ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027955
Parties:
| Complainant | Respondent |
Parties | Adrian O'Connor | Connaught Electronics Ltd T/A Valeo Vision Systems |
Representatives | Shonagh Byrne SIPTU | Aisling McDevitt TO ISSUE BY EMAIL TO: cases@ibec.ie |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00035907-001 | 28/04/2020 |
Date of Adjudication Hearing: 23/05/2022
Workplace Relations Commission Adjudication Officer: Anne McElduff
Procedure:
In accordance with Section 41 of the Workplace Relations Act [2015-2021] and Section 8 of the Unfair Dismissals Act [1977-2017], following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to present any relevant evidence. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. The Complainant was represented by Ms Shonagh Byrne, SIPTU and the Respondent was represented by Ms Aisling McDevitt, IBEC.
The adjudication hearing commenced on 14/6/21, resumed and adjourned on 23/11/21 and 1/3/22 and concluded on 23/5/22. At the outset I drew the parties attention to the implications of the Supreme Court decision in Zalewski V Adjudication Officer and WRC [2021] IESC 24 and I note the WRC had done likewise prior to the hearing. In the course of the adjudication hearing the parties were afforded fair procedures including the opportunity for cross examination and evidence was taken on oath/affirmation.
Set out below is a summary of the Complainant’s and Respondent’s respective cases. However, in making my conclusions and findings, I have considered all sworn oral evidence, submissions, documentation and case law cited.
Background:
The Complainant was employed by Connaught Electronics Limited T/A Valeo Vision Systems/the Respondent. The Complainant alleged he was unfairly dismissed for alleged gross misconduct and subjected to an unfair disciplinary process. The Respondent disputes and denies the complaint and submits that its decision to dismiss was fair and reasonable. |
Summary of Respondent’s Case:
The Respondent outlined its background as a manufacturer of automotive products and stated that it now ranked among the world’s top automotive suppliers dealing with all of the major car manufacturers. The Respondent stated that it diversified into camera systems when it was acquired by Valeo in 2007 which complimented existing technologies for vehicle parking and manoeuvring. The Respondent explained that the Complainant’s gross misconduct took place in an area of the production floor called SMT (Surface Mount Technology) where printed circuit boards/PCBs are produced, which are an essential component of the camera systems manufactured by the Respondent. The Respondent outlined the Complainant’s role as an SMT Operator and that he worked the night shift. The Respondent also outlined the SMT process, how the production of the circuit boards/PCBs operated and the necessary quality assurance tests. The Respondent stated that at any one time the production team comprised 16 SMT Operators working across four production lines , one Line Lead and one Supervisor. The Respondent stated that the visual inspection process/Automated Optical Xray Inspection/A0XI in the SMT area was critical to identify potential issues/problems on circuit boards designed for its camera products. To ensure this visual inspection is properly carried out by the SMT Operator, the Respondent explained that there is a specified system time delay of .8 seconds after which the SMT Operator presses a button to pass the product/circuit board through to the next stage. The Respondent stated that all SMT Operators, Line Leads and Supervisors had been given clear instructions - following an issue which had previously arisen - to strictly adhere to this inspection process. In that regard, the Respondent referred to previous correspondence issued to its workers from the Site Quality Manager in August 2018 which stated as follows: “It has come to my attention that there are people trying to override some of the controls that are put in place in SMT area……. if this is the case it can have serious consequences for Valeo. We will end up with 0KM and warranty issues and escalations and costs” In terms of the chronological sequence leading up to the disciplinary action, the Respondent outlined the concerns of the evening shift Supervisor on 3 October 2019 that a line could be running with the delay turned off and that a number of individuals on the night shift, were deliberately bypassing the visual inspection process. Further concerns were raised by the evening shift Supervisor on 8 October that line 4 which the Complainant was working on appeared to be completing work early but was still hitting target numbers. The Respondent stated that the situation was monitored by its Unit Manager who noted “that one of the production lines (line 4) had stopped running early yet was hitting all output targets (quicker than cycle times suggest) which was extremely unusual”. The Respondent outlined various background reviews it conducted between 8 October and 6 November 2019 including asking engineering to review the system and any changes made, clarifying that the changes were made by human intervention and were not as a result of mechanical or software changes, identifying the employees working at the time of the changes and checking the recording paperwork submitted. The Respondent stated that “Discrepancies were evident on throughput times where the visual inspection was