Complainant

Respondent

Parties

David  Geoghegan

Fannin Ltd T/A Fannin Dcc Vital

Representatives

  Self

Niamh Ní Cheallaigh, IBEC

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-00046847-001

26/10/2021

The Complainant has submitted a complaint of unfair dismissal against the Respondent. 

The Respondent rejects the complaint and asserts that the Complainant was dismissed for gross misconduct, following a fair and transparent process, undertaken by the Respondent in accordance with fair procedures and natural justice.

The Respondent submits as follows:

The Complainant was dismissed from his employment with the Respondent for gross misconduct, following a thorough process.

Background to the Respondent

The Respondent is engaged in sales, marketing and distribution of the medical devices, pharmaceuticals and diagnostic products that help healthcare professionals and patients manage illness and restore health.  The Complainant worked in the Community Care Services (CCS) Division as part of the Respondent’s External Engineering team.  The division partners with the HSE to provide homecare services to clients in the community in the form of cleaning, decontamination, quality control, engineering, and logistics.

Background to the Complainant

The Complainant commenced employment with the Respondent on the 27 April 2014 as a CCS External Repair Technician in the CCS Division.   The Complainant was a piece rate employee and was, therefore, paid for the number of jobs performed. 

Background to the Claim

In February 2021 the Respondent received a complaint from its customer, the HSE, relating to the non-attendance of a service call on 2 February 2021. Following a preliminary investigation, it transpired that the complaint received related to the Complainant.

On 8 February 2021 a notice of investigation was issued to the Complainant advising him that an investigation would take place and that he would be suspended with pay for the duration of the process.  The following allegation was the focus of the investigation:

“Deliberately falsifying information of any documentation relative to work procedures relating to service dockets presented to the company for payment and jobs you have marked as complete on the AssetTrak system.”

On 10 February 2021 the Complainant was invited to attend an investigation meeting to be conducted by Mr Seán Myers, Operations & Supply Chain Manager with a HR Advisor in attendance as notetaker. The Complainant was again advised of the allegation against him, advised of his right to representation and was provided with the disciplinary procedure, the company vehicle policy and other documentation relevant to the investigation including completed service reports, AssetTrak data and the vehicle tracker data for the Complainant’s work vehicle.

Three investigation meetings took place with the Complainant. The Complainant declined the option of having a colleague accompany him to the first meeting.  The Complainant brought a colleague to the second and third meeting. As part of the information presented to the Complainant, there were several complaints from the HSE and a number of statements from Fannin staff.   During the investigation the company had to reschedule meetings to facilitate the Complainant; on the first occasion to allow him more time to review the information and on the second occasion as the employee accompanying the Complainant was absent.  

As part of the investigation process the following documentation included but was not limited to:

·         Witness statements from Fannin staff

·         Service reports for the relevant call IDS in question

·         AssetTrak information for the relevant Call IDS

·         Vehicle tracking information for the months of Nov, Dec 2020 and Jan 2021

·         Covid-19 Communication and work instructions

·         Training regarding work procedures since 2015

·         Details of PPM calls logged since Nov including email correspondence

·         Photographic evidence of equipment and service labels

After each investigation meeting the notes were shared with the Complainant to ensure they were an accurate reflection of the discussion. The Complainant responded to the HR Advisor with additional comments on each occasion which were added to the minutes and sent back to him for review.

On 8 April 2021, following completion of the investigation, the HR Advisor wrote to the Complainant enclosing the investigation report and advising him that, based on the facts gathered during the investigation, the investigation team were recommending that the matter be progressed via the company disciplinary process.

Mr Padraig Scully, Engineering Director, was appointed to conduct the disciplinary hearing with the HR Manager in attendance as notetaker. The HR Manager wrote to the Complainant on 12 April 2021 inviting the Complainant to the disciplinary hearing scheduled for 14 April 2021. The HR Manager wrote to the Complainant again on 13 April 2021 to reschedule the time of the meeting for 14 April 2021.

On 19 April 2021 the HR Manager issued the minutes of the disciplinary meeting to the Complainant.   The Complainant responded with comments to the HR Manager on 20 April 2021 to which she responded: “Please note that the minutes are not a verbatim record of what was said during the meeting, but they are intended to accurately reflect the discussion that took place”. In addition, she confirmed: “As these two points raised, were not as discussed in this case the minutes will not be amended. However, I have added your comments about the risk assessment to the record and they will be taken into consideration by the disciplinary lead when making his deliberations”. 

On 21 April 2021, the HR Manager emailed the Complainant inviting him to the disciplinary outcome meeting which took place on 22 April 2021. The Complainant attended with his work colleague.  During this meeting the outcome of the process was communicated to the Complainant, the rationale for the decision and the route of appeal.

