ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009857
Parties:
| Complainant | Respondent |
Anonymised Parties | A Process Technician | Healthcare products and medical devices manufacturer |
Representatives | Glenn Cooper, Dundon Callanan Solicitors | Claire Bruton, BL, instructed by Ronan Daly Jermyn |
Complaint:
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-00012927-001 | 02/08/2017 |
Dates of Adjudication Hearing: 09/11/2017 and 23/01/2018
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced his employment with the Respondent on 19th November 2005 as a Process Technician. The Complainant’s role involved running and maintaining a high volume automated production line to produce good quality medical devices. He was paid €5416.00 gross monthly and worked 42 hours a week. He claims he was unfairly dismissed for alleged gross misconduct. The Respondent asserts that the dismissal was not unfair. |
Summary of Respondent’s Case:
The Respondent rejects entirely the Complainant's allegations and submits that his dismissal was a fair dismissal and carried out in accordance with the Respondent's Workplace Disciplinary procedures and in compliance with relevant legislation and in particular, the Unfair Dismissals Act 1977 – 2015. On commencement of employment, the Complainant was provided with a contract of employment and the Respondent's policies and procedures. He also undertook intensive training in respect of his role. Due to the nature of the Respondent's business a large part of his training focused on health and safety, with the Complainant receiving training on Manual Handling on 26 February 2015. The Complainant was given updated training throughout his employment. He also received training on the Company's Site Access Procedure which confirms that "under no circumstances will any material be removed from the [Respondent] site without written permission. Spot checks may be performed by security on any person on site at any time. The [Respondent] Property Removal Pass- Form Control No [XXX] must be completed and approved prior to any item(s) being removed from site. " The Complainant also completed numerous compliance training course during the course of his employment with the Respondent in respect of this policy. All Employee Policies were available on the Company's Intranet. The Respondent's disciplinary procedure provides that the following is defined as gross misconduct:- · Failing to respect all property belonging to the company; · Using or attempting to use company property or any other property on company premises for any other purpose then that for which it was intended and for which they have authorisation; · Seriously breach the implied term of trust and confidence of the working relationship
The Complainant was suspended on full pay on 18 May 2017 to facilitate the investigation and ultimately summarily dismissed on 15 June 2017. The Complainant's dismissal was on the basis that his actions in removing company IT equipment from a secure cage, amounted to grave breaches of discipline and serious misconduct and that his actions amounted to a breach of the Respondent's policies and procedures, in particular the Site Access Policy. The actions of the Complainant were not part of his duties of employment. Investigation: The disciplinary process which culminated in the Complainant's dismissal arose in circumstances where the Respondent's IT facilities team identified that Company IT equipment was being removed from the IT storage facility, a large secure cage ("the IT Cage"). The IT Cage contains a high volume of hard device IT equipment which is not currently in use by the Company, but is not to be destroyed where it may have a future use. IT regularly catalogue the equipment in the IT Cage to maintain a full inventory of equipment. In order to identify the cause of the missing IT equipment, CCTV footage from the area was reviewed from 13 March 2017 to 15 April 2017 which showed the Complainant on 5 separate occasions, climbing into the IT Cage and removing company computer equipment. LC, Manufacturing Engineering Team Lead met with the Complainant on 18 May 2017 to advise him that allegations of theft and misconduct had been made against him and that he was being suspended with pay while an investigation into the matter was being conducted by Employee Relations. The Complainant was clearly informed that no findings had been made against him at that point in time. On 19 May 2017, Ms KC ER/LR Lead, UK-lreland, wrote to the Complainant via email to invite the Complaint to a meeting to discuss two concerns, namely an allegation of theft of company property and an allegation of engaging in unsafe activities. The Complainant was advised that the alleged behaviour may be in breach of his contract of employment and the Respondent’s Disciplinary Procedure. The Complainant was advised of his right to be accompanied to the meeting. The Complainant was also provided with details of the complaints against him by letter dated 23 May 2017. KC met with the Complainant on 23 May 2017 to advise him that the specific incidents of theft and misconduct were alleged to have occurred on the following dates, 13 March, 18 March, 19 March, 6 April and 15 April 2017. The Complainant was accompanied by his friend, MN to the investigation hearing. The Complaint was shown the CCTV footage in question and confirmed that the issues were of a very serious nature and therefore it was necessary to commence a formal investigation to ascertain the extent and gravity of the issues. The Complainant alleged that the purpose of his being in the mezzanine area was to get parts to fix his laptop. He accepted he did not seek permission to be in the area, he accepted his actions were not warranted, he alleged he did not take the equipment off site and rather destroyed it on site and he admitted to passing a laptop to the security guard. On 30 May 2017 the Complainant was provided with a copy of the minutes of the meeting and on 31 May 2017 the Complaint requested to amend his response to question 16 but otherwise confirmed the notes were reflective of the meeting.