taking place” and that it appeared that the system had been manually overwritten to bypass the inspection process. The Respondent further stated that “These discrepancies were not each and every day for the full duration of the shift but frequent enough to be a systematic breach whereby potentially faulty circuit boards were passed to the next stage of the process without inspection”. Summary of Unit Manager’s evidence: The Unit Manager gave evidence in relation to the production of the circuit boards and in relation to the technicalities of how the AOXI works and how the production system is recorded in order to verify that the proper visual inspection has taken place. With reference to the written records, he outlined how and where it was possible to identify when the PCBs passed through quicker than the .8 second delay function allowed for. He stated that whilst an SMT Operator can over-ride the system where a false flag has been raised, .8 seconds was the minimum time necessary to allow for inspection as it was not physically possible to verify the product’s various images in less than that time. The Unit Manager stated there was no reason to turn the delay function off and he explained that there was an issue in the past where the delay function was turned off and parts were delivered to a customer which resulted in a huge recall of product and significant costs for the Respondent. The Unit Manager stated that the Complainant would have known why the delay function was in place and that it was open to any operator to escalate a concern, for example to a Technician, Line Lead, Supervisor or Manager. The Unit Manager also stated that SMT Operators have to be trained and operate to a certified standard which certification must be maintained every two years. The Unit Manager outlined the operation of the production lines and the shift pattern of employees. He stated that he himself was always on the premises before the nightshift finishes. He stated that he was approached by the Supervisor who had concerns that the Complainant’s production line was running faster and finishing earlier than would have been possible if the .8 second delay function was in operation. He stated that the evening shift Supervisor carried out her own test and was satisfied that the product was passing through to the next stage of production too quickly. On 10/10/19 the Unit Manager started his own investigation, consulted with engineering and established that it was not a systematic problem but confined to production line 4 where the Complainant was working. The Unit Manager stated that he had previous experience in investigations and he outlined his role in the suspension of the Complainant on 7 November 2019 and in the Investigatory Meeting held with the Complainant on 11 November 2019. He stated he had no role in the disciplinary process after the investigation stage concluded. The Unit Manager was cross-examined on his evidence. In response to a question about Line 4 finishing early, he stated that he came to the conclusion that “manual intervention” was taking place. It was put to the Production Manager that he had conducted a pre-investigation but he denied that he had formed any view prior to meeting with the Complainant on 11 November 2019. It was also put to the Unit Manager that the evening shift Supervisor was not interviewed as part of the investigation. He accepted this and also that he had not spoken to the Complainant’s Supervisor as part of the investigation. Under cross examination he also stated that he had been advised by HR to suspend the Complainant. The Unit Manager accepted under cross examination that the Complainant was not afforded all documentation prior to the investigation meeting of 11 November 2019 but he stated it was open to the Complainant to seek an adjournment. In response to questions about the production records, the Unit Manager pointed to the Complainant’s signed initials which he stated falsely certified that the proper visual inspection had occurred. The Unit Manager was also questioned on the reference in the suspension letter of 7 November 2019 to “an allegation of gross misconduct” but he stated that had not been decided until after investigation meeting. It was also put to him that the investigation exceeded the activity of fact finding which he disputed. Summary of HR Official’s evidence: The HR Official explained his role within the Respondent and his involvement in the investigation process and that the decision to suspend was based on health and safety concerns. In his evidence, the HR Official explained that the reference to gross misconduct in the letter of suspension was to make the Complainant aware of the seriousness of the allegation. He also explained the Respondent’s procedures. He stated that in response to a finding of gross misconduct there were a number of sanctions available but that he had no role after the investigation was concluded. He stated that based on the evidence and the Complainant’s own admissions it was not necessary to interview the night shift supervisor as his evidence was “not relevant”. The HR Official was cross examined on his evidence including in relation to the matter of gross misconduct, on the night shift supervisor not having been interviewed and in relation to any information provided to him prior to the commencement of the formal investigation. Summary of Production Manager’s evidence: The Production