ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023564
Matheson Solicitors Mr Kevin Bell BL
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 25/11/2019
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
In accordance with Section 41 of the Workplace Relations Act, 2015 and 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. The complainant’s representative sought an adjournment at the commencement of the hearing for another day on the basis that he had not the opportunity to go through the appendices with the complainant. This was a Monday morning and he had received the Respondent’s submission on the previous Friday afternoon. The respondent objected to the adjournment on the basis that the salient facts were not at issue and that the basis of the complainant’s case was that the sanction of dismissal was disproportionate.
I offered a 45-minute adjournment to the complainant’s representative to allow consultation with the complainant on the appendices, but this was refused. The Complainant’s representative was informed that prior to opening his case, the Respondent would open his. There being two witnesses to be heard, the natural elapse of time would necessitate an adjournment of the case to another day The Complainant refused all options and chose to leave before the Respondent opened its case.
I decided to allow the hearing to continue despite the departure of the Complainant. The basis of my decision was, despite receiving the submissions, two days previously, on a Friday afternoon the Complainant’s representative was offered a reasonable period on the day for consultation. He was also advised that adjournment would naturally arise before the Complainant was requested to open his case.
The Complainant was dismissed for gross misconduct by the Respondent pharmaceutical company. He is claiming unfair dismissal on the basis that the dismissal process was unfair, and the dismissal sanction was disproportionate. He submits that he had given 15 years loyal service to the Respondent company. His role was that of Production Team Leader. His monthly gross pay was €8416.29. His net monthly pay was €4766.54, and he had worked 39 hours per week.
The Respondent submits that the decision to dismiss was fair, given that the Complainant had admitted to all the actions of which he had been accused. He had already been on a final written warning and the decision to dismiss was a reasonable one after a robust and fair three stage investigation by independent managers.
Summary of Respondent’s Case:
The Respondent is a manufacturer of pharmaceuticals. The Complainant commenced
employment with the Respondent on 1 February 2004. From 1 January 2009 until his
dismissal the Complainant worked in the role of Production Team Leader pursuant to a written
contract of employment.
In September 2018 the Respondent carried out an investigation into allegations that the Complainant had interfered with and falsified time data on production scales and generated a scales ticket with false data for inclusion in a batch record in July 2018. The Complainant was warned that these allegations, if substantiated, amounted to gross misconduct. During the course of the investigation meeting on 28 September 2018, the Complainant admitted his actions and admitted that he “shouldn’t have done this for sure.”
Following a formal disciplinary hearing on 9 October 2018 the Respondent issued the
Complainant with a Final Written Warning because of his admitted actions, expressly
warning him that interfering with or falsifying any Company records constituted gross
misconduct. The Complainant was instructed to undergo additional training and was further
expressly warned that:
“If there are any further occurrences of poor performance and/or failure to adhere to company standards and procedures within the 12 months the next stage is dismissal.”
A week after the Complainant received a Final Written Warning, the Respondent submits the Complainant again falsified two Company records whilst overseeing the production of pharmaceutical ingredient batches. The Respondent wrote to the Complainant on 13 November 2018 notifying him that a new investigation would be taking place into this further issue. Given the fact that this was a second accusation of falsifying production records, in such a short period of time, the Respondent was left with no choice but to suspend the Complainant with pay. The suspension was deemed necessary to prevent potential repetition of the alleged misconduct, to protect the health and safety of the end users of the Respondent’s products and to protect the reputational standing of the Respondent in the regulated industry in which it works. The Respondent asserts that it treats the falsification of production records as a matter of the utmost seriousness and gravity, which is reflected in the Respondent’s disciplinary policy.
The Complainant was invited to an investigative meeting and informed him that he was entitled to be accompanied by a colleague. Mr P conducted the meeting and the Respondent asserts the Complainant admitted to his actions regarding the falsification of records on two separate batches. At the hearing Mr P., a senior manager, gave evidence of the investigative process and how he considered the actions of the Complainant to be of the outmost seriousness. A disciplinary process was then initiated.
At he disciplinary meeting, which was carried out by another senior member of management, Mr B, the Complainant was accompanied by a representative. In mitigation, the Respondent submits that the Complainant had said that falsifying signatures was a practice that he had used before and queried why he had not been spoken to before now. The Respondent’s position, which was communicated to him, was that he was in clear breach of the Standing Operating Procedures.
