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WRC deems complainant 50% responsible and halves compensation 
Pharma firm Randox has been ordered to pay a research scientist €25,000 for unfair dismissal after firing him over an experiment his line manager said was forbidden. 
The scientist said his line manager had only told him not to use the stronger assay concentration at a later stage in the regulatory verification process and had been bullying him. 
The Workplace Relations Commission upheld Paul Dunne’s complaint of unfair dismissal against Randox Teoranta in a decision published today - but deemed him to be 50 per cent responsible and halved the compensation payment. 
Mr Dunne said he worked on the development of immunoassays - tests using antibodies to detect proteins which might point to a particular disease in a patient. 
He said he had autonomy in this research, while reporting to a line manager, in selecting which antibodies he could put into his assay before these would be “locked down” at the verification stage. 
Before moving out of the pre-verification stage, he could alter the formula and introduce different items to try and “get the most out of an assay”. 
Mr Dunne said he had a good work record over his five years with Randox up to October, 2019, when he was assigned a new line manager, Danielle Vance. 
He had been working on a particular assay for some two years, under supervision, he said. 
On 29th January, 2020 Ms Vance told him at a meeting told him he should use a 0.5mg concentration of an antibody conjugate called CA15-3 which targets a marker for cancer, and not the 0.7mg version, he said. 
However, he went ahead and carried out a test using the 0.7mg version of the conjugate anyway and said so to Ms Vance. 
He told the commission the experiment was still at pre-verification stage and he felt it would have been wasteful to “bin” the conjugate when it could be used for other experiments or used for quality control. 
He recorded the test results and wrote on the report: “test only, not to be used in verification”, the commission was told. 
James Stewart, in-house counsel for Randox, told the commission that because the tumour monitoring project Mr Dunne was working on was a cancer test it was in a “higher risk category” and “subject to increased scrutiny” from regulatory bodies. 
Mr Stewart said the use of the 0.7mg formula would have meant inconsistency in the research and could have brought down “adverse regulatory findings”. 
“By choosing not to follow his manager’s direct instruction, the impact could have had serious consequences financially and reputationally on the business, as well as on the people the assays are designed to diagnose,” Mr Stewart said. 
He said Ms Vance regarded it as “serious insubordination” and a “serious breach of trust and confidence in his role as a scientist”. 
“There was no risk to regulatory approval and the complainant did not benefit personally from his conduct,” said Rory O’Brien in submission on behalf of the complainant. 
He said his client had a “history of difficulties” with Ms Vance and had faced “a number of investigations” in the four-month period since she had been made his manager. 
“None of them led to a positive finding that the complainant had committed any wrongdoing,” he said. 
Mr O’Brien said his client was suspended on 14 February 2020 without any investigation having taken place – an “extreme” move normally reserved for serious misconduct before all facts were ascertained. 
“It caused immense reputational damage to the complainant,” Mr O’Brien added. 
He said Randox failed to investigate a formal grievance made by his client against Ms Vance alleging bullying and harassment and pressed ahead with a disciplinary process which he argued was procedurally unfair. 
Mr O’Brien said the grievance ought to have been investigated to judge whether Ms Vance was “being fair or over-reacting”. 
Instead, he said, having called for his client’s suspension, Ms Vance was allowed to run the initial investigation and had “a significant impact on its outcome” and the decision to dismiss Mr Dunne. 
Mr Stewart said Randox maintained that Mr Dunne had committed gross misconduct and that the dismissal was procedurally fair. 
He said Mr Dunne had only been “advised” by its HR department not to contact other members of staff and that the firm had changed the investigative officer with no previous involvement in the matter at Mr Dunne’s request - adding that he was also offered the opportunity to appeal. 
In his decision, adjudicating officer Shay Henry found there was no doubt that Mr Dunne had not complied with the instruction not to use the 0.7mg formula. 
But he noted Randox’s concern about a potential adverse regulatory finding had focused on the use of the 0.7mg formula “during product verification”. 
“[Mr Dunne] stated that he did not take the instruction as covering testing in pre-verification stage,” Mr Henry wrote. “This evidence is supported by the fact that he made no attempt to hide the fact that he had tested the product. He also made the appropriate records relating to the test he carried out including that it was not to be used in verification,” he added. 
Randox “quickly realised the inappropriateness” of appointing Ms Vance to investigate allegations against Mr Dunne when she was the one making them, Mr Henry wrote. 
The new investigator, Damien McAleer “relied on some of the material already collected without starting the process afresh”, he wrote. 
It was clear from the evidence given at hearing that Mr McAleer “was not aware of the distinction… in relation to testing at pre-verification and verification stages” and failed to meet with Mr Dunne, the adjudicator added. 
“Had he done so, I believe that this position would have come to light. I therefore conclude that this is a key failure in the investigation process,” Mr Henry wrote. 
He said the wording of Mr McAleer’s report, which concluded there had been “serious insubordination” and a “breach of trust” indicated it had “gone beyond a fact-finding exercise”. 
“The investigator had reached a conclusion as to the culpability of the complainant, without having given him an opportunity to explain his actions,” Mr Henry wrote, suggesting Mr McAleer’s opinion might have been different if he had heard Mr Dunne’s position on the different stages of research. 
He added that it was “difficult to see” how the fact that the research was at an earlier stage did not mitigate the company’s decision to dismiss Mr Dunne. 
“I therefore conclude that the decision to dismiss the complainant was not reasonable and that he was unfairly dismissed. The complainant’s conduct contributed significantly to his dismissal and I have reduced the amount of compensation by 50 per cent” Mr Henry wrote. 
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