Taking everything into consideration Mr Scully determined that the Complainant’s actions:

“amounted to very serious gross misconduct which put clients at risk and occurred a minimum of 20 times (20 clients). You fraudulently, dishonestly and repeatedly filled in service dockets for jobs you did not do, in order, to claim payment (which you were paid for) leading to customer complaints. Your conduct referred to above is a very serious matter, with a significant breach of trust resulting from your actions and therefore I could not apply a sanction short of dismissal. In light, of this, your contract of employment is terminated with immediate effect from the 22nd of April 2021.”

On 26 April 2021 the HR Manager emailed the Complainant the outcome letter which confirmed his employment termination date of 22 April 2021. The outcome letter also acknowledged that the Complainant had been paid up to and including 30 April 2021 but that the Respondent would not recoup the additional money. The letter also confirmed that accrued but untaken annual leave would be processed in the May 2021 payroll. 

On 27 April 2021 the Complainant lodged his appeal to the disciplinary sanction.

Mr Pat Tracey, Group Operations Director was appointed to conduct the appeal along with the Interim HR Manager in her capacity as notetaker. The interim HR Manager wrote to the Complainant on 30 April 2021 inviting him to the disciplinary appeal meeting on 5 May 2021.  The appeal meeting took place on 5 May 2021 as scheduled.  In attendance at this meeting were the Complainant, his work colleague, Mr Tracey and the Interim HR Manager.

On 14 May 21 the Interim HR Manager emailed the Complainant a copy of the meeting minutes for his review.  The Complainant responded to confirm he was “happy and in agreement with them and that he had nothing to add”.

On 26 May 2021 the Interim HR Manager emailed the Complainant confirming that Mr Tracey upheld the decision to dismiss the Complainant and that the Complainant had fully exercised his right of appeal under the company’s disciplinary procedure and the decision was final.  Also attached to the letter were the appeals report and the minutes of the meeting.   

Respondent’s Position 

Section 6(4) of the Unfair Dismissals Acts 1977 states:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:   

   b. the conduct of the employee,  

The Respondent submits that it acted in accordance with Section 6(4) and terminated the Complainant’s employment due to very serious gross misconduct which put clients at risk and occurred a minimum of 20 times (20 clients). The Complainant fraudulently, dishonestly and repeatedly filled in service dockets for jobs he did not do in order to claim payment which resulted in customer complaints. 

In the case of a Worker v an Employer ADJ-00002385, the Complainant was dismissed for falsifying a test report. The dismissal was deemed a fair dismissal and as such the Adjudicator noted:

“The Complainant falsified a critical test report and also attributed these test findings to another employee. This put potential business and the safety of people at risk if the product was launched based on these test findings. I believe the bond of trust Irrevocably broke down between the Complainant and the Respondent as a result of his actions. I believe the Complainants points about his two grievances raised to be a non-issue in his dismissal. The Complainant may have had what he believed to be reasonable grounds and support for falsifying the test report, however these were misguided and unfounded. Overall, I find that there were substantial grounds justifying the dismissal of the Complainants under section 6.1 of the Act and that dismissal was fair and his claim for unfair dismissal fails’’.

In the case of Mullane v Honeywell Aerospace Ireland Limited, UD 111/2008, the Tribunal sets out quite clearly the requisite remit of the Tribunal and the burden which must be demonstrated by the Respondent in the matter at hand today:  

“The Tribunal is not required to determine whether the Complainant did or did not carry out the alleged act […].  The Tribunal’s function is to establish whether the respondent has proven that the dismissal was not unfair, having regard to the terms of the Unfair Dismissals Acts 1997 [sic] to 2001.  For this to be established the Tribunal must be satisfied that the alleged act […] was fully and fairly investigated by the respondent, that the investigation and disciplinary process respects the rights of the Complainant, that the conclusion that the offending act had been perpetrated by the Complainant was reasonable on the balance of probabilities and that the dismissal was a proportionate response within the band of sanctions which could be imposed by a reasonable employer.”   

Each of these criteria outlined by the Tribunal will be examined in turn.  

Fair procedures  

Firstly, the matters were “fully and fairly investigated” and, at all times in the process, the Complainant’s rights were upheld. Drawing on SI 146/2000, the rights have all clearly been upheld:   

·         The Complainant was made aware of the allegation against him and was always aware that the matters were being considered under the disciplinary procedure, and the potential seriousness of the outcome.  