Manager gave evidence in relation to his receipt of the Investigation Report and his meeting with the Complainant on 28/11/19 for the purpose of hearing the latter’s observations on the report. The Production Manager stated that he gave full consideration to the Complainant’s observations on the investigation report and his written response to the report. He stated that he was not influenced by the Unit Manager or the HR Official who had conducted the investigation. He stated that what led him to terminate the Complainant’s employment, was that the Complainant “knowingly” operated the production line with the visual inspection process (AOXI) switched off thereby allowing potentially faulty product to pass through and wilfully disregarding a known quality assurance process put in place to protect the Respondent and its customers. The Production Manager stated this amounted to a fundamental breach of trust on the part of the Complainant and he heard no evidence that this trust could be repaired. He stated that he had no further role in the disciplinary process after he issued the letter of termination of 6 December 2019. The Production Manager was cross examined on his evidence. In response to questions, he stated that it was correct for the Unit Manager to carry out the investigation as he had the requisite knowledge. He clarified that he had not spoken to the night shift Supervisor who he stated was under investigation at the time and was subsequently dismissed. He stated that the night shift Supervisor had denied instructing anyone to turn the delay function off but also stated that he/the Production Manager couldn’t remember whether he knew that at the time. It was put to the Production Manager that the practice of turning the delay function off was widespread in the company but he disputed this. It was also put to the Production Manager that in 2018 there was a recall of cameras but no disciplinary action was invoked and that on this this occasion there was no evidence of any faulty product passing through. He responded that the bond of trust had been broken, that he was satisfied there was no issue on the other production lines and that the Complainant had not denied operating the production line without the delay function. In response to a question on the sanction of dismissal, the production manager stated that the breach of trust was the “tipping point” for him. Summary of Site General Manager’s evidence: The Site General Manager outlined his role in the appeal process including his consideration of the Complainant’s letter of appeal of 11 December 2019, the appeal meeting of 19 December 2019 and the appeal decision of 9 January 2020 which upheld the Complainant’s dismissal. He stated that as part of his deliberations, he considered whether dismissal was appropriate in circumstances where the Complainant was asserting that he was instructed by the night shift Supervisor to turn the delay function off. In that regard, he stated that he was satisfied the Complainant was aware that product was passing through too quickly and that this issue was confined to the production line on which the Complainant was working. The Site General Manager stated that he did not take dismissal lightly and that he weighed up whether a final written warning or dismissal was the appropriate sanction. In deciding on the dismissal sanction he stated that he considered that the Respondent worked in a regulated industry, that its performance and reputational standards were crucial, that it had a small customer base and a lesser sanction was not a reasonable response to bypassing or circumventing the Respondent’s AOXI standards. He also considered that the Respondent had followed the disciplinary procedures accurately. Under cross examination, the Site General Manager accepted that no actual damage product had passed through as a result of the delay function having been turned off. In response to a question that the Respondent had not considered the Complainant’s length of service and unblemished disciplinary record as mitigation, the General Manager stated that the Complainant should have been more aware of standards as a result of his length of service. It is the position of the Respondent that the outcome of its investigation report confirmed that the Complainant knowingly operated AOXI with the delay turned off, which could have resulted in potentially faulty product passing through the line undetected, that the AOXI inspection process was bypassed and that the Complainant falsified the checklist documentation and inputted incorrect information. The Respondent stated that if faulty product was delivered to its customers, this could cost millions - for example in replacing faulty parts, in product recall, reputational damage or warranty failures. The Respondent submitted that the Complainant “was aware of the potential consequences of his action…” and consequently this led to a complete breakdown of trust in the employment relationship and that the Complainant’s actions constituted gross misconduct. In terms of the disciplinary process, the Respondent stated that this was in accordance with its internal Disciplinary and Grievance Procedure. In that regard the Respondent stated that following his suspension on 7 November 2019, the Complainant was furnished with Terms of Reference for the investigation, that he was afforded representation by his SIPTU Shop Steward throughout, that the minutes of meetings were provided to him for his observations/agreement and that he was afforded a right of appeal following his dismissal on 6 December 2019. The Complainant was paid 8 weeks in lieu of notice and his last pay date was 12/12/2019. In all the circumstances, the Respondent stated that it had discharged the burden of proving the dismissal was fair, that the process was conducted in accordance with fair procedures and that the sanction of dismissal was proportionate and reasonable in all the circumstances. |