The Complainant also said that he had filled in blank points in the record because he was under pressure from fellow employees. The Respondent submits that Complainant’s representative asked for a second chance for the Complainant because he had acted with good intention. The Complainant was allowed to make further written submissions if he so wished.
At this meeting to communicate the outcome of the disciplinary process the Complainant attended without his representative. The Respondent informed the Complainant that it had been decided that the allegations against him were substantiated and that the appropriate sanction for his admitted actions was dismissal, with pay in lieu of notice. The Respondent noted that the context of the disciplinary process included the fact that the Complainant was currently under a Final Written Warning for a similar infraction. The Respondent submits that it checked the Complainant’s assertions with the QA team who had confirmed that if they had detected evidence of any such practice in the past they would not have tolerated it. This was communicated to the Complainant.
The Respondent submits that it had considered lesser sanctions under the Respondent’s disciplinary procedures, including demotion or an internal transfer. Given the existence, however, of a Final Written warning for a similar infraction, and the irrevocable damage done to the Respondent’s trust in him as Team Leader, the Complainant’s position was untenable, and dismissal was the only possible outcome.
An appeal by the Complainant was facilitated to the Respondent’s Site Director, Ms. D. The Respondent submits that the Complainant outlined how important the Respondent company had been in his life and requested that the sanction of dismissal be overturned. The Respondent asserts that the Complainant stated at this meeting that he was concerned that certain trade union members were trying to trap him into leaving blanks on the production record. He regarded this as
harassment and had initiated a separate grievance in respect of this behaviour. The Respondent submits that these were the only grounds of appeal moved by the Complainant. He neither denied his actions, nor complained about any unfairness in procedure.
At the appeal meeting the Respondent submits that Complainant again declared that he thought the practice of falsifying initials was acceptable, as he had done it before. In relation to his second ground of appeal he stated that based on a voice message from an operator he felt that this operator was ‘out to get him’ that this had made him nervous about leaving blanks on records. Ms D asked the Complainant why he had not reported this; he stated that he had thought he could deal with it himself. Ms D gave direct evidence at the hearing on what transpired at this meeting. She alluded to the alleged threatening voice mail as claimed by the Complaint but stated that upon further investigation, the voicemail could not be construed in the manner described by the Complainant.
Following consideration of the Complainant’s written appeal submission and the submissions he made at the appeal hearings, Ms. D gave evidence that she decided not to uphold the Complainant’s appeal and his dismissal was upheld.
The Respondent opened the relevant portions of section 6 of the Unfair Dismissals act, 1977 regarding gross misconduct and the reasonableness or otherwise of the employer in carrying out the dismissal.
The following points and case authorities were opened:
· The requirement for the principles of natural justice to be exercised in workplace investigations in the Supreme Court case of Connolly v McConnnell  I.R. 172, Flanagan v University College Dublin , Joyce v Colaiste Iognáid  IEHC 809,
· The requirements for employers when conducting investigations of gross misconduct: Mooney v An Post  4 IR 288
· Contractual obligations when imposing a serious sanction: Giblin v Irish Life & Permanent PLC  IEHC 36.
· When the matter of unpunished past misconduct is raised by an employee as a defence: Aer Lingus v Fagan UDD1962, Labour Court 22nd of October 2019.
Summary of Complainants ’s Case:
The Complainant chose to leave the hearing and was not present to submit evidence.
Findings and Conclusions:
The only evidence presented to me was that of the Respondent therefore I make my decision based on that evidence only. I must decide whether the Respondent in carrying out the dismissal acted fairly and reasonably and whether the sanction of dismissal was proportionate or otherwise
The relevant provisions of section 6 of the Unfair Dismissals Act, 1977 as amended, provides as follows:
“(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…
(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
(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.”
The uncontested evidence of the Respondent is that the Complainant admitted to falsifying process records a week after he received a Final Written Warning and that the investigative, disciplinary and appeals process was carried out in a reasonable and fair manner and that the transgressions of the Complainant were of such a grievous nature that no other sanction, but dismissal could be contemplated.
Based on the uncontested evidence before me I find that the employer acted reasonably and fairly in effecting the dismissal, in all the circumstances described above, and find that the complaint of Unfair Dismissal is not well founded therefore the complaint fails.
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.
I find that the complaint of Unfair Dismissal is not well founded and therefore fails.
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll