ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00004881
A General Operative
A Medical Device Company
Daniel Snihur, Union Official , Independent Workers Union
Barry Walsh , Solicitor,Mc Dowell Purcell Solicitors .
Complaint 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: 05/04/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
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.
This is claim for Unfair Dismissal disputed by the Respondent .
Summary of Respondent’s Case:
The Respondent operates a medical devices company and is subject to the “strictest regulatory standards” at Ireland and US level. Permission to engage in continued manufacturing is dependent on continuous compliance with rigorous standards .The devices are classified by the FDA (Food and Drug Administration) as high risk classification. The complainant commenced work on 12 March, 2007.
All employees are trained in compliance requirements before commencing work on the manufacturing process The Respondent submitted an extensive description of the compliance process .All processes are governed by a Standard Operating Procedure. The Respondent outlined extracts of the Complainants training records and the Disciplinary procedures which may evolve in the event of a failure to follow the various procedures in manufacturing.
The Respondent outlined the facts surrounding both disciplinary procedures.
On February 1, 2016,The Complainant was assigned to work on a curing oven, governed by a particular protocol ,which sets out that it is essential that lot numbers are recorded on the back of the oven chart . During the night shift, lot numbers were found not to have been recorded on the back of the curing oven chart and the lot was put on hold by the Night Shift Team Leader. The Respondent demonstrated this process by exhibiting a red tag which signalled the “ on hold process “ necessary for investigation of non-conformance .When the Day Shift Team Leader went to retrieve the chart the next morning ,the Complainant approached him with a backdated completed chart .The Complainant confirmed that he had backdated the chart .
A Disciplinary Process followed regarding a quality non conformance on February 2, 2017 .This resulted in
1.One Week paid Suspension
2 A 12 month Final Written Warning to April 15, 2017.
The Complainant was offered a week in which to appeal this decision, but did not avail of the appeal.
The Complainant was offered advice, support and direction by the Respondent .He was also reassigned Data Integrity Foundation Training on his return to work .The Respondent contended that the delay in issuing the outcome of this process did not prejudice the complainant .
On June 7, 2016, the complainant was engaged in a casting operation. A component of the Product History Record was not completed .This was picked up on by a colleague who brought it to the attention of the Shift leader .The “On hold “procedure was initiated by way of application of the red tag .On June 8, the Team Leader discovered that the lot of devices had been removed from the “on hold “shelf and had been moved through the manufacturing process .An investigation followed.
The Complainant was suspended from duty on 15 June, 2016 and the Complainant participated in meetings held under the disciplinary procedure.
The Respondent made the following findings :
1 The Complainant had not adhered to a specific Standard operating procedure on Process and Quality Product hold.
3 The Complainant had not complied with the Good Documentation Practice.
4 The complainant backed dated a particular percentage recording relevant to the 7 June on the 8 June in breach of protocol .
5 The percentage figure recorded was entered without verification.
The Respondent submitted that these were serious breaches of the manufacturing process. As the complainant was already on a final written warning the Respondent made the decision to dismiss the complainant. This was appealed at the Appeals Meeting on August 4, 2016.The complainant requested that an Interpreter accompany him to the Appeal meeting and it was not indicated by the Complainant that his companion was in fact a Trade Union Official.
Following careful consideration of the appeal, the respondent rejected the appeal and upheld the finding of dismissal .The Respondent drew the attention of the hearing to the undisputed fact that the complainant had expressed an awareness of both breaches of procedure, and that a sanction was indeed warranted. The dispute between the parties arose in relation to the proportion of the sanction, where he Respondent asserted that it had applied the appropriate sanction, given the seriousness of the breaches of procedure. The Respondent submitted that it had lost complete trust in the complainant in the aftermath of the second incident.
The Respondent introduced Ms Q, who worked as Senior Manager in Quality Product Control. Ms Q made a detailed presentation on the system of device production and stressed the strong regulatory presence in quality control of the devices.
