Complainant

Respondent

Parties

Bruno  Seigle-murandi

Roche Products (Ireland) Limited

Representatives

Mark Connaughton SC instructed by Terrance McCrann of McCann Fitzgerald. 

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-00050172-001

03/05/2022

The Complainant is an experienced healthcare professional with an extensive background in pharmacy.

During the course of his career he obtained a doctorate in Pharmacy and specialised in pharmacovigilance, that is the science relating to the detection, assessment, understanding and prevention of adverse effects in medicine.

In August 2018 he began working for the Respondent as their Pharmacovigilance Manager. He was dismissed on the 4th of March 2022.

In May 2019 the Complainant discovered and reported an issue regarding certain medical marketing materials which were being published and distributed by the Respondent. These materials appeared extremely similar to patient information materials which are tightly controlled and regulated by law. In some cases, these marketing omitted key medical information and appeared less explicit about patient risks than the patient information material was. The issue arises that because of the similarity between the two documents a patient or healthcare professional could refer to the marketing materials when they think they are reviewing the approved “risk minimisation” materials.

It is common case that the above materials were detected by the Complainant and were a serious issue. The Respondent with the assistance of the Complainant contacted the HPRA and a HRPA inspection was conducted that summer. Ultimately the materials were recalled and a wider review conducted.

Almost everything else in this matter is in dispute. The relationship between the parties deteriorated over the course of the next two years.

In February 2021 it came to the attention of the Respondent that the Complainant had been sending large volumes of emails out of the organisation. Mostly to a personal email address but also to what appeared to be family members. He was suspended and following an investigation he was dismissed.

Hearings were held on the 22nd of November 2022, the 22nd of February 2023 and the 24th of February 2023, 22nd of May 2023, the 25th of May 2023, the 26th of May 2023.       

The Complainant attended the hearings and was first represented by Darrach MacNamara BL instructed by Sean Costello Solicitors. In the last three days of hearing the Complainant represented himself.

The Respondent attended the hearings represented by Mark Connaughton SC instructed by Terrance McCrann and Jack Larkin of McCann Fitzgerald.  

The Complainant, during his suspension, submitted a complaint under the Protected Disclosures Act for penalisation. This complaint is considered under a separate decision, ADJ-00034384, however this case is essentially a continuation of that dispute as following the Complainant’s suspension he was dismissed by the Respondent and submitted this complaint under the Unfair Dismissals Act. For the avoidance of doubt, I have taken into account facts arrived at in the course of that decision in this decision.

The Complainant submits that just under a year after his appointment as Pharmacovigilence Manger he discovered a serious issue regarding marketing materials which were being distributed by the Respondent.

He raised these issues immediately with his colleagues both locally in Ireland and at a European level. While he was initially not believed by his Irish colleagues their view changed once outside advice confirmed the issue and that the regulator, the HPRA, needed to be informed. Throughout May 2019 he was part of a small cohort of staff who reviewed these issues more widely and liaised with the HPRA to self-report. Because of this his housing benefit, that is his apartment paid for by the Respondent, was removed from him.

On the 24th of May 2019 the Complainant was involved in issuing a response to a series of questions posed by the HPRA following the Respondent’s self-report. As local safety responsible his input should have been key. In earlier drafts of this response, he clearly flagged that the Respondent would recommend recall of the offending materials. However, the final version of this communication as well as a number of underlying excel documents were altered without his knowledge. The recommendation to recall the materials was removed. He only discovered this a few days later when the HPRA reverted to query recall again.

The Complainant immediately challenged what he saw as a misrepresentation of his advice to the HPRA. He felt his colleagues turned on him in response. These interactions were happening in the run up to the resulting HRPA inspection and pressure began to be put on him to say that he had been the one to recommend not recalling the offending materials. He refused. This pressure culminated in a meeting with the then CEO who was clear that he needed to support the team during the inspection. Ultimately, he had little role in the inspection.

Later that year the Complainant was effectively demoted when a new manager was appointed above him. From then on, he was being marginalised in the workplace. He received a poor performance score for communication skills and lack of trust in the team which caused his bonus to be reduced in 2020. He was placed on a performance improvement plan.

Throughout 2020 he suffered through, what he considered to be, a campaign of moral harassment due to his actions in speaking up. He was micromanaged, encouraged to resign by a performance coach and had his role diminished. He formally reported these issues through the internal whistleblowing chain in October 2020 and again received a poor performance rating for 2021.