The Respondent's disciplinary procedure provides for the following: (a) A full investigation of the case; (b) The employee may be suspended to facilitate the investigation of the particular case; (c) The employee will be advised of the complaints during the investigation (d) The employee has the right to be accompanied by a work colleague at a disciplinary hearing (e) A disciplinary hearing will discuss the nature of the complaints, the employee will be afforded the opportunity to discuss his/her case (f) The employee will be advised of the outcome of the disciplinary hearing, including the right of appeal (g) The appeal will be conducted by a person at the next level of management as the person who conducted the disciplinary hearing (h) The appeal hearing will consider the grounds of appeal of the employee and the outcome of the appeal will be final and binding.
KC conducted the investigation, together with MW, Manufacturing Manager. There were other individuals interviewed during the course of other investigations for similar issues at the same time.
Investigation report The final investigation report issued to the Complainant on 6 June 2017. The investigation considered two allegations namely: 1. Theft of Company Property; and 2. Misconduct relating to serious breach of safety regulations.
These issues were fully discussed with the Complainant, he was afforded the opportunity to respond to them and his responses were considered in full in the course of the investigation.
(a) Theft of Company Property. The investigators upheld the allegation that the Complainant removed IT equipment without permission on multiple occasions from the locked IT cage, supported by CCTV evidence and admitted to by the Complaint. During the course of the investigation the Complaint also admitted to taking a laptop for a named security guard. The investigation considered the defence of the Complainant that he was using the equipment for the repair of a work laptop as this was not escalated and it was questionable having regard to the volume of equipment involved. The Investigator had regard to the definition of Gross Misconduct contained in the Respondent's Disciplinary Procedure which provides that an employee must not "remove or attempt to remove any article or articles which are Company property, or any individual's property kept on Company premises, without authorisation from their line supervisor/manager. " The procedure further provides that an employee must not "use or attempt to use Company property, or any other property on Company premises, for any purpose other than that for which it was intended and for which they have authorisation. "
(b) That the Complainant committed gross misconduct with regard to a breach of safety regulations and procedures. This allegation considered whether the Complainant had breached site safety procedures by climbing into the IT Cage to remove Company property. During the course of the investigation, the Complainant accepted he breached site safety procedures, his contract terms and the disciplinary procedure in partaking in the physical activity of climbing up, into and leaning into the locked IT Cage. He agreed during the Investigative meeting on 23 May that these activities were unsafe and against all regulations and standards expected of an experienced technician. The Investigator had regard to the definition of Gross Misconduct contained in the Respondent's Disciplinary Procedure which provides that gross misconduct could arise and result in termination of employment for failure to comply with all company policies and health, safety and security procedures. The Investigators noted that the Complainant was fully trained on Manual Handling and had received a certification in this regard in February 2015. The Complainant had also signed off on the relevant procedure, referred to above.
The investigation report concluded that both allegations were substantiated.
