ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00010914
Parties:
| Complainant | Respondent |
Anonymised Parties | A Process Operator | A Pharmaceutical Company |
Complaint:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00014514-001 | 27/09/2017 |
Date of Adjudication Hearing: 09/01/2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background:
This is a claim for Unfair Dismissal submitted under the Industrial Relations Acts . |
Summary of Claimant’s Case:
The claimant was hired on a fixed term contract 4 January-30 June 2017.He worked a 39-hour week in return for 900-euro gross per week. He had previously worked for the company for a period of 3.5 years and had been recalled for hire. He was represented by his Union, who presented written and oral submissions. On this occasion his work base had been varied and he did not receive proper training. The Claimant raised a concern that he had not received the same turning as the remainder of the temporary cohort and as he was about to attend, was recalled to production. Several errors were made by workers during production and the workers were informed that these would have to stop. In or around late May/early June 2017, the claimant was informed by his Production Manager that he would be issued with a follow up fixed term contract to December, 2017. On Friday, 23 June, 2017, the claimant was called to the HR Office, where he met Mr C. He was informed that he had made errors regarding cleaning a machine and that it was not looking good for him. They would talk again on Monday. On Monday, he met Mr C with his Supervisor, Mr S. He learned that his contract was not to be renewed due to multiple incidents regarding his work performance. He was instructed to pack up and leave the plant and he would be paid until the end of the week. The Claimant was shocked and left. The Union submitted that the sanction of dismissal was disproportionate, the incorrect procedure had been relied on and there were mitigating circumstances. He lodged an appeal to the dismissal, which was heard by Mr A and Mr B who confirmed that they did not have the authority to overturn the decision to dismiss but that their role was to investigate the matters raised and issue a recommendation. The Appeal failed and the Union termed it “a fishing expedition” (Gross Misconduct) The Union contended that the claimant was not afforded representation. He was not afforded an investigation. The dismissal was inconsistent as other errors made by staff had not attracted the sanction of dismissal. The Union submitted that the claimant had been singled out for a human error. The Verification sheet had provision for two signatures and the Union understood that the second person escaped a sanction. The Union argued that the Claimant was not afforded remedial training. The Employer alerted the claimants recruitment agency to the claimant’s situation and this had caused him reputational damage The Union contended that the company had not been at a loss or exposed to damage by the claimant’s actions. The employer behaves unreasonably towards the claimant by not extending his probation. The Union submitted that the claimant had been unfairly dismissed as the employer had acted unreasonably and requested a positive recommendation on re-instatement or compensation.The Claimant stated that he is available for work . |
Summary of Employer’s Case:
The Employer is home to a Manufacturing site operational since 1994.The facility specialises in pharma products. The company is operating in a challenging environment and has made redundancies in the workforce. The Employer submitted a written submission and added several supplementary documents. On 17 January, I received a copy of the Associate Staff Handbook. The Claimant had worked as a Process Operator on two previous occasions with the company. The first period concluded in redundancy and the second period evolved January -June 2016. On this occasion, the claimant commenced as a temporary process operator on a six-month fixed term contract due to expire on 30 June, 2017. The contract made provision for a six-month probationary period. The Claimants contract expired on June 30, 2017. His last working day was June 26, 2017 The Plant is subject to high compliance standards and all process operators are highly trained in certain manufacturing requirements. The Employer submitted details of the claimants training records. On May 16,2017, the claimant was assigned to clean specific equipment. He carried this out under the designated procedure. The Claimant sought help in opening the vessel and completed the task alone. Several weeks later June 21, during the preparation for the next campaign using the equipment, powder was visible on the clean vessel and found to be contaminated. This deviation was recorded and human factor analysis was completed. On 23 June, 2017, Mr C met with the claimant regarding his contract extension, where he was informed that considering the serious manufacturing breach, the company were considering not renewing his contract. His shortcomings on validation of the cleaning procedure were raised with him and he was informed that the company were having great difficulties considering an extension of his contract. On 26 June, The Employer met with the claimant again to discuss the extension and confirmed that it would not be renewed. The Claimant objected to this and cited a shortfall in his training but he was informed that he had personally validated the process and had not sought help. The Company had formed the view that the breach was an extremely serious regulatory matter. If the breach had not been elicited, it had the potential to lead to devastating consequences. Later that day, a local tri partite discussion took place between HR, the Union and the Claimant. The Claimant was paid his bonus and the cost of an additional 7 hours’ holiday. The Union wrote to the company on July 7, asserting that the claimant had been dismissed from his employment. On 16 August, the Company granted an appeal to seek to understand the mitigating circumstances which the Union had outlined in their letter. An Appeal hearing was held on 23 August 2017.The Claimant submitted that he had difficulties completing the task as he had not received training in confined spaces. The Appeal also hear from the Management team, who stressed that the claimant had not raised any shortfalls in training at the time and the claimant had been given the choice to leave immediately and receive payment to week end or work until week end. They discounted the connection made to confined spaces. The Appeal panel rejected the claimants appeal. A copy was provided to the Union but no further responses were received. The Union referred the claim to the WRC and the Employer disputed the Unions version of events. The Employer submitted that: 1 A serious manufacturing breach occurred at the plant with grave potential impact for patients had it not been discovered. The Claimant signed to say that the vessel was visibly clear. 2 The Claimants contract was not renewed. Five out of the 7 January -June 2017 fixed term contracts were renewed. 3 The Claimant was provided with an Appeal. There was no dispute on fact but failed to demonstrate any accountability for his behaviour. Representation was permitted during June 26 and the Appeal. 4 The decision not to renew the contract or offer any further employment was reasonable and was based on clear reasons. The Claimant was allowed time to address this through dialogue and appeal. 5 The Company lost production for 2.5 days 6 The Claimant had not raised other staffs mistakes The Company Representative sought that the claim be dismissed. It was impossible for the company to consider taking the claimant back as they had understood that he had gone peacefully. . |
