of the Respondent procedures, I cannot find that the same grounds a reasonable finding of gross misconduct in the circumstances.

The test to determine the proportionality of a dismissal as a sanction is well settled. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. approved the following passage,

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’

In matter such as these, the correct test is to determine whether any reasonable employer would have dismissed the Complainant. Having regard to the same, it is important that the decision maker does not substitute their view for that of the Respondent. However, in consideration to the totality of evidence presented to me, I find that no reasonable employer would have dismissed the Complainant in these circumstances and consequently I find that his dismissal was unfair for the purposes of the present Act.

CA-00038760-001 Complaint under the Unfair Dismissals Acts

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. In evidence, and by submission, the Complainant stated that he wished to be re-instated or re-engaged in his former role. When the Respondent’s views in relation to the same were canvassed, they stated that in circumstances whereby the had found that they believed that the relationship of trust and confidence between the parties had dissipated, such an outcome would be inappropriate. In this regard a contract of employment is essentially a bilateral contract between two parties. Where one party evidences a reluctance to engage in this contract, it is inappropriate, in general terms, to order the parties to do so.

Having regard to the foregoing, I find that compensation is the most appropriate form of remedy in the circumstances. In evidence the Complainant submitted that the had some difficulty obtaining work at the similar rate of pay following his dismissal. He submitted that he applied to all other manufacturing businesses in the area, and was called to interview on a number of occasions thereafter. During these occasions, the Complainant would inevitably be asked about the reason he left his previous employment. In evidence, the Complainant stated that he felt obliged to answer this question truthfully, and when he did so he did not progress further in the interview. The Complainant stated that some months following his dismissal he did secure alternative employment as a maintenance person for a popular restaurant chain. Notwithstanding the same, the Complainant submitted that the hours in this role were somewhat irregular, and the rate of pay was significantly less than his former employment. In evidence he stated that there was no realistic prospect of this rate of pay in this role ever matching his former employment and as a consequence, he will suffer ongoing losses as a result of his dismissal.

Having regard to the foregoing, I find that in spite of the Complainant’s efforts to mitigate his losses, he has accrued a significant financial loss as a consequence of his dismissal. Having regard to the same I award the Complainant the sum of €35,000 in compensation.

CA-00038760-002 Complaint under the Employment Equality Acts

In circumstances whereby the Complainant did not pursue this complaint, I find that the Respondent did not discriminate against or victimise the Complainant.

Dismissal, Gross Misconduct, Warning, Mistake