The Production Supervisor (Mr PS 1) gave evidence that the complainant had backdated a chart from February 2nd to February 1 when the product was on hold. This was a falsification of records. He stated that the Red labels signifying the “on hold” procedure existed in all departments. During cross examination, he confirmed that a colleague of the complainants who also engaged in the practice was also disciplined.
Another Production Supervisor, Mr PS2 gave evidence on the management of the second disciplinary process in June 2016. He had worked at Supervisor level for 7 years in the area .He recalled the incident of June 7 and confirmed that the Team Leader is the appointed and approved person to make the decision to remove the “red on hold tag” if it placed on a batch of product .He recalled that there was no dispute in the facts as they were reported by the complainant, but the outcome was a defined breach of the company procedures. The complainant submitted that he remembered the percentage figure of measurement as it had been the day before and inserted it. Mr PS 2 contended that it was imperative that real time recording took place to preserve the integrity of the product and the resultant validation process.
He described the incidence of “lifting the red tag “by an associate and not a Team Leader as completely in breach of procedure and something that never happens .He stated that “nobody would entertain that “It was not permitted to backdate data and this was addressed in the complainants training .He found the complainant lacked insight and minimalised the breach, believing it to be a minor issue .He stated that trust was a significant issue for production and this had been eroded. He believed that there was no alternative to dismissal given what had happened before.
During cross examination ,Mr PS 2 confirmed that the casting process was slightly complex ,and formed a component of product traceability .He confirmed that only the Team Leader /Supervisor had the authority to remove the red “ on hold “ tag and an employee was not permitted to correct mistakes alone once that process had commenced .
Mr PS confirmed that he had considered the effect that a decision taken to dismiss would have on the complainant and he considered :
The Gravity of the Incident
That it was a repeat offence
That the complainant had moved the tag himself.
He answered that it was very important that the integrity of the product was preserved and that data was correct .This require a reliance on trust. He agreed that the company was not at a loss or damage through the incidents as outlined .He denied that he held any malicious intentions towards the complainant .
Mr B, Head of Manaufacturing gave evidence of undertaking the appeal process .He met with the complainant and his chosen support for a 20 minute period where the complainant was given every opportunity to add to what was already submitted in the letter of appeal .The meeting was held at a neutral venue and was scheduled for 1.5 hrs .
There was no dispute on the facts, on the reported backdating of data .Mr B submitted that the non attendance of the complainant at the propose meeting of July 20 was not part of the process. Mr B submitted that the complainant had nothing new to add and he believed that the disciplinary process had been thorough, the decision to dismiss was correct and the sanction in light of the pre existent final written warning was appropriate.
During cross examination, he confirmed that he had been three years with the company as a Senior Manager and he had not overturned a decision taken to dismiss in the past.
The Respondent made legal submissions in concluding arguments. He relied on the EAT case of O Halloran V Guidant, Luxembourg SARL UD 708/2006, where the EAT found against the complainant, a then employee of a medical devices company, found to have deviated from company protocols which resulted in her dismissal.
The Respondent drew the attention of the hearing to the central aspect of the case involving a highly regulated manufacturing process .The company adopted a reasonable response to the first error in February 2016 , when the complainant was given a lesser sanction and an opportunity to improve .Specific training followed and a second incident followed 7 weeks post application of the first sanction, due to expire in April 2017 .The complainant was given a second chance which was accompanied by a message of support by the Production Supervisor who told him that “ We are here for you “.The Respondent concluded that the sanction of dismissal was one within the range of reasonable sanctions the employer was entitled to impose, given the severity of he mistakes . The Respondent submitted that the dismissal was fair in all the circumstances.
Summary of Complainant’s Case:
The Complainant had worked as a General Operative since March 12, 2007.He had been recognised as an employee of good standing, where his appraisals reflected a constant progress in the company. During 2015,he sought to switch from evening shifts in the” Finishing” Dept. to another Department to facilitate his home life .Initially , this was refused and in October , 2015, he commenced working in the “ Moulding “ area .He received a partial training in December, 2015 which omitted training in a process called “ casting “.