·         The Complainant was provided with an opportunity to respond fully to all allegations against him. There was a thorough investigation process, and there was a comprehensive disciplinary hearing held where the Complainant was provided with a full and fair opportunity to present his case and to influence the decision.  

·         The Complainant was at all times advised of his right to representation.  

·         The Complainant was afforded a fair and impartial determination of the issues. All relevant information and evidence pertaining to the matter were taken into consideration and the Respondent considered the situation thoroughly before reaching a conclusion. Furthermore, the parties who were involved in the decision-making process were impartial and not previously involved with the process.  

·         The Complainant was advised of his right to appeal the decision, which he utilised.  

Conclusion based on the “balance of probabilities”  

It was “reasonable on the balance of probabilities” and the evidence available for the Respondent to conclude that the Complainant had carried out an act of gross misconduct. No reasonable or sufficient explanation could be provided by the Complainant throughout each stage of the process regarding the allegations.

A “proportionate response”  

Finally, the dismissal was “a proportionate response within the band of sanctions which could be imposed by a reasonable employer”.  The Respondent contends that this sanction was proportionate in light of the severity of the matter.  No reasonable employer could be expected to continue to trust an employee who carried out acts like this, and who was fully trained in the processes and was well aware of the procedures in place.  

It is the Respondent’s position that the Complainant’s actions amounted to gross misconduct, and it was no longer able to trust the Complainant.  In his role as an External Repair Technician, the Respondent placed a lot of trust in the Complainant to comply with company policy and procedures. It is the Respondent’s responsibility to ensure that it employs trustworthy staff, who follow procedures and who would not carry out acts of misconduct as serious as this. This incident has irrevocably broken down the relationship between the Respondent and the Complainant. This was a serious breach of the trust and confidence that the Respondent had in the Complainant to carry out his role. It is the Respondent’s position that any lesser sanction would not be appropriate for an incident as severe as this one.   

When considering what sanction to apply, the Respondent had regard to the seriousness of the allegations and the representations made by the Complainant within the process itself.  This position has been upheld by the Tribunal on a number of occasions as justifying dismissal as a reasonable sanction, including in Moore v Knox Hotel and Resort Ltd, UD27/2004, where the Tribunal stated that:  

“[The Complainant’s actions] destroyed the respondent’s trust and confidence in the Complainant and rendered the continuation of the employment relationship impossible, thereby justifying her […] dismissal”.  

In the case of O’Callaghan v Dunnes Stores, UD54/2012, the EAT was satisfied that the sanction of dismissal was fair, and it found that:

“Trust and confidence were essential elements in the employment relationship. Breaching sales and refunds procedures amounted in and of itself to serious misconduct.”

The Respondent relies on the precedent established in Looney & Co. Ltd v Looney, UD 843/1984 where the EAT found: 

“It is not for the Tribunal to seek to establish the guilt or innocence of the Complainant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.” 

The Respondent contends that the actions of the Complainant contributed wholly to his dismissal. Accordingly, it is the Respondent’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts, 1977-2015.  This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council, UD 43/1978, where the Tribunal did not award any redress to the Complainant in light of his inappropriate actions. 

Direct evidence of Seán Myers, Operations and Supply Chain Manager

Mr Myers explained that the Respondent had a maintenance contract with the HSE to maintain patient equipment such as powered wheelchairs, beds, etc.  The Complainant was employed as an External Repair Technician.  The Complainant was paid based on the number of services visits he carried out and was guaranteed a minimum of three jobs per day. 

Wage payment issues arose in 2018 and 2019 due to an error with the payment system. The Respondent deemed that the matter had been closed.  Mr Myers said that he had a very good relationship with the Complainant, and he did not believe that there were any outstanding issues arising from the payment difficulties.  Mr Myers confirmed that the Complainant did not raise any grievance in relation to the payment issues.

In November 2020, the Respondent received a complaint from the HSE on behalf of a client that their wheelchair had not been serviced.  He spoke to the Complainant and came to the conclusion that a mistake had occurred.  The Complainant received non-documented counselling. No further issues arose. 

In February 2021, the Respondent received a call from a customer that their equipment had not been serviced for two years.  A number of other complaints were also received around the same time.

HR tasked Mr Myers with acting as lead investigator.  Mr Myers said that his role was not to dismiss anybody, it was merely to gather facts. 

The Complainant was informed of the allegation on 8 February 2021 and suspended on the same day.  The first investigation hearing took place on 11 February 2021.  The Complainant was informed that he was entitled to representation.  The Complainant was given the opportunity to review unredacted documents. 

HR clarified to the Complainant that the minutes of the meeting could not be amended but any notes he wished to add would be included as an appendix to the minutes.

