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Wrc Emphasises Procedural Error In Investigation Stage In Finding Unfair Dismissal – Will It Be Appealed?

In the recent case of Paul Dunne v Randox Teoranta, ADJ-00031187, the Complainant was awarded €25,000 by Adjudication Officer Shay Henry. The Adjudicator indicated that the amount of compensation awarded to the Complainant had been reduced by 50% to reflect the Complainant’s contribution to his dismissal.

Facts: The Complainant was employed by the Respondent from 1st July 2014 and had a good work record with his employer until October 2019 when he was assigned a new line manager. The Complainant was a research scientist involved in the development of existing and novel immunoassays which are tests that use antibodies to detect proteins in the body which might indicate a particular disease.

The Complainant and a colleague were developing an assay for two years under his manager and supervisor. The Complainant had exercised a certain amount of autonomy and discretion in performing his role albeit reporting to the line manager when selecting the best antibodies to put into this assay which would then be locked down in verification. Immunoassay verification is a set of tests which each immunoassay must go through and comply with in order to move to the next stage of approval. When verification is entered into, the materials and antibodies for the tests must be consistent. However, in the pre-verification stage, the assay can be altered and different items introduced to help get the most out of the assay. This is the stage the Complainant at when the incident occurred that led to his dismissal.

The Complainant had been instructed by his line manager to use 0.5mg CA15-3 conjugate and not 0.7mg CA15-3 conjugate. The Complainant went against his line manager’s instructions and tested the 0.7mg CA15-3 conjugate. Thereafter the Complainant was suspended on 14th February 2020. Following an investigation, a disciplinary meeting was convened, and the Respondent concluded that the Complainant’s conduct was a serious breach of their employer’s policies and practices amounting to gross misconduct. The Complainant was summarily dismissed on 22nd July 2020.

Decision: The Adjudication Officer concluded from the evidence that it was clear that the focus of the Respondent was on two issues; Firstly, the failure to obey a legitimate instruction and, secondly the potential consequences failure to follow that instruction could have had for the company. It was clear that the Complainant did not comply with the instruction given by his line manager, however, in his evidence he explained that he did not take the instruction as covering testing in the pre-verification stage. He did not try to hide the fact that he had tested the product and made the appropriate records relating to the test he had carried out which were available for inspection. He made it clear in the records that it was not to be used in verification.

The Adjudication Officer noted that the investigator had not appreciated the distinction between testing at pre-verification and verification stages and that he had not met with the Complainant as part of his investigation. He also found that the investigation went beyond a fact-finding exercise, noting that the investigation report commented on the Complainant’s culpability, without him having been given an opportunity to explain his actions.

Turning to the issue of proportionality, the Adjudication Officer noted that:

“Failure to obey a legitimate instruction of itself, while serious, cannot be divorced from the context and relative importance of the instruction. In some instances, refusing to obey an instruction may have grave consequences for the company, while in other instances less so. Therefore, the proportionality of the penalty is linked to the gravity of the potential consequences.”

The Adjudication Officer found it difficult to understand how the distinction between the potential gravity of the test being applied at pre-verification as opposed to verification stage “did not mitigate a decision to dismiss the [C]omplainant.” He concluded that the decision to dismiss the Complainant was not reasonable and found that he was unfairly dismissed. However, the Adjudicator held that the Complainant’s conduct “contributed significantly to his dismissal” and for that reason he reduced the award of compensation by 50%. The Complainant was awarded €25,000 for being unfairly dismissed.

Takeaway for the Employers: This case highlights the importance of every stage of the process and that if the investigation is going to go further than simply establishing the facts, then fair procedures should be followed at the investigation stage. It is surprising that the disciplinary and appeal processes were not sufficient to remedy this procedural error and it will be interesting to see if the decision will be appealed. The decision also relies on ‘the context’ of the misconduct of the employee when deciding on the proportionality of the sanction.  Therefore, it is important that the reasoning for the decision is set out clearly in writing with the communication of the decision. The reduction of the award in this case on the basis of the Complainant’s contribution to his dismissal seems to contradict the Adjudicator’s decision in relation to proportionality.

Link  – https://www.workplacerelations.ie/en/cases/2022/march/adj-00031187.html

Authors – Eva Lindsay and Anne O’Connell

01 April 2022

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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