Summary of Complainant’s Case:
The Complainant was employed as an SMT (Surface Mount Technology) Operator from October 2003 until his dismissal on 6 December 2019. The Complainant stated that he was paid €18.18/hour and that he worked 38 hours/week on the night shift. The Complainant explained how the production line operated, cycle times of production and he stated that the focus was on hitting production targets. He stated that he reported to the night shift Supervisor. In terms of the AOXI visual inspection process, the Complainant stated that he had 2 – 3 hours training in total on the system before doing his exam for which he got 97%. He stated that his performance review meetings were generally positive. In terms of the allegation, the Complainant stated that his night shift Supervisor came to him and asked him to run the production line with the delay function turned off. The Complainant stated that he “knows delays have been removed on other shifts” and this was done by previous Production Managers. The Complainant stated that he couldn’t leave the production line and that there was no one else to report to in relation to his Supervisor’s instruction. The Complainant stated that he was suspended from work on 7 November 2019 for an act of gross misconduct and that he was not accompanied by any representative at the time. The Complainant stated that he met with the investigation team on 11 November 2019 and at that meeting he was accompanied by the SIPTU Shop Steward. The Complainant maintained that the allegation put to him at this meeting was different to that which had been outlined in writing to him – vis by-passing the visual inspection process. The Complainant stated that at the meeting of 11 November he was presented with and asked for his comments on various technical documentation in connection with the allegation which had not been furnished to him prior to the meeting. He stated that at the meeting the Unit Manager advised that he had carried out his own investigation including observations on the floor and had asked engineering to investigate cycle times. In response to the allegation, the Complainant advised the investigation team that he had worked on other lines previously where the delay function had been turned off, that the issue was not limited to his production line and that it was turned off on the night he was suspended. The Complainant stated that on a previous occasion he had been asked by his Supervisor to turn the delay function off and that he had informed his Supervisor he did not know how to do that. The Complainant stated that on the night in question he had moved to AOXI line 1 as his own line 4 was scheduled to be down. He stated that on starting work on line 1 he could see that the delay function had been turned off. The Complainant stated that he did not change or turn the delay function off, that he had never been trained on the delay function and that he did not know how to change it. He reiterated that he had been instructed by his Supervisor to run the line with the delay function turned off. The Complainant outlined what occurred at the investigation meeting on 11 November 2019. He stated that he did not consider he received a fair investigation, that the Unit Manager had drawn conclusions prior to the meeting including that it was operator interference at issue. The Complainant also maintained that the other SMT Operators and his Supervisor should have been questioned in the course of the investigation. The Complainant submitted 11 points of response to the Investigation Report including that the issue should not be deemed gross misconduct as he was following his Supervisor’s instructions, that notwithstanding that the delay function was turned off he never bypassed any production board without proper inspection, that he did not knowingly falsify any document, that turning off the delay function was a wider issue in the company, that the investigation was in breach of fair procedures in a number of respects including insufficient notice of meetings, insufficient time to review documentation, predetermination that the allegation constituted gross misconduct and prejudgement on the part of the Investigation Team. Thereafter the Complainant outlined that he met with the Unit Manager on 28 November 2019 for the purpose of reviewing his/the Complainant’s observations on the investigation report. There was a further meeting on 5 December 2019 between the Complainant, his Shop Steward, the Production Manager and the Respondent’s HR representative, at which the Complainant was advised that his employment was being terminated for gross misconduct. The dismissal was confirmed by letter of 5 December 2019. The Complainant appealed the dismissal on 11 December 2019 and set out 12 grounds of appeal. An appeal meeting took place on 18 December 2019 however the dismissal was upheld. The Complainant was cross examined on his