As part of his investigation, Mr Myers examined vehicle telemetry data; service certificates from the Complainant; the web-based software used for recording service visits and complaints from the HSE.

At the initial investigation meeting, Mr Myers examined records relating to five clients in total in an effort to ascertain if calls to clients were completed.

Mr Myers said that parts were found in the Complainant’s work vehicle which should have been used to complete a service call on a hoist.  Mr Myers decided to carry-out a look back on preventative maintenance.  He examined 215 calls across 12 engineers.  Two engineers, including the Complainant, were found to have issues.

As the investigation process went on, an increasing number of service calls were considered.  In cases where there was match between a closed call and the vehicle telemetry, the call was not included in the investigation. 

In a number of service calls, a clear breach of procedures was evident.  The completion docket was issued, and the engineer received payment, but the work had not been carried out.  These breaches were backed up by service stickers which were outdated.  Hoists should be serviced every six months.

Mr Myers confirmed that there was no specific documentation in relation to the Complainant’s role but there were known work practices. The Complainant should have known how to carry out the duties of an engineer.  Mr Myers pointed out that some of the jobs completed by the Complainant were done properly, so it was clear that he knew how to do his job.

During Covid, updates to work practices were communicated by email and these were provided as part of the second investigation.  Mr Myers said that there was constant communication via email.

The investigation identified 20 calls where a clear breach in procedure had occurred, and they had not been completed.  The situation in relation to a large number of calls was unclear. 

Mr Myers said that the Respondent’s clients are people who are ill.  The Respondent was contractually obliged to ensure that their equipment was in a safe condition. 

Cross-examination of Mr Myers by the Complainant

Mr Myers confirmed that Mr Scully, who carried out the disciplinary hearing, saw the Complainant’s comments on the minutes of the investigation meetings.

The Complainant pointed out the percentage of calls where an issue had been identified was very low.  Mr Myers responded that there was a 0% tolerance of risk to patients who used their equipment.

The Complainant asked Mr Myers if he thought that the telemetry data was reliable. Mr Myers said that where the vehicle telemetry supported the Complainant’s assertion that the service had been carried out, those calls were eliminated from the investigation. 

Direct evidence of Padraig Scully, Director CCS

Mr Scully confirmed that he had no input into the investigation.  He further confirmed that the Complainant was advised of the allegations against him, and he was made aware of his entitlement to representation prior to the disciplinary meeting. 

Mr Scully said that he did not consider a sanction short of dismissal as, from reading all the evidence, he came to the view that the Complainant was guilty of gross misconduct.  The Complainant had closed twenty service calls but had not completed the service.  This meant that twenty vulnerable people in the community were at risk.

Cross-examination of Mr Scully by the Complainant

The Complainant asked Mr Scully how he went from a clerical error to something that was deliberate and fraudulent.  Mr Scully replied that it was fairly clear cut and obvious. He saw the evidence.  The Complainant had been filing out documents since 2014.

Direct evidence of Pat Treacy, Group Operations Director

Mr Treacy heard the appeal.  Prior to the appeal the Complainant was informed that he was entitled to representation.  Mr Treacy confirmed that he was provided with all the notes to the minutes made by the Complainant and that these were taken into account when hearing the appeal.

In response to an allegation from the Complainant, Mr Treacy said that, in his opinion, he did not ignore anything.  Mr Treacy confirmed that, at the end of the appeal meeting, he asked the Complainant if there was anything else he wanted to say.  Mr Treacy said that he addressed all issued raised by the Complainant. 

Mr Treacy referred to an email to him from Mr Scully dated 29 March 2019 which the Complainant had alleged showed that Mr Scully was trying to get rid of him.  Mr Treacy said that the purpose of the email was to alert him that the company had reached the trigger point where the workload meant that an additional engineer was required.  Mr Treacy said that it was part of an ongoing conversation about staffing.

Mr Treacy said that he did not overturn the decision to dismiss the Complainant.  The Respondent is responsible for ensuring that clients of the HSE are safe.  The certification that engineers sign is a very serious matter. 

Cross-examination of Mr Treacy by the Complainant

Mr Treacy explained that their business was not a percentage game.  If a service was certified, the Respondent had to be able to stand over it.  There was zero tolerance for errors.  They could not have a situation where a 70-year-old was being lifted in a hoist and an error occurred.

Mr Treacy said that Covid was well managed by the Respondent.  It took advice from the HSE, and every reasonable measure was put in place.  No employee of the Respondent got Covid at work. 

Conclusion

The Respondent submits that the decision to dismiss the Complainant was taken based on a full and fair investigation and after full consideration of the totality of the evidence.  The Complainant was afforded every opportunity to respond to the allegation against him. All principles of natural justice and fair procedures were afforded to the Complainant including:  

·         The Complainant was notified in writing of the allegations against him.  