The Complainant had an incident free work record until he made a mistake on, Monday, February 1, 2016.The Complainants Representative submitted that the complainant started work that day at 7 am and the complainant began to unload previously loaded ovens from the Friday Night shift. This was only his third time working with the ovens. On the following day , he was alerted to a mistake he had made .His batch had been placed” on hold” .He noted that he had forgotten to fill out a log chart and proceeded to fill it in then .He realised his error and reported it . A Disciplinary process ensued which resulted in a Final Written warning for the complainant.
The Complainants representative took issue with a 2.5 month waiting period before this outcome was shared with him, during which time, he found himself under severe pressure and stress as he worried about his future with the company. He did not appeal the sanction.
On 7 June, 2016, the complainant was working with the ovens when he noticed that a marking on the exact time of unloading was missing a percentage value and he inserted a value he remembered from the previous day. The complainant’s representative submitted that the complainant undertook this action as he understood that he was allowed to correct small mistakes of lots that were placed on hold.
A period of suspension and further Disciplinary process followed where he was dismissed .He appealed the dismissal, but his representative was not allowed to speak during the meeting and the dismissal was upheld.
The Complainant submitted that the complainant had completed 9 years of unblemished service prior to the incidents in 2016.The complainant ought to have started his training for the new posting in “ curing “ and the incidents as recorded were in “ the heat of the moment”. The Complainants representative submitted that the complainant could have been spared the sanction of dismissal if disciplinary sanctions had been proportionate.
The complainant submitted that the severity of the sanction was too severe and sought redress in the form of compensation and a recommendation for his re-instatement or re-engagement .He submitted that the company had not sustained a loss and the mistakes on both occasions were immediately corrected. The Respondent had given insufficient regard to the complainants long service and that he had not had a lot of experience in this new area of work for him .He had developed a working knowledge of most of his new area of work but his training in “curing “was insufficient .He believed that he should have been reprimanded, short of dismissal .He viewed his dismissal as disproportionate and unfair.
The Complainant submitted that he had been on illness benefit, citing depression. He undertook training in October 2016 and submitted some evidence regarding mitigation and his 35 week loss period to day of hearing.
Findings and Conclusions:
I have carefully considered all the evidence and submissions received in this case. From the outset, it was clear that the complainants case centred on the proportionality of the sanction received .He did not dispute the facts or take issue with the procedural framework adopted.
The Respondent was clear that the decision to dismiss was not taken lightly and was within the range of reasonable responses open to them as an employer confronted by the events as described.
I have taken account of the extensive presentation made by the respondent on the manufacturing process within a highly regulated environment .I was struck by the clear imperative of this presentation that the Product Integrity , governed by protocol was central to the success and clinical acceptability of the product in the market place .
I have also taken account of the complainant’s presentation that he genuinely believed that he was insufficiently trained in the processes and this should have permitted more understanding from the respondent. I am also conscious that the complainant submitted that he became depressed during the latter months of his employment; no medical evidence was tendered on this point.
The Unfair Dismissals Act 1977 – provides
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 for all the circumstances, there were substantial grounds justifying dismissal .
Section 6(4) provides that :
Without prejudice to the generality of subsection(1) ,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 of the following
The burden of proof to demonstrate that the dismissal resulted wholly or mainly from one or more of the matters specified in S.6 (4) or that there were other substantial grounds justifying the dismissal rests with the respondent .
As an Adjudicator, I am permitted to consider the reasonableness of the employers conduct in relation to the dismissal in accordance with S.6 (7) of the Act.
I have considered the statement of Lord Denning , Master of the Rolls in British Leyland Uk ltdV Swift IRLR 91 referenced in this jurisdiction in Allied Irish Bank V Purcell  23 ELR 189.