Disciplinary hearing On the 9th of June 2017, the Complainant was issued with a copy of the concluded Investigation Report, copies of the Minutes of the investigation meeting, copy of the Disciplinary Policy and advised that the report had been furnished to MC ER/LR Lead and TM, Manufacturing Manager, who would communicate with him going forward. A Disciplinary hearing was held on the 13th of June 2017, chaired by TM and MC was also in attendance. The Complainant was accompanied by RF. At the Disciplinary hearing, TM put the following allegations to the Complainant which were considered during the meeting; (a) Theft of company IT equipment on a number of occasions from the 13th of March to the 15th of April 2017. (b) A reckless disregard for the Complainant's own safety amounting to potential gross misconduct by breaching site safety procedures, his contract of employment and company rules by climbing up, into and leaning into a locked storage cage on a number of occasions from the 13th March to the 15th April 2017. The Complainant was questioned during this meeting and provided with the opportunity to add any additional comments. He was informed in advance that the outcome of the meeting could be disciplinary action up and including dismissal. During the disciplinary hearing, the Complainant accepted that he had taken IT equipment without permission and that he had breached site health and safety procedure. The Complainant asked the company to consider his previous record with the company, the value of the goods taken, previous disciplinary sanctions for breach of safety regulations and the fact that the breach of safety records was not extremely unsafe. These matters were given full consideration at the disciplinary stage-including the comments of the Complainant made by email dated 13 June 2017 after the disciplinary meeting and it was accepted that the Complainant had an unblemished record however, it was also considered that his long service and extensive training history would have confirmed he was fully aware of company policies. The Complainant was invited to an outcome meeting on 15 June 2017. It was considered that notwithstanding the Respondent's consistent focus on health and safety, the Complainant did not demonstrate an appreciation for the seriousness of his actions. Full consideration was given to sanctions imposed for breach of safety regulations by the Respondent in other cases. It was held that those cases were not comparable and the Complainant's case could be distinguished on the basis that there was no unauthorised removal of Company Property in those cases. It was also noted that the equipment was deliberately taken from a locked cage outside the Complainant's normal work area, at quiet times without seeking any permission. The Complainant have failed to give any reasonable explanation as to why he did not seek permission to remove this equipment or follow established company procedures with regard to its removal. In relation to the value of the equipment, it was considered that the Complainant had no way of knowing the value of the equipment and the contents of the equipment and whether they contained company confidential materials. In relation to the Complainant's position that his actions in climbing into a locked cage were not unsafe, regard was had to the fact that the Complainant accepted that he was using unstable surfaces to access the cage and that there were clear and unambiguous breaches of the Company health and safety procedures, his own contract of employment and the company's disciplinary procedure. At the Disciplinary hearing, the Complainant did not dispute this finding, nor did he raise any additional information regarding this point. The hearing was adjourned for 48 hours and subsequently TM issued his letter dated 15th of June 2017 confirming the outcome of the disciplinary hearing. TM was of the view that having considered all the evidence contained in the Investigators final report and having considered all representations made by the Complainant together with all relevant matters, that the Complainant's actions had led to a complete breach of trust and confidence in the employment relationship such that the Respondent was left with no option but to terminate the Complainant's employment with effect from the 15th of June 2017. The decision to terminate the Complainant's employment was made by letter dated 15th of June 2017. The Complainant was informed that he could appeal the decision.
Appeal The Complainant appealed the decision to dismiss and a full appeal hearing was held by JF, Operations Director who had no prior involvement with the disciplinary process on the 3rd of July 2017. The outcome was confirmed to the Complainant by way of letter dated the 10th of July 2017. During the Appeal hearing, the Complainant raised eight grounds of appeal. Each of the grounds of appeal furnished by the Complainant together with the oral submissions made at the appeal meeting were considered prior to the outcome of the appeal. The Appeals Officer having considered all of the evidence determined that while the Complainant's length of service and employment record with the Company were relevant factors, he was of the view that the breach of trust and confidence from the Complainant's actions in this issue had fundamentally eroded the employment relationship and unfortunately outweighed those mitigating factors. Having considered the matter in full, the Appeals Officer found no basis to reverse the decision to terminate the Complainant's employment and found that the decision to dismiss the Complainant was fair and reasonable. The Complainant was paid all accrued entitlements including full salary up to and including the 15th of June 2017 and all holidays owed to him.
The Respondent rebuts the Complainant's claim that he was unfairly dismissed. The Complainant was summarily dismissed, following the fair process, for reasons of gross misconduct, where he was found to have been guilty of gross misconduct in the theft of Company IT equipment on five occasions from the 13th of March to 15th of April 2017 and breached Company site procedures, his contract of employment and company rules in displaying a reckless disregard for his own safety on Company premises. There was a preponderance of evidence to uphold the findings and in this regard reliance is placed on the decision of Pacelli v lrish Distillers 120041 l5 E.L.R. 25.