Throughout this time the Complainant was emailing documents to himself and a number of close family members from his Roche email account. This was necessary to sustain his claims in case he was ever frozen out of the organisation or dismissed, particularly as the Respondent had a history of altering documentation as he discovered in May 2019.

Ultimately this came to pass in February 2021 when the Respondent discovered he had been emailing himself documents and immediately suspended him.

The Respondent dismissed him a year later in what was the culmination of their campaign of penalisation against him.

The Respondent takes any issue relating to regulatory compliance extremely serious. Especially so when it potentially relates to patient safety.

The Complainant joined the Respondent in August 2018 and was a valued member of their team. When he reported an issue, they immediately worked with him and self-reported to the HPRA. The Complainant was actively involved in drafting the responses to the HPRA queries in May 2019 and approved of the contents of the specific communication where they did not recommend recall.

Ultimately recall was a matter for the HPRA and while they did decide that recall was necessary, they were entirely satisfied with the Respondent’s engagement and completed all inspections to their satisfaction. The HPRA considered the matter resolved by September 2019. The Respondent was grateful to the Complainant in flagging the issue with the marketing materials and took his concerns extremely seriously.

In November 2019 the Complainant was given a poor score regarding communication skills in his performance review. He was placed on a performance improvement plan and the Respondent made every effort to assist him in improving his performance. He was assigned an independent external coach and given the benefit of one-to-one meetings. The Complainant stopped engaging in the Performance Improvement Plan in Spring 2020 and the Respondent essentially abandoned the plan rather than try and force engagement.

The Respondent supported the Complainant for flagging the initial issues in May 2019 and reported themselves to the regulator promptly. Not only was the Complainant not penalised but he was frequently treated in a more favourable way than the Respondent’s policies allowed, this was demonstrated in his housing benefit, his health insurance benefit and his being allowed to work remotely from France following other employees being recalled to Ireland.

In October 2020 the Complainant made a series of allegations via the Respondent’s internal whistleblowing channel. The Respondent investigated these thoroughly by assigning a specialist team unconnected to the Irish affiliate. The Complainant’s allegations were not upheld, and this was communicated to him in early 2021.

Shortly after this outcome the Complainant became argumentative on a teams call with a number of other colleagues. In this exchange he revealed that he had been collecting company information. The Respondent IT department did an initial review and discovered that he was emailing out of the organisation frequently and to several different email addresses. In the circumstances they believed that they had to move to suspend him.

Following a thorough investigation the Respondent identified the seriousness of the problem in that 851 emails had been sent by the Complainant to external private email addresses. A large proportion of these were business confidential. The matter was referred to a disciplinary hearing and the decision to dismiss was made by Mr Young who had no prior involvement with the matter.

Throughout this process the Complainant maintained that he was entitled to breach company policy and email information to private email accounts. He has never offered to work with the Respondent to allow them to retrieve the emails or even clarify who had access to them. 

Six witnesses appeared on behalf of the Respondent and gave evidence on oath or affirmation. They were:

Mr Patrick Weston, Compliance Partner.

Ms Kim Kirwan, Regulatory Affairs Manager.

Mr Patrick Lennon, Compliance Manager

Mr Pierre Allen Delay, from CEO Roche Ireland

Ms Alison Muir, Current CEO Roche Ireland

Mr Mike Young, Strategy Cluster Lead

Issues to be determined

The Complainant submissions pose two questions regarding his dismissal.

Was he dismissed for having made a protected disclosure?

If he wasn’t, was his dismissal a “normal” unfair dismissal for the purposes of this act?

In ADJ-00034384 I have already made clear that I do not believe that mass emailing of information to a private email address to be a protected disclosure. It is not even a disclosure. It is just gathering information. As such the Complainant’s dismissal cannot, on the face of it, be as a result of having made a protected disclosure.

The Complainant had made protected disclosures in the past and I must consider the argument that him emailing information outside of the organisation was not the real reason for his dismissal but just an excuse to dismiss him for having made protected disclosures.

Either way I am required to apply a reasonableness test to the reason given for dismissal as well as examine whether the procedures followed were substantially fair. If the Respondent’s case fails on either ground, I will then consider whether or not the unfair dismissal was owing to the Complainant’s previous protected disclosures.

In other words, I believe the Complainant’s submissions have the order of the above questions wrong. I must first consider whether the Complainant was unfairly dismissed and if he was, then determine whether his unfair dismissal was in retaliation for having made a protected disclosure.

Unfair Dismissals Act

It is common case that the Complainant has the requisite service to be covered by the protections afforded under the Unfair Dismissals Act.