·         He was afforded a full and fair opportunity to consider and respond to these allegations.

·         He was provided with all evidence against him including the investigation report.

·         He was provided with copies of evidence and was given opportunities to have his case heard.  

·         The Complainant was afforded the right to representation at all stages.  

The bond of trust between the Respondent and the Complaint had irrevocably broken down.  The Respondent believes that the decision reached was appropriate and proportionate in the circumstances and that any other reasonable employer would have reached the same conclusion.

The Complainant submits that for seven years he enjoyed a very good relationship with his employer.  He took a lot of pride in his work and earned the support and respect of his line manager, Seán Myers.  He was nominated by his peers for multiple awards and regularly received positive feedback from clients.  The Complainant submits that he had an unblemished HR record right up until the months prior to his dismissal.  The Complaint said that two incidents concerning the calculation of his wages led to friction with management.  The Complainant contends that both of these incidents were a turning point in how he was treated by the Respondent and by managers within the business. 

The Complainant referred to two emails, both of which were exhibited at the hearing, which were sent shortly after the second incident.  The first is an email dated 29 March 2019 from Padraig Scully to Pat Treacy concerning the repayment terms of the Complainant’s wage overpayment.  In the email Padraig Scully’s wrote: “We have begun the recruitment process”.  The Complainant suggests that this clearly shows the Respondent’s intention to start a recruitment process for his replacement. 

The second email was from his new supervisor DL who accused him of gross misconduct in an email to HR on 4 February 2021.  The Complainant contends that this email deprived him of due process and prejudiced both the investigation and the appeal hearings that followed. 

Appeal Failures

There was one original complaint in early November that was dealt with on an informal basis.  Following this DL challenged 3 other jobs, it was noted by Pat Treacy in the appeal.

 “PT understands that it was brought back up as soon as a pattern began to appear in terms of the complaints or issues.” 

·         “PT said they were recognised as unclear. He said there was one clear breach in November, ten were unclear breaches and were not allowed.”

 The Complainant contends that these comments demonstrate that older complaints were revisited (despite being clarified to the satisfaction of Seán Myers) to suggest that there were widespread issues.  The Complainant submits that it also shows that Pat Treacy agreed the other breaches were unclear.  

The Complainant contends that issues with 33 other jobs were then introduced into the proceedings, none of which could be substantiated.  The Complainant also submits that the Respondent attempted to solely rely on vehicle telemetry which was proved to be inaccurate or irrelevant (the day on which a job was closed did not always match the day on which the client was visited). 

The Complainant submits that the appeal failed to recognise the shortcomings in the vehicle telemetry which was proven by him to be inaccurate and the failings in how jobs were recorded by the office and by engineers.  The assumption that jobs were always closed on the day of the final visit is incorrect and he explained in great detail during the investigation hearings how COVID disrupted this as a standard practice.  The Complainant submitted that he often completed all admin out of hours late in the evenings or even weekends due to concerns with bringing contaminated workbooks into clients’ houses and his own home.

His new supervisor, DL was newly promoted at the start of this investigation, and it is the Complainant’s contention that he was guided by senior management to commence a process of effecting the Complainant’s dismissal.   The Complainant referred to an email dated 4 February 2021 from DL to HR where DL stated that the Complainant was guilty of gross misconduct.  The Complainant contends that this was clearly a pre-emptive opinion that was obviously influenced by senior management.  It was a statement and opinion voiced before the matter was investigated and before the Complainant was afforded any opportunity to address any concerns.  

Padraig Scully and Pat Treacy were both tasked with sanctioning the final dismissal and managing the appeals process.  It is the Complainant’s contention that they were the driving force behind the decision to constructively dismiss him due to the earlier conflicts surrounding wage payments.

The Complainant submits that he was not afforded due process in the investigation hearing or in the appeals process.

Falsification / Misrepresentation of record taking during process

The Complainant submits that Pat Treacy, who conducted the appeal, recognised that the minutes were incomplete.  The Complainant submits that the appeals officer completely ignores the fact that there were concerns raised with the repeated actions of Séan Myers and DF, the note taker at the investigation meetings, in their failure to communicate an accurate record of the agreed minutes.  The Complainant submits that an attempt was made by Seán Myers and DF to portray a false written record of what occurred at these meetings.  The Complainant submits that Pat Treacy was not aware of the Complainant’s concerns with regard to the accuracy of the minutes of the investigation meetings.  The Complainant submits that the original notes were never shared with him despite a request for same. 