evidence. Under cross examination the Complainant stated that he had received training on the AOXI system in 2017 for about 2 to 3 hours over a couple of days and had passed with 97%. He also accepted that he had received training on SMT. The Complainant agreed under cross examination that the delay function was .8 seconds, he stated that he was familiar with the Respondent’s clients and that “issues could arise if something not checked” and he accepted that the expectation was that checks were conducted. He stated that did not think of the potential health and safety risk to the end user because he always considered that faulty product “would be caught”. In terms of the visual inspection process, the Complainant stated under cross examination that whilst he accepted that the .8 second delay function was “there for a reason” he could be certain there were no mistakes as errors could be caught in less than that time. Under further questioning the Complainant accepted that he had operated the production line with the delay function turned off. It was also put to the Complainant that he had initialised the relevant recording sheets and he accepted that his initials were on the sheets and that the documentary evidence showed the AOXI was off on the night in question. In response to a question as to why he had not reported the fact that the delay function was turned off, the Complainant stated that he was never informed of any process to make such complaint. Summary of Shop Steward’s evidence: The Shop Steward outlined that she represented the Complainant at the various meetings convened as part of the investigation and disciplinary process. She stated that she considered the investigation was not fair as there was “nothing there to quantify the complaint” nor was the Complainant provided with any statement or record of interview with the evening shift Supervisor or the night shift Supervisor. Under cross examination the Shop Steward accepted that the Unit Manager had verified that the delay function was turned off via the systems data and that she was provided with these records. It was put to the Shop Steward that in these circumstances there was no need to interview others, however she did not accept this and maintained that the investigation should have been wider involving other operators and supervisors. It is the position of the Complainant that he was unfairly dismissed due to the procedural flaws outlined, the lack of impartiality on the part of the Respondent and that the Respondent’s decision was unreasonable. The Complainant also submitted that the sanction of dismissal was grossly disproportionate given his previous employment history and length of service. Furthermore, he stated that the Respondent had suffered no actual loss, damage or detriment as no faulty product had actually passed through. By way of mitigation, the Complainant outlined that he had succeeded in getting new employment in mid January 2020 but that his rate of pay was lower and that he had lost benefits such as his VHI membership, pension contributions, Christmas vouchers and attendance bonus. |
Findings and Conclusions:
CA-00035907-001 Section 1 of the Unfair Dismissals Act [1977-2017]. In that regard, of the Act defines dismissal as follows: “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……” Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”. Section 6(4) of the Act prescribes the circumstances where a dismissal may be justified:
6 (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 ……
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”
Section 6(6) of the Unfair Dismissals Act [1977-2017] provides that: “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)….. or that there were other substantial grounds justifying the dismissal”. Section 6 (7) of the Act provides that in determining whether a dismissal is unfair, regard may be had: “(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice…..” Section 14(1) of the Act refers to such dismissal procedure as was furnished to the employee upon entering the contract of employment. Sections 7 (2) of the Act provides that an Adjudication Officer may consider “compliance or failure to comply by the employer in relation to the employee, with the procedure referred to in subsection (1) of section 14….or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,….” The combined effect of the above provisions is to place the statutory burden of proof on the Respondent to show that it acted reasonably, in accordance with its disciplinary procedure or relevant code of practice and that the reason for the dismissal is substantial and/or within the parameters of Section 6(4). The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out the concerns it may have about the poor performance or conduct of an employee and at the same time, afford the employee the opportunity to answer the allegations and make representations as to why he/she should not be disciplined or dismissed. This rationale coupled with the principles of fair procedures are set out in Statutory Instrument (SI) 146/2000 which is the Code of Practice applicable to workplace disciplinary matters. I have summarised the requirements of SI 146/2000 as follows: · To comply with the general principles of natural justice and fair procedures; · That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned; · That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available; · That generally, the