Section 6 of the Unfair Dismissals Act outlines that any dismissal is an unfair dismissal contrary to the act, unless there are substantial grounds justifying the dismissal. It is for the Respondent to prove that such grounds exist and that they were the cause of the dismissal.

The Respondent argues they were entitled to dismiss the Complainant as Subsection 4 (b) provides that a dismissal shall not be an unfair dismissal if it results wholly or mainly from the conduct of the employee.

In examining the reasons given for the Respondent’s decision to dismiss, i.e. the conduct of the employee, the approach I am required to take is well established. As outlined in British Leyland v Swift and endorsed in this jurisdiction in Bank of Ireland v Reilly, my role is not to take the place of the Respondent consider whether in my view that the conduct of the Complainant ought to have resulted in his dismissal, but rather whether a reasonable employer might have reasonably dismissed him for the reasons given. An element of discretion is given to the Respondent in this approach by recognising that a band of reasonableness exists within which one employer might reasonably decide to dismiss but another might reasonably decide not to.

Section 6 requires the Respondent to demonstrate not just that “substantial grounds” exist which establish that the dismissal was within the “band of reasonableness” but that the dismissal occurred because of those “substantial grounds.” As such a key issue to be determined in any Unfair Dismissal Act case is whether the “substantial grounds” put forward by the Respondent were properly arrived at, that is arrived at following a fair process.

Investigation

Following an IT review the Respondent found that the Complainant had emailed 851 emails out of the organisation between September 2018 and February 2021. Having completed a general review they found that 351 were likely business confidential.

Out of these a smaller sample of 34 were reviewed in detail and were given to the Complainant as part of the investigation. The Complainant was interviewed and given an opportunity to comment on the emails. The Respondent offered to pay for the Complainant to be represented by a solicitor though he did not take up the offer during the investigation.

Following a review of the 34 emails 9 were classed as business confidential. 16 had potentially personal data concerning Roche employees or third parties, these mostly concerned the Complainant’s views of his colleagues some of which were quite negative. 10 fell into a difficult to determine category such as an internal chat where he and a colleague complained about the company and then agreed to delete the chat.

The Complainant refused to disclose the nature of several email accounts that emails were sent to or state clearly whether he was the only one who had access to them. He clarified in the hearing that these were close family members, but this was not something he was willing to disclose to the Respondent at the time. The Complainant was clear that he felt justified in his actions which were lawful because he had made protected disclosures. He was correct not just in sending the emails but retaining them. He believed he was assisting patient safety and preventing the Respondent from manipulating information.

I see no issue with the above steps taken by the Respondent in investigating the matter. They were substantially fair and the Complainant was given an opportunity to review the evidence and provide a defence. The only potential issue regarding fair process involved the fact that the Respondent did not give the Complainant access to a review of all the emails. In the circumstances I think this was understandable.  Reviewing all 851 emails in an investigation and providing the complainant with an opportunity to comment on each one would have been extremely burdensome. I do not see how providing the Complainant with this opportunity would have resulted in a substantially different outcome or revealed any information that would have aided his defence. If he wished to contradict the Respondent’s evidence on the data breach, he of course had the rest of the 851 emails in his possession as a result of the breach and he could have sought to introduce any one of them if he felt it was necessary.

Reasonableness of the decision to dismiss.

Referring again to the findings contained in decision ADJ-00034384 I would note the following.

The Complainant has advanced no cogent argument that what he was doing was in anyway protected by law. I have already outlined that I do not accept the Complainant’s evidence that the Respondent altered emails to the HPRA without his knowledge and as such I do not accept that he was required to email material out of the Respondent’s organisation to prevent that information being destroyed or altered.

There is a question, despite the numbers of emails being disclosed, as to how serious the breach was and whether dismissal was within the band of reasonableness discussed above. The emails mostly seem to have considered the complainant’s internal grievances and his allegations of penalisation. There is no question of intellectual property being given to a competitor or of the Complainant benefiting personally from the breach. However, as with most dismissal cases, the Complainant’s reaction to the misconduct is as relevant as the misconduct itself.

At the time of his dismissal, the Complainant was adamant that he was entitled to breach company policy, that he would not delete the emails and that he would not disclose who had access to them. I am of the view that his continued refusal to follow employer instructions and adhere to policies puts dismissal squarely within the band of reasonableness.

In the circumstances I am satisfied that the dismissal was not in contravention of this act.

I find that the above complaint is not well founded.