The Complainant was not singled out in any respect and at the same time as the Complainant's investigation, three other parallel investigations were carried out for similar instances of theft of company property and unsafe behaviour. In all cases the sanction determined as appropriate was summary termination. It is submitted that the procedure as a whole was fair and that the Complainant had received substantial training throughout the course of his employment, such that he would have been well aware that his behaviour was inappropriate. The behaviour displayed by the Complainant is serious that no compensation or redress should be awarded.
Evidence of Mr. MW, Manufacturing Manager who conducted the Investigation. Mr MW confirmed the version of events as presented by the Respondent’s representative. He clarified that the decision to suspend the Complainant was made in order to facilitate the investigation but also to avoid similar incidents which could lead to the Compliant being hurt or cause damage to the Company. Mr MW did not accept the Complainant’s explanation for taking the equipment to fix his laptop. He confirmed that the Respondent has a dedicated IT department dealing with these matters. He stated that the equipment was never recovered but it was not possible to establish whether or not it was removed from the site.
Evidence of Mr. TM, Business Unit Manager who conducted the Disciplinary hearing Mr TM confirmed that the Complainant appeared not to acknowledge the seriousness of the situation and the inappropriateness of his behaviour. He stated that he took all the circumstances into consideration but given the seriousness of the offences and the breach of trust he made a decision to dismiss the Complainant. He stated that given the Complainant’s role in the Company there is a paramount requirement to have a high level of trust. This was no longer here.
Evidence of Mr. JF, Operations Director who heard the Appeal Mr JF confirmed that following his recruitment the Complainant has received a comprehensive training, which took about 3 years to complete. He stated that despite that the Complainant showed total disregard for the Company’s procedures and he did not seem to realise the gravity of his actions. He said that he considered other sanctions but given the gravity of the situation with regret he made the decision to uphold the dismissal.
The Respondent relies on extensive case law including Pacelli v lrish Distillers 120041 l5 E.L.R. 25., Berber v Dunnes Stores [2009] IESC 10, Deegan v Dunnes Stores (Unreported), Hennessy v. Read & Write Shop Ltd UD 192/1978, Allied Irish Banks plc v Purcelll20l2) 23 E.L.R. 189, Doyle v Asilo Commercial Limited [2008] IEHC 445, NM v Limerick and Clare Education and Training Board [2017] IEHC 588, ADJ- 00006103, Burns & Hartigan v Governor of Castlerea Prison [2009] 20 ELR 109,. |
Summary of Complainant’s Case:
The Complainant submits that he worked for approximately 11 years as a Process Technician at the Respondent’s Company. On 18 May 2017 he was brought into a meeting and advised he was being suspended due to allegations of theft and misconduct. The Complainant absolutely denies that he has been guilty of theft or any serious misconduct. He believes that his subsequent dismissal was unfair because the findings against him were incorrect, the penalty imposed upon him of dismissal after 11 years’ service was entirely disproportionate and the process undertaken by the company was unfair and deeply flawed. Following the suspension on 18 May, the Complainant received an email on 19 May requesting that he attends an investigation meeting which then took place on 23 May. An investigation report subsequently issued dated 6 June 2017. By letter dated 9 Jun 2017 the Complainant was called to a disciplinary meeting which took place on 13 June 2017. Following that meeting, he received letter terminating his employment dated 15 June 2017. He lodged an appeal which was heard on 3 July 2017, but the appeal was rejected by letter dated 10 July 2017. The Complainant denies the allegation of theft. He submits that categorisation of his conduct as theft is incorrect and unfair. The categorisation of the safety issue as “the extreme end of unsafe behaviour” is false and disproportionate. Using “demeanour” at hearing as a ground for dismissal is an allegation without substance and is unfair. The Complainant submits that no proper investigation was undertaken with the security guard, although significant emphasis was placed on his involvement. The Complainant was not advised of his entitlement to legal representation at hearing: Lyons –v- Longford Westmeath Education and Training Board [2017] IEHC 272. He was given no opportunity to cross-examine witnesses. Th Complainant submits that the use of CCTV in investigation was illegal and the investigation and disciplinary process is therefore invalid, illegal and unfair: section 2 Data Protection Acts. Penalty of dismissal disproportionate to the alleged misconduct, especially given the Complainant’s long service and the terms of his employment contract. The Complainant originally sought reinstatement as the appropriate remedy. However, on the second day of the adjudication hearing he submitted that compensation is sought. Since August 2017, the Complainant has been receiving income as the director of a company providing engineering services.