stages in a disciplinary procedure will be progressive, for example, an oral warning, a written warning, a final written warning, dismissal and that there is some consideration of other appropriate disciplinary action short of dismissal. In the Supreme Court decision in Iarnród Éireann/Irish Rail V McKelvey [2019] IESC 79, Charleton J. made the following comments about the conduct of a disciplinary process: “Dismissal is therefore about substance; whether an employee is competent or qualified to do the job, or whether misbehaviour is involved. Section 5(b) of the Unfair Dismissals Act 1993 introduced an entitlement to the Workplace Relations Commission to look at procedure and as to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” and “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure” agreed for dismissal….. Thus an employee “must be given the reasons for [any] proposed dismissal, and an adequate opportunity of making his [or her] defence to the allegations made against him [or her]…..” Further to the above principles, it has been well established in case law that it is not the function of an Adjudication Officer to re-investigate disciplinary complaints or to substitute their view for that of a Respondent employer. Rather the focus is whether the decisions arrived at are rational, reasonable and based on the information available.The Labour Court summarised this rationale in the case of Clancourt Management Ltd T/A Clancourt Management V Mr Jason Cahill [UDD2234], where it stated: “In cases under the Unfair Dismissals Act where misconduct is stated as the basis for dismissal the test for this Court is that which was set by Lord Denning in the British case of British Leyland UK Ltd v. Swift (1981) IRLR 91, to determine if the dismissal falls into a ‘band of reasonableness’, a test which was confirmed in this jurisdiction in Foley v. Post Office (2000) ICR1283. Lord Denning stated that ‘If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.’ He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but ‘If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him’. Therefore, the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall into this band of reasonableness? ......It is not the function of the Court to re-investigate disciplinary complaints. In looking at the outcomes of the investigations, the Court needs to consider if the decisions arrived at are rational, based on the information available to the investigators…….There is no doubt that a record of good service to an employer might be a significant factor for consideration in a possible dismissal. Equally, however, it may be of little help in evaluating possible action. It depends on the particular circumstances of the case………It is not the Court’s role to substitute its view for that of the Respondent and to determine if the Court would have dismissed the Complainant if it found itself in the role of the Respondent……” Against the foregoing backdrop and having carefully considered all the sworn evidence, submissions, documentation and case law cited, I make the following conclusions: - I am satisfied that the reference to gross misconduct in the letter of suspension of the 7th November 2019 does not justify a finding on my part of pre-judgement. That letter clearly referred to an allegation of gross misconduct and further stated “Your suspension does not constitute disciplinary action and does not imply any assumption that you are guilty of misconduct”; - In relation to the involvement of the Unit Manager in the investigation process, I am satisfied that the investigation required technical knowledge in order to establish and consider what occurred with the A0XI system and the relevant records. That being said I accept the concerns of the Complainant that as the Unit Manager was involved in the investigation process prior to the Investigation meeting of 11 November 2019, those prior dealings could have or did taint his view as to what occurred. However, I note that once the investigation process was concluded the Unit Manager had no further involvement. Further, the Complainant was provided with the Terms of Reference in advance which notified him that the Unit Manager and the HR Official would be conducting the investigation; - I have carefully considered the evidence in relation to the Complainant’s concerns that the allegation changed in the course of the investigation/disciplinary process from the original charge of bypassing the AOX inspection process as referred to in the letter of suspension of 7 November 2019. In this regard, I am satisfied that it was not unreasonable to set the charge of bypassing the AOX visual inspection process within the general heading of breach of health and safety regulations/procedures from the sample list of gross misconduct set out in the Respondent’s Disciplinary Procedure – which also states that the list is not exhaustive. Further I consider the reference to breach of trust - which generally arises from the employee/employer relationship - a consequence of an allegation of misconduct as opposed to a description of a charge of misconduct; - I have carefully considered the minutes of the investigatory meeting of 11 November as a result of which I am satisfied that the Complainant was fully aware of the nature of the allegation and was provided with the relevant technical information which had been gathered by the Unit Manager. In her evidence the Shop