The Complainant submits that the minutes that he was pressurised to sign did not accurately reflect how the meetings were conducted or what was stated at the meeting.   The Complainant contends that there were multiple misstatements and omissions which HR refused to amend.  At one point, he was advised the minutes “cannot be changed”.  The Complainant submits that he had to revert to sending multiple emails to ensure there was a paper trail of important omissions and misstatements, and that the minutes ignored key points in an attempt to support a predetermined decision of gross misconduct.

The Complainant submits that DF stated that: “The minutes cannot be amended after the fact, but I have copied over and added your supplementary comments.”

The Complainant contends that this proves that there was a complete refusal to rewrite the minutes of the meeting as it occurred, the concession to copy his follow up notes only occurred after he protested that the process was a farce if they were not going to record accurate and factual minutes.  The Complainant contends that the appeals officer failed to question why his repeated concerns were not taken on board.  

The Complainant contends that he later raised the point that Seán Myers had a vested interest in assassinating his character as he was complicit in many of the key failures which were identified in the “root causes of complaints” which were outlined in the proceedings.

The Complainant contends that there were multiple attempts to record the minutes in a manner that was favourable to the investigating team and senior management.  He contends that he was wrongly advised that the minutes could not be corrected.  The Complainant contends that, only for his multiple repeated email correspondence, the final minutes would have completely misrepresented what had occurred.

The Complainant contends that he was frustrated at every turn to ensure a correct written narrative was maintained.  He contends that this was not how an independent process would normally be run and it was never acknowledged by Padraig Scully or Pat Treacy. 

Appeal Failures

The Complainant submits that the appeals officer completely brushed over the following fundamental points, despite the fact that he was challenged with not following company procedures.

·         There was no agreed standard operating procedure (SOP).

·         There was no training provided in the previous 18 months (despite operating in a COVID environment with extremely vulnerable clients).

·         There was never any Risk Assessment carried out for the role and duties of a Field Engineer, as acknowledged by Seán Myers, either pre or post COVID.

·         There was a complete lack of understanding from management on the challenges faced by Engineers.  The company prepared a risk assessment for staff in head office but not for those visiting vulnerable clients.

The Complainant further contends that the Respondent did not carry out any risk assessment for the engineers who were tasked with operating at the height of a pandemic with no regard for their welfare or the sick and vulnerable people that they were visiting.  The Complainant submits that this resulted in mistakes being made with some dockets which were blown completely out of proportion.

The Complainant contends that none of these points were considered during the investigation hearing, nor were they given due consideration during the appeal hearing. 

The Complainant contends that Pat Treacy and Padraig Scully ignored these factors as they were supportive of his dismissal due to earlier conflicts over wage payments.

Bias on lead investigator and operating in a COVID environment

During the original investigation and the subsequent appeal, the Complainant asserted that it was wholly inappropriate for Seán Myers to participate as the lead investigator in any formal investigation as he would have been personally responsible for many of the shortcomings which the Complainant identified during the investigation process:

·         The lack of any Standard Operating Procedure, despite being told that he wasn’t following procedure during the investigation.

·         The lack of any training in the 18 months prior to his dismissal.

·         The complete absence of any support from management during peak COVID.  The Complainant was operating in extreme circumstances when he was required to call to nursing homes at the height of COVID.

·         The lack of any formal risk assessment for his role as Field Engineer, either pre COVID or more importantly during the pandemic.

·         The originating areas of conflict between the Complainant and management relating to errors surrounding wage payment processing.  Seán Myers would have been directly responsible for the effective processing of work dockets.

The Complainant contends that Seán Myers could never have conducted an investigation that was fair and balanced due to the natural bias that existed.  He contends that he was never afforded a process that afforded him natural justice.  The Complainant asserts that this key point was never acknowledged during the appeals process despite the many multiple failings noted by him.

The Complainant contends that the investigation and the appeals process were not independent of each other, and the entire process was manufactured to support a predetermined decision to dismiss him from the company at any cost.

The Complainant contends that the Respondent has attempted to portray a process that was properly structured and executed but, in his view, natural justice was completely absent right across the process, and this was very obvious from the way the Respondent ignored its key failings.

The Complainant submits that, during Covid, he did not bring his document book into clients’ homes due to the risk of infection and, therefore, there was often a gap between doing and logging a call.  The Complainant submits that he might not have visited a client on the day he said that he would and that he might have closed a call but not carried out the visit.  This may have resulted in a clerical error on his part when a docket was submitted in error.  The Complainant submitted that what had occurred was a mistake in paperwork and nothing else.  The Complainant submits that Covid changed everything and that he only had a problem during Covid due to lack of procedures.  He had seven good years before that.