Findings and Conclusions:
I have considered both party’s submissions in this case. I have also reviewed the documents submitted. Both parties accept that the claimant was involved in a serious omission during June , 2017.Both parties have however formed very conflicting views in relation to the sequence of events. The Claimant contends that he was given an expectation in May 2017 that he could look forward to a contract renewal. He did not provide any formal records in support of this strongly held view. I noted that the claimant was not recorded as being a participant in any probation process during his virtual six months of employment. However, I accept that he was given the expectation on the renewal of his contract. Neither party could fore see at that stage that the manufacturing breach, so central to this case would occur. The Employer contended that the claimant left employment on a Voluntary basis in the wake of a breach in manufacturing protocol and that he was not dismissed. The Claimant disputes this and submitted that he was told to leave. I understand that the circumstances of the claimant’s departure were somewhat opaque during the afternoon of June 26 as the Management met with the Union in what they understood was a closing ceremony. There was no compromise agreement in the case which prohibited a claim in this case. While this case is not advanced under the Unfair Dismissal Legislation, I have included the statutory definition of dismissal. “dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, I note that the Contractual clause on probation permits a termination of contract by either party in accordance with the Minimum Notice and Terms of Employment Acts 1973-2001.There is also provision for an extension of the probationary period at the company’s discretion. The Claimant told the hearing that he had not sought an extension on his probation period. I have considered the procedural framework relied on by the Employer in the immediate aftermath of the manufacturing breach. Section 24 of the contract of employment outlines the Disciplinary procedure In all cases of dismissal, a full investigation will be carried out, and the employee will have the right to put his case and be accompanied by another staff member and the right of appeal. The Associate Handbook referred to a Non-Union Member scenario but equally referred to a clear procedural framework to be followed in cases of concern regarding conduct. This is a Company which clears strives for excellence and the staff handbook reveals an excellent package of staff supports. However, the breach in Manufacturing protocol did not find its way it’s a procedural process in line with what is outlined in the company procedures. I have found that the company took a short cut in confirming that the contract would be renewed. There is no such thing as an open and shut case, and an error is seldom just one person’s fault. Notwithstanding the serious omission by the complainant and the difficulties he faced on accountability, I have found that the Company took a clear short cut in how they addressed this error. This was not remedied by the Post termination meeting on June 26 or during the Appeal. The Appeal lacked any terms of reference and the function of the Appeal seemed to be an Independent Review rather than an appeal which incorporated the decision taken not to renew the contract. However, I found the Letter of Outcome dated October 9, to be illuminating in the case. 1 The Company had allowed Anthony to leave 2 It referred to a Disciplinary Panel, yet this was captured in the Appeal. 3 The Complainant had lost trust in the Claimant. I have a difficulty in accepting the assertion that the claimant voluntarily left the site. His contribution to the hearing re-affirmed that for me. This is compounded by the fact that 5:7 January starters had their contracts renewed in July 2017. This places the issue of the omission centre stage in an otherwise event free probation period . The Company submitted that the Disciplinary procedure did not apply to employees on probation, but I could not establish that exclusion in documents before me. The Labour Court has been persistently critical where fair procedures and natural justice have been omitted in cases where a probationary period has ended in termination. I do not accept that an Employer may reasonably refrain from the utilisation of a Disciplinary procedure during a probationary period. In Glen Patrick Water Coolers V a Worker LCR 21028, the Court found procedural deficiencies following a summary dismissal for performance issues. The Court also remarked on the lack of adherence to the Statutory Code on Disciplinary procedures, S.I.146/2000
Based on the presentations of the parties, I have found that the claimant was dismissed on June 26, 2017 following the discovery of a cardinal manufacturing error. I found that he was denied fair procedures or natural justice in how the company addressed this error and this has caused him major upset given the mutual satisfaction of the parties on his previous employment record. I believe that he ought to have sought access to a Full-time Union Official to assist him at an earlier stage, such was the gravity of where he found himself. I do not for a moment seek to minimise the error or its effect on business, however it ought to have been managed in accordance with the company procedures. The Disciplinary procedure is meant to achieve correction rather than punishment. I was also dissatisfied at the notification shared with the Claimants employment Agency. I found that this added to the claimants defined sense of exclusion. I found that the Appeal was not focussed on the decision taken on June 26 and was more a systems analysis, yet it was referred to as a Disciplinary panel in the October 9 letter. There is no doubt that the claimant’s actions provided great unease to the company, however I found an undue haste in the management of the aftermath of the occurrence. I have found that the payment of the bonus to also be confusing. I have found merit in the Dispute.
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Recommendation:Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. I have found merit in this Dispute. I have considered the options open to me at this stage. I heard the parties on the redress options submitted by the claimant. The Employer was not keen to have the claimant back citing a significant breach of trust. I have found a serious disconnect between the claimant omission and a proper procedural framework to address those wrongs. This has disadvantaged him greatly. For me this has tipped the balance of justice in favour of the claimant on this occasion. Justice dictates that the parties should consider winding the clock back in this case. Considering the claimants unblemished record with the employer before the omissions relied on in this case. I recommend that he be given a second chance at the company he wishes to return to. I recommend that the claimant be invited back on a fresh fixed term contract of six months’ duration at the employer’s earliest opportunity. If this is acceptable to the parties, the complainant should undertake to work on his accountability issues during the probation period to restore trust between the parties. I make this recommendation in full and final settlement of the claim
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Dated: 1.5.18
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Unfair Dismissal , fixed term contract . |