Steward accepted that the Unit Manager had verified from the systems data that the delay function had been turned off and this was not disputed by the Complainant; - The Terms of Reference for the investigation stated four objectives - ie to investigate the alleged bypassing of the Valeo AOX inspection process, to establish whether - on the balance of probability - the alleged incident was upheld or not upheld or to establish if an act of gross misconduct had occurred pursuant to the Respondent’s Disciplinary and Grievance procedure. The outcome of the investigation was that the allegation was upheld and that “Under the Disciplinary and Grievance procedure…..we find that an act of gross misconduct has occurred, specifically under the following offence – “Breach of health and safety regulations, procedures or training, resulting in oneself, fellow employees, customers or members of the public being placed at risk”. The Complainant has objected to the finding of gross misconduct at the investigation stage and argued that that stage should have been confined to fact finding. Whist this is generally the case and is referred to at paragraph 5.2 of the Respondent’s Disciplinary Procedure, I note that the procedure also provides that “The Investigative team is tasked with the responsibility of drawing up Terms of Reference for the investigation. [and that] The investigation will be conducted strictly within the guidelines of the terms of reference” and that “The investigative report shall contain……Investigative findings [and] Investigation Conclusions”. In terms of the sanction of dismissal, a key issue is whether the finding of gross misconduct from the investigation stage meant that dismissal was a fait accompli and that the subsequent disciplinary and appeal stages were merely window dressing. In this regard I have carefully considered the Respondent’s Disciplinary and Grievance Procedure and the evidence. The Disciplinary Procedure states that “In an instance of gross misconduct an employee will be dismissed without going through previous stages….” but also states that “If the disciplinary investigation upholds the charge of gross misconduct it will most likely result in dismissal….”. In his evidence the HR Official stated that there were a number of sanctions available in response to a finding of gross misconduct. In their evidence both the Production Manager and the Site’s General Manager stated that they considered but decided against issuing the Complainant with a final written warning. On balance I am of the view, that the finding of gross misconduct at the investigative stage did not automatically lead to the Complainant’s dismissal; - The Complainant was represented throughout the investigation/disciplinary process by his Trade Union Shop Steward. He was provided with the minutes/records of all meetings, signed same, was afforded the opportunity to submit observations and a right of appeal. In relation to the Complainant’s concerns that he was provided with information for the first time at the investigation meeting of 11 November 2019 I accept the Respondent’s position that it was open to him to seek an adjournment in order to consider new information/documentation and reply at a later date. In relation to the Complainant’s submission that the investigation should have been broadened and others interviewed particularly the night shift Supervisor, I am of the view that it was open to either party to bring in other witnesses. Whilst the evidence of the night shift Supervisor could have been influential in terms of the alleged instruction to turn the delay function off, the Respondent has maintained the position that the Supervisor’s evidence was not relevant as the charge related to operating the production line with the delay function turned off – which was accepted by the Complainant. - The Complainant stated that he did not escalate the matter as he stated that he was never informed of any process to do so. For its part the Respondent identified various personnel to whom the Complainant could have reported. I am of the view that given the Complainant’s knowledge and training on the AOXI system, it was not unreasonable for the Respondent to hold the position that the Complainant should have escalated matters and/or that it would have expected the Complainant to do so. In light of the foregoing, the question for me is whether the sanction of dismissal was within the band of reasonable responses available to the Respondent. In my view, given its stated concerns for the quality of its product and health and safety obligations and considering the Complainant’s admissions, it is difficult to see how the decision of the Respondent could be seen as so unreasonable that no reasonable employer would have arrived at that decision. On balance, I am also satisfied that overall the Complainant was afforded adequate fair procedures. Accordingly, having carefully considered all the sworn evidence, submissions, documentation and case law cited, I find that the Respondent has discharged the burden of proving that the dismissal of the Complainant was not unfair. |
Decision:
Section 8 of the Unfair Dismissals Act [1977-2017] 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.
CA-00035907-001 For the reasons outlined this complaint is not well founded. |
Dated: 19th June 2023
Workplace Relations Commission Adjudication Officer: Anne McElduff
Key Words:
Gross Misconduct, Dismissal |