The Complainant in his direct evidence stated that he didn’t consider his action as theft but rather “unauthorised recycling”. He confirmed that many times he took parts unauthorised to repair equipment. He added however that he never intended to make profit or sell the items. He said that on many occasions he entered the mezzanine area to switch pumps. In relation to the health and safety breach he stated that he considers himself fit enough, he can judge himself what is safe or not and would consider his action similar to “replacing a bulb at home” or climbing up to the attic. In cross-examination he confirmed that his action was different to switching the pump but he made the assumption that it was safe. He insisted that what he did was not wrong but confirmed that had he known that there is CCTV in the area he would not have done it. When cross-examined, he confirmed also that he did not ask the Respondent to have legal representation at the hearing. |
Findings and Conclusions:
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: ... (b) the conduct of the employee,…” In relation to a complaint of unfair dismissal arising from an employee’s conduct, the relevant legal provisions and the factors to be considered are contained in Section 6 of the Unfair Dismissals Act 1977 including: “(6) 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 (4) of this section or that there were other substantial grounds justifying the dismissal. (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so- (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 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.” I must therefore consider both the substantive issues leading to the dismissal and the fairness of the procedures adopted. The Applicable test to establish whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “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.” An adequate investigation has to be assessed by the standard that could be objectively expected of a reasonable employer as per J Sainsbury Plc v Hitt (2003) ICR 111. In relation to procedural fairness, I am guided by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures). It is not a matter for me to decide on the issue of guilt or innocence of the Complainant. The question for me as Adjudication Officer is whether, following a fair and transparent investigation and disciplinary process, the Respondent’s decision to dismiss was one that a reasonable employer might have made. (C. Hayes v P. Kinsella T/A Kinsellas of Rocklands UD690/2012). Whilst there was no factual dispute between the Parties that on the specified dates the Complainant entered the mezzanine area, climbed up into the locked IT cage and removed IT equipment and on one occasion gave a laptop to a third party, the matter of his intentions and understanding of his actions were strongly disputed. It is not my role to determine the Complainant’s reasoning behind his behaviour but rather whether it was objectively reasonable for the Respondent to form the view that he had not provided a reasonable explanation for his behaviour and to proceed with the disciplinary process. Having considered the evidence before me I find that sufficient grounds existed for the Respondent to initiate the disciplinary process. In relation to the conducting of the disciplinary process, I have reviewed the evidence presented before and at the hearing and I am satisfied that the Complainant was afforded a comprehensive and thorough disciplinary process and was given an ample opportunity to defend his actions. I note the Complainant’s representative assertion that the decision in Lyons v Longford Westmeath Education and Training Board [2017] IEHC 272 places an obligation on an employer to advise an employee to obtain legal representation in circumstance of alleged gross misconduct and possible dismissal. However, I do not agree with this proposition. It is my opinion that the judgement could be seen to confirm the right of an employee facing a possible dismissal to legal representation and right of cross-examining within a fact-finding investigation process. The Complainant confirmed that he at no stage inquired about legal representation attendance or cross-examination. That is despite the fact that he did, prior to the appeal hearing at least, obtain legal advice. The Respondent confirmed that in another disciplinary process related to the matter of missing IT equipment another employee facing similar accusations did request his solicitor to be present and this request was granted. In relation to the matter of the Complainant’s allegation that he was not afforded the opportunity to cross-examine his accusers or those who raised allegations against him I note that the investigation Report notes witnesses interviewed. However, at the hearing the Respondent confirmed that there were no witnesses’ statements or evidence relied upon during the course of the disciplinary process. The Respondent relied on the Complainant’s admission that he breached the procedures. The individuals named were interviewed in relation to parallel investigations carried out for similar instances of theft and unsafe behaviour. In terms of the Complainant’s assertion that no investigation was carried out in respect of the security guard involved I note that the guard was not an employee of the Respondent and I find that the most appropriate course of action in the circumstance was to refer the matter to his employer for further investigation. I must also address the Complainant’s solicitor concern in respect of the use of the CCTV in the disciplinary investigation. The Respondent relied on Pacelli v lrish Distillers and Deegan v Dunnes Stores. An employer needs to be able to demonstrate a strong justification for using