The Complainant submits that he was never afforded the right of representation at the suspension meeting but that he did have representation at the investigation meeting.

The Complainant said that the decision to dismiss him was made at the beginning of the process and everything worked back from that.

In relation to the parts in the van, the Complainant said that he wrote out the docket prior to carrying out the service.  Then the customer rang to say that he would not be at home.  The Complainant put the docket at the back of his clipboard.  He did not see the spare parts in the van.  He closed the call off on AssetTrak in error.

The Complainant said that all the alleged incidents of misconduct were mistakes which only occurred during Covid.

The Law

The Unfair Dismissal Act, 1997 stipulates that:Section 6(1)

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

Section 6(4)

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair, and Section 6(7) provides for an Adjudication Officer to have regard to

“(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 by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act (to provide written reasons when requested) or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the 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 - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”

In line with the above, my role, as the Adjudication officer in this case, is therefore not to establish the guilt of innocence of the Complainant but rather to decide if the Respondent acted reasonably in the circumstances. This view is supported by the EAT decision in Looney and Co Ltd. V Looney UD 843/1984:

“It is not for the EAT to seek to establish the guilt or innocence of the Complainant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

Dismissal as a fact is not in dispute and, therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was not unfair. Dismissal in this case, as set out in the outcome of the disciplinary meeting by letter dated 26 April 2021, arose as a result of the Complainant’s actions which “amounted to very serious gross misconduct which put clients at risk and occurred a minimum of 20 times (20 clients).  You fraudulently, dishonestly and repeatedly filled in service dockets for jobs you did not do, in order to claim payment (which you were paid for) lead to customer complaints.  Your conduct referred to above is a very serious matter, with a significant breach of trust resulting from your action and therefore I could not apply a sanction short of dismissal.”      

Procedural Framework

The first matter I must decide is if the procedural framework adopted by the Respondent is this case was in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures and emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice provides that best practice entails a number of stages in the discipline and grievance process as follows:

·         That employee grievances are fairly examined and processed;

·         That details of any allegations or complaints are put to the employee concerned;

·         That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·         That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and,

·         That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

My role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be expected in such cases considering the bar on what constitutes gross misconduct justifying dismissal is a very high one.

Suspension

I note the Complainant’s submission that he was not offered representation during the suspension meeting.  I am of the view that nothing turns on this as it would not be the norm to be offered represented at a suspension meeting.

Investigation

The Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 sets out my remit in relation to disputes regarding internal investigations as follows:

“It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

I note that three investigation meetings were held – on 11 February 2021; 2 March 2021 and 16 March 2021.  I also note that the Complainant was given an opportunity to review the documentation on which the investigator relied in advance of the second and third meetings.  Based on the facts gathered during the investigation, the investigator concluded that there were clear breaches of procedure on 20 occasions and that the matter should proceed to a disciplinary process.  I note that service calls, where it was not conclusive that a breach of procedure had occurred, were omitted from the final tally of calls to be queried.

In his submission and in his direct evidence, the Complainant asserts that he was not afforded due process during the investigation because he was not permitted to make amendments to the minutes of the investigation meetings to reflect his view of how the meetings were conducted and that his concerns about the lack of procedures, the absence of risk assessments, Covid-19 and health and safety were ignored. 

In considering the question of fair procedures, I note that the High Court in its determination in the case of Shortt v Royal Liver Assurance Ltd (2008) IEHC 332 Laffoy J outlined that a central consideration to a fair process is whether or not any purported breach of natural justice was “likely to imperil a fair hearing or a fair result”.  I also note the determination of the Employment Appeals Tribunal in the case of Murphy v College Freight Ltd (UD867/2007) where the EAT noted that a disciplinary procedure does not need to be “a counsel of perfection” but rather “they must be fair”.

I am satisfied that the Complainant’s concerns about the minutes of the meetings was properly addressed by the appeals manager, Mr Treacy, who confirmed in his direct evidence that he was provided with all the notes to the minutes made by the Complainant and that these were taken into account when hearing the appeal.  Based on the totality of the submissions made by the parties and the evidence adduced at the hearing, I am of the view that nothing turns on this and that there were no procedural shortcomings in the investigation process which were likely to “imperil a fair hearing or a fair result”. 

In relation to the Complainant’s evidence that the outcome of the investigation had been pre-determined as a result of an email from his supervisor, DL, in which he categorised the Complainant’s conduct as gross misconduct, I am of the view, from the totality of both the oral and written evidence adduced, that a thorough investigation process was conducted by Seán Myers with no involvement from DL.  I note that Seán Myers relied on documentation provided by numerous individuals when carrying out his investigation and that he received support from HR. 

