UD126/2012

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms C. Egan BL

Members:     Mr B. O’Carroll

                     Ms H. Henry

heard this appeal at Galway on 10 October 2013

Representation:

Appellant:

                    In person

Respondent:

         Mr John Brennan, IBEC, Ross House,

         Victoria Place, Galway

The determination of the Tribunal was as follows:

This case came before the Tribunal by way of an employee appealing against the Recommendation of the Rights Commissioner reference R-110443-UD-11.

For clarification purposes the appellant shall be referred to as the employee and the respondent as the employer.

The employee began working for the employer, which is a manufacturer of medical devices from August 2008, as a production operative. The employer operates in a regulated environment where the following of production and quality procedures is paramount. The employee’s initial six-month probationary period was extended by a period of three-months on account of dissatisfaction with the employee’s time-keeping and attendance record.

On 27 March 2009 the employee and a colleague, having had difficulties with their working relationship, jointly signed a document prepared by the then human resource manager in which they agreed to improve communication in order to lead to a better working environment in the production area. It was agreed that they would:

• Treat everyone I work with in a mature and professional manner, with dignity and respect
• Leave past issues and difficulties behind and not to bring them up time and time again
• Greet each other courteously at all times
• To be open to constructive criticism in relation to work issues i.e. product quality or documentation errors etc. and will thank the person for bringing the issue to my attention
• If I am upset with someone, I will discuss this with them immediately and explain the reason why I am upset. This will be done in a calm and courteous manner, in private and should not cause offence

The parties accepted that breaches of this code of conduct would lead to disciplinary action.

On 13 October 2009 the employee’s production supervisor (PS) and the human resource representative (HR) met the employee for a return to work meeting, the employee having missed seven working days in September and then a further four working days in October 2009 in circumstances where she had taken 35 days sick leave since the start of the year. No disciplinary action was taken at this stage, but the employee was told that her absenteeism would be monitored for the rest of the year.

On Wednesday 4 August 2010 the employee’s working relationship with another colleague (DC) was called into question when the employee challenged DC in respect of a production inspection schedule. The section of the employer where the employee worked produced both respiratory sets and needles. The employee, who had noticed DC talking to the needles engineer (NE), then approached NE enquiring about the importance of the issue she had raised with DC as she did not think that DC had understood her. NE asked the production manager (PM) and PS to go to the production line to sort out the argument between the employee and DC. DC and the employee were then sent home for the rest of the day and suspended with pay for the following two days 5&6 August 2010.

On 9 August 2010 HR and PS met the employee, who declined the opportunity to be accompanied. She denied describing DC as “strange” or referring to DC as “Miss Psycho”. The employee explained that her “voice went higher” when trying to explain things and that this might make it appear that she was shouting on occasion.

On 10 August 2010 HR issued the employee with a final written warning of twelve months duration for having on a number of occasions initiated arguments with DC, shouting at DC and calling her names and undermining her by calling into question the quality of DC’s work. Reference was made to the March 2009 code of conduct agreement together with the June 2010 performance appraisal which indicated the employee’s need to improve her leadership and communication skills. The employee was advised of her right to appeal this decision but chose not to exercise that option.

On 1 March 2011 HR issued the employee with a verbal warning following failure to follow procedures in relation to a production batch operation. Despite the employee being the person who detected the error, the ensuing problem was the result of an earlier failure by the employee to follow proper procedures before the production run commenced.

On 5 May 2011 there was an argument on the production line between the employee and another colleague (AC) when the employee accused AC of making a racist remark. An investigation was conducted into the incident, and other employees in the vicinity of the incident were questioned. This investigation revealed no evidence to support the employee’s assertion in respect of her allegations against AC.

Consequently, the employee was called to a disciplinary hearing on 6 May 2011 which was conducted by HR and PS to answer an allegation that she had made an unfounded allegation that AC had made a racist remark against her. The employee again declined the opportunity to be accompanied at this hearing. As HR was satisfied that the allegation was unfounded, she took the decision to dismiss the employee as this represented a further disciplinary finding against her whilst on a final written warning.

The employee exercised her right of appeal to PM, and on 24 May 2011 the human resource manager (the manager) wrote to the employee to advise her of the rejection of her appeal.

Determination:

The employee chose not to appeal any of the findings against her until the decision to dismiss her on 6 May 2011. The Tribunal notes that the employee had relationship difficulties with nine of the twenty five production operatives in the section of the respondent in which she worked. The Tribunal is satisfied that the respondent conducted a full investigation into the incident of 5 May 2011. The employee was aware of the significance of the final written warning, both at the time it was issued and again following the production line incident, which resulted in the 1 March verbal warning. The Tribunal is satisfied that the working relationship between the employee and her colleagues had broken down. The employee was dismissed at the end of a fair procedure. For all these reasons the appeal under the Unfair Dismissals Acts, 1977 to 2007 must fail.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)