CCTV for the monitoring of staff. Such a use would require for example a series of events that would justify the use of CCTV for this purpose. This may include repeated shorts on a till, or the disappearance of stock etc. A system used to control a part of a building for security purposes is justifiable. The use of CCTV surveillance in disciplinary procedures must be justifiably necessary to protect a legitimate aim. I am satisfied that the Respondent installed additional video surveillance cameras after irregularities and loss of IT equipment had been detected. Access to the surveillance footage was limited and it was used for the purposes of the disciplinary process. The policy of the Respondent’s has been amended to outline the use of CCTV. It was confirmed at the hearing by both parties that the notices are displayed at the entrance to the premises highlighting that CCTV is in operation. I am therefore satisfied that the CCTV surveillance can be used for the purposes of these proceedings. In any event, during the disciplinary process the Complainant did not raise the mater of the use of CCTV and he did not deny that the events in question took place. Taking all the above into consideration, I am satisfied that the disciplinary process was conducted in accordance with the requirements of fair procedure, due process and natural justice. The final matter for consideration relates to the proportionality of the sanction and whether or not it falls within the range of reasonable responses that might be expected in the circumstances. I note that the Complainant had over 11 years of employment with no disciplinary record. I note that he completed numerous compliance trainings. I note also that the Respondent's disciplinary procedure provides that the following is defined as gross misconduct:- · Failing to respect all property belonging to the company; · Using or attempting to use company property or any other property on company premises for any other purpose that that for which it was intended and for which they have authorisation; · Seriously breach the implied term of trust and confidence of the working relationship. I find that the Respondent was clear on the matter of theft and/or unauthorised use of the company property. In terms of the health and safety breach the evidence presented shows clearly that the Complainant has received extensive training in that area. The Respondent’s confirmed that adequate time was taken to consider the Complainant’s responses or whether a lesser form of disciplinary action would be appropriate. I find that the Complainant clearly devised a strategy to remove the IT equipment without authorisation by doing so at the quietest times, in the late evenings or at night by climbing into a locked cage. I am satisfied on the balance of probability that he deliberately concealed the fact of the removal of equipment. I do not accept the Complainant’s argument that he was trying to fix IT equipment and avoid delays which would be caused by using services of the dedicated IT Unit. I find that he deliberately removed the items of company property. The Complainant did not dispute the events which led to his dismissal. However, his understanding of what he has done varied to the Respondent’s. He claimed that taking the IT equipment was not theft but “unauthorised recycling”, giving a laptop to a security guard employed by a third party was unauthorised but not something wrong, climbing was unsafe but not very unsafe etc. I note that he denies any wrongdoing and insist that his actions amount to “unauthorised recycling”. I find that his argument that the items were “recyclables” was not his to make. I also note that the Complainant assertion that, irrespective of the procedures it is ultimately his assessment of his fitness and physical abilities which applies in relation to defining what is unsafe in terms of health and safety. However, it is noteworthy that despite not seeing anything wrong in what he has done both in terms of removing the IT equipment and in terms of health and safety matter the Complainant clearly admitted that had he known of the CCTV surveillance cameras he would not have done it. Trust and confidence is essential in all working relationships. The Respondent placed the highest level of trust and confidence in the Complainant. The Respondent must ensure that the medical devices produced are of the highest quality and in his role the Complainant was responsible for ensuring that the procedures are followed. Given the Complainant’s level of seniority and given his role as a Process Technician and the trust that that entails there was a high expectation on him to act in a transparent and acceptable manner. I find that the Complainant was in breach of the Respondent’s procedures, which the Respondent recognised as of paramount importance bearing in mind the nature of the industry. Moreover, I find that the Complainant seemed not to comprehend the importance of these procedures. As a consequence of his actions the Respondent had every entitlement to lose confidence and trust in him. As the Respondent has provided evidence to show substantial grounds justifying the Complainant’s dismissal, I find that it has discharged the requisite onus/burden of proof of showing that the dismissal was fair and have to conclude that the Complainant was fairly dismissed. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this claim in accordance with the relevant provisions. Based upon the reasoning as set out aforesaid I find that the complaint made pursuant to the Unfair Dismissals Act is not well-founded and accordingly, the complaint fails. |
Dated: 3rd May 2018
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Key Words:
Theft, breach of health and safety procedures |