Appeal

I note the Complainant’s submission that the Pat Treacy did not take account of his concerns about the lack of written procedures; the lack of training; the absence of risk assessments for engineers; and the impact of Covid-19.  The Complainant’s position is contradicted by Mr Treacy’s Appeal Decision Report which explicitly references and addresses the Complainant’s concerns.

Substantive matters

I must now decide if the decision to dismiss was a reasonable and proportionate response to the Complainant’s conduct. 

The concept of reasonableness is a core tenet of the Unfair Dismissals Act.  The general approach of tribunals to cases of dismissals for conduct was set out in Noritake (Irl) Ltd v Kenna UD 88/1983 as follows:

1.       Did the company believer that the employee misconducted himself as alleged?

2.       If so, did the company have reasonable grounds to sustain that belief?

3.       If so, was the penalty of dismissal proportionate to the alleged misconduct?

In the case of O'Riordan v Great Southern Hotels UD1469/03 the EAT held that: "In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrongdoing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

In Bunyan v United Dominions Trust, the EAT endorsed the following view: “the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved”.

The issue was further considered in Bank of Ireland v Reilly, cited above. At paragraph 56 Noonan J. stated:

“In assessing the reasonableness of the employer’s conduct in relation to dismissal herein, it seems to me that such an assessment must have regards to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response.”

The Complainant claimed that the Respondent’s attitude towards him changed as a result of the issues with his wages which occurred prior to the incidents which gave rise to the disciplinary process.  However, he did not provide any persuasive evidence to support his contention.  Nor did he provide any evidence to support his contention that Mr Myers was biased against him as a result of the earlier issues with his wages.  I am more inclined to accept the evidence of the Respondent that the investigation into the Complainant’s service calls was prompted by a complaint from the HSE and a complaint from a client.

In truth, none of the issues raised by the Complainant – Covid-19; standard operating procedures; training; and risk assessment - have a bearing on the outcome of this case.  Put simply, the Complainant marked service jobs as complete and closed on the system when they had not been completed.  The Complainant received payment for these jobs. The Complainant confirmed at the hearing that he himself entered the data on the tracking system in relation to his own service calls.  Nobody else logged his service calls.  From the evidence adduced at the hearing, it is clear that the Complainant knew how to correctly enter data in relation to completed jobs as not all of his jobs were incorrectly logged.

The Complainant has categorised the mistakes he made as clerical errors.  This, however, does not explain how he had equipment in his van which should have been used for a job which he did not complete but for which he had claimed payment.  His suggestion that he did not see the parts in the van stretches credibility. 

Despite the assertions of the Complainant to the contrary, it is clear from the minutes of the investigation and disciplinary meetings, that the members of management who were involved in the disciplinary process were not solely reliant on the vehicle telemetry but also relied on reports from engineers who called to clients’ houses to verify if the jobs which had been logged as completed by the Complainant had, in fact, been completed. 

The Complainant protested that any errors in the logging of his service calls were clerical errors and should not have been subject of a disciplinary process.  He referred to a margin of error.  The Complainant did not appear to accept that he was working in a safety-critical sector where there was zero tolerance for errors as succinctly explained by Mr Treacy in his direct evidence when he said that “their business was not a percentage game.  If a service was certified, the Respondent had to be able to stand over it.  There was zero tolerance for errors.  They could not have a situation where a 70-year-old was being lifted in a hoist and an error occurred.”

In this regard, I also note the evidence of Mr Scully when explaining why he had not considered a lesser sanction than dismissal he said that “the Complainant had closed twenty service calls but had not completed the service.  This meant that twenty vulnerable people in the community were at risk.”

Trust and confidence are essential in all working relationships. There is an implied term in every contract of employment that requires both employers and employees to refrain from behaving in such a way as to destroy the relationship of trust and confidence. As a consequence of the Complainant’s actions, the Respondent had every entitlement to lose confidence and trust in him. I am of the view that any employer faced with the same circumstances to those that pertained in this case would have acted in the same way.  I, therefore, find that the conclusion reached by the Respondent in relation to the conduct of the Complainant was reasonable in all of these circumstances.

In the light of all the foregoing, I find that the Respondent acted reasonably in applying the ultimate sanction of dismissal and, therefore, acted as a reasonable employer would have in such circumstances.

Having considered the submissions of both parties, and the evidence adduced at the hearing of this complaint, I declare that the dismissal of the Complainant was both procedurally and substantively fair.  I decide, therefore, that this complaint is not well founded.

Gross misconduct – reasonable sanction