“The correct test is, was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him ,then the dismissal was unfair .But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair .It must be remembered that in all cases there is a band of reasonableness ,which one employer might reasonably take one view ,another quite reasonably take a different view “
For the purposes of this case, It is not my role to decide whether I would dismiss the complainant in the circumstances presented, instead, I must inquire whether it was reasonably open to the respondent to have made the decision to dismiss the complainant.
I found the Respondents presentation through use of “production props” to be useful to help me understand the operational climate of the company and it was clear that the complainant was happy and successful at the company prior to his chosen relocation to the new Department in October 2015. I have noted that the complainant had relocated three months prior to the first incident in February 2016 and seems to have worked at the ovens on a short number of occasions.
I have considered the outcome of the first Disciplinary process on April 15,2016,I am satisfied that a two part sanction of suspension and final written warning was applied and not appealed , yet the complainant submitted that a final written warning ensued without reference to the period of suspension .I am satisfied that a specific warning was issued and accompanied by a clear statement of a reasonable opportunity to make improvements with support ,where implications of non compliance with improvements sought would result in an intensification of the Disciplinary process .
This was not appealed and while the complainant raised the protracted process governing the duration of this deliberative process ,I found the delay to be regrettable but not injurious .I was however , slightly surprised that the complainant elected to present alone at both this Disciplinary process and the Disciplinary process which led to dismissal on July 25, 2016. I am satisfied that he was invited to bring representation and I find that given the stark circumstances where the complainants job was clearly under threat from April 15 onwards, that he sought to navigate alone .I must respect his decision in that regard, but given the principles incorporated in the Respondent Disciplinary procedure on the right to defend yourself, it struck me that representation at the early stages of this process may have been beneficial to both parties.
I found it unusual that the complainants chosen representative at the appeal hearing presented as an interpreter and that his true function of Representative was not made known to the respondent.
I do not accept that he was prevented from speaking at the appeal . This was clearly a missed opportunity in terms of seeking to influence the outcome of the hearing .
The Appeal outcome does not reference any attendee outside the complainant. The question of depression had arisen for the complainant at this time, yet it was neither flagged by him nor probed by the Respondent during the dismissal or appeal process. The sole record seems to be a medical cert presented by the complainant consistent with his return from Poland .
I have considered the undisputed statement that the Respondent business was not damaged either financially or by reputation by the sequence of the incidents at the heart of the Disciplinary processes in February and June 2016 .However, I was struck by the respondent presentation on the loss of trust in the complainant which placed the integrity of the production under threat for the company perspective .In particular , I was struck by the evidence of Mr PS 2 , who made the decision to dismiss the complainant .His stated incredulity at the sequence of events in June coming so soon after the February event goes to the root of this case for me .
I have found that the decision to dismiss was not based on a single isolated incident and that the complainant was on a Final Written Warning a time of the second incident in June, 2016 .I accept that the respondent was disappointed by the earlier incident in February 2016 but constructed a corrective action plan, incorporating training which placed a clear opportunity for improvement before the complainant, whilst spelling out the implication for non compliance. I found this to be a reasonable approach and consistent with the stated objective of the high level of trust underpinning the manufacturing process .I interpreted the intervening period from April to June 2016 as a mutual trust building opportunity.
The Respondent did not draw my attention to a zero tolerance policy for breaches of core protocols. In Bank Of Ireland V Reilly  IEHC 241, Noonan J pointed to this omission in terms of an email policy which arguably was peripheral to core work. I found that the Respondent in this case understood and accepted that mistakes happened in production and they sought a “hands up “approach to facilitate improvements.
I did not establish any procedural aspects which would render this dismissal unfair. I found it unusual that the complainant chose not to attend the meeting where his dismissal was confirmed. I believe this demonstrated a lack of judgement .I noted that he was in Poland during his period of suspension and submitted that he missed the letter of invitation until he himself was in the process of submitting a sick cert to cover the period to September, 2016.
I move now to considering the submissions made by the parties on proportionality .The Respondent submitted that the complainant‘s transgressions amounted to egregious behaviour, the nett effect of which was a sundering in the trust and confidence necessary to maintain a viable employment relationship. They accepted that the complainant had a positive history of work performance and contended that he was given every opportunity to improve following the February incident.
The Complainant contended that insufficient weighting was placed on the complainant’s admission of the wrongdoing, his insufficient training, his unblemished work performance and his mental health condition. He sought an opportunity to have a second chance and challenged the proportionality of the decision.
In Parelli V Irish Distillers 15 ELR 25 , The EAT pointed to the parameters of misconduct in the serious domain and state that “It is the nature and quality of the conduct and not its consequences which renders the conduct either serious or trifling “
I have considered this case and the case law of the analogous case submitted by the Respondent. I have also considered the EAT determination in
Bigaignon V Power Team Electrical Services ltd UD939/2010,23 ELR 195,where an employee, engaged in overhead maintenance of lines for electrical supply ,tested positive for cannabis and was unsuccessful in a claim taken for Unfair Dismissal .In that case , the complainant had signed a document where he understood that zero tolerance of drug use was set out .
The case deferred to the precise terms of the test to be applied as to whether the sanction of dismissal was reasonable in Noritake (Ireland) ltd V Kenna, Employment Appeals Tribunal UD 88/1983.
And I have applied this test to this case
1 Did the Company believe the employee misconducted himself as alleged? I have found that the respondent held an honest belief that the complainant had engaged in both incidents at the heart of the case .The complainant confirmed that he was involved as described.
2 Did the Company have reasonable grounds to sustain that belief? I have found that there was no dispute between the parties on the nature of the incidents and the manner in which they were investigated and processed through the Disciplinary procedure .While I noted the complainant was not compelled to follow a zero tolerance policy .I have found that both incidents centred on a repeated breach of the same protocols and this was submitted as a bridge to far in the respondents evidence.
3 Was the penalty of dismissal proportionate to the alleged misconduct? I have reflected on the circumstances which caused the complainant to come and work in this area of manufacturing after a period of 9 years. I appreciate that he wished to work the day shift. He entered a highly regulated production area with intense protocol and tracking measures. This carried a high level of responsibility and it was clear that the complainant struggled with this requirement .However, I am satisfied that he was provided with a genuine opportunity to reach the standard required through a measured management process and training. Regretfully, he was unsuccessful as evidenced by the events of June 2016.
The Respondent cited the reason for dismissal as unacceptable conduct and a breach of trust and confidence .I have considered the proportionality of the sanction and the effect of the dismissal on the complainant.
The hallmarks of trust and confidence are in my opinion the foundation and the core of a viable employment relationship .The Respondent submitted that the complainant minimised the effect of backdating records pertinent to product integrity .The evidence submitted pointed to a company highly troubled by his lack of insight .I have to consider the role of product integrity played for the respondent and that the acknowledged departure from protocol by the complainant presented a uniquely significant dilemma going forward for the company. Extensive documentation was presented on training records undertaken by the complainant .
While it is regrettable, that both parties did not engage in an earlier assessment of the complainants performance in the early day post transfer by means of a performance management tool .I must accept the evidence tendered by the respondent on the combined critical incidents of February and June 2016 proving insurmountable for the respondent. I must also accept that the complainant showed a distinct lack of awareness of the severity of the circumstances he found himself in .It was clear that he had attended a Disciplinary meeting on June 20th and I would have thought it reasonable for him to have a contingency in place to follow up on paper work which might arise from this process while he was in Poland during the course of his period of suspension .
I have reflected carefully on the effect of the dismissal on the complainant and I noted his loss of livelihood and benefits .I found that he made an unsuccessful transfer from the Finishing Department to the Moulding Department .
I have concluded that based on the unique facts of the gravity of the complaint in this case , that the sanction of dismissal was however, proportionate to the alleged misconduct .
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 claim for unfair dismissal has not succeeded and the respondent is entitled to rely on Section 6(4) of the Act ,that conduct formed the substantial reason for dismissal in this case .
Dated: 20th July 2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle