UD1304/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                 CASE NO.

                                                                                                                        UD1304/2012

Employee     -             claimant                                

against

Employer         -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr. N. Russell

Members:        Mr. J. Horan

                        Mr. N. Dowling

heard this claim at Wexford on 20^th March 2013

                                           and 9^th May 2013

                                           and 27^th August 2013

                                         and 28^th August 2013

Representation:

Claimant: In person

Respondent: Mr. John Farrell, IBEC, Confederation House, Waterford Business Park,

         Cork Road, Waterford

Background:

The respondent representative opened their case to the Tribunal. The respondent is a medical device manufacturer. The respondent employs circa 800 employees, of which circa 500 are general operatives and 140 are involved in packaging. The respondent explained that checking and inspecting is an integral part of general operative (GO) work and checking and inspecting is not to be confused with quality inspecting or the work that a Quality Inspector (QI) does. Also a QI reports to a different department than the department that a GO reports to. A GO has to check 100% of all of their own work. If re-training is needed then an employee will be re-trained.

It is normal for an employee to move between different departments. There are a number of ways that movement can occur: employees can request to move, personnel can move employees, there can be internal movement due to promotion, movement due to sick leave or annual leave or due to employees leaving can occur.

The claimant was appointed to the position of a Quality Inspector for a period of time.

The manufacturing and processes in the company are highly regulated. There are three audits which are carried out on the products. One is a FDA audit, another is an ISO audit and the third is a customer audit of the product/process. To enable to get a safe product to a customer the product must be traceable to the “day and date” of production.

The respondent representative explained the Versatility Chart that the respondent used. The Versatility Chart (VC) was requested by the claimant, and the VC shows that the claimant was trained in 6 tasks. Some employees were trained in less tasks than the claimant; out of 55 employees that were doing work comparable to the claimant 5 were trained to 6 tasks, 29 were trained to do less than 6 tasks and 17 were trained to do more than 6 tasks. It is the supervisors job to ask employees to do different work/tasks if needs be.

The representative explained a not unrelated matter in that the claimant’s husband (DB) also worked/works with the respondent company. About 12 months before the claimant was dismissed the claimant’s husband had an accident at work.   He did not attend work due to the accident. The company paid him his full salary for 12.5 months; they paid his medical costs, paid for medicines and paid gym membership/ rehabilitation for him.

A liability claim for the matter was in the hands of the company insurers.   They advised that DB was not to be paid anymore on or about the 5^th December 2011. DB phoned a named person in the company (RF) about this and RF explained the reason why they were not paying him his salary.

DB told the company that he had a difficulty because he could not drive and subsequently it was requested that the claimant change her shift cycle to accommodate them in their domestic situation. The company moved the claimant to a four-shift cycle. There was a four year waiting list for the four shift cycle but the company moved the claimant up the list, i.e. the claimant “jumped” over fifty other employees that were on the waiting list. The company did this “with some trepidation”, but did so “nevertheless”.

The claimant arrived into work on the 5^th December 2011. She was asked to re-train on the “single pack” system. She had not been trained on this in 6 months so the regulations required that she be re-trained. The claimant refused to do the training and asked if she could go home. The claimant went home.

If an employee refuses to do re-training it leaves the employee open to summary dismissal. But in this case that did not happen. This situation continued for 8 months. The company had offered the claimant a “cooling-off” period. The claimant asked for a one year cooling-off period and then asked for a three year cooling-off period.

The representative explained that the claimant’s rationale was that during the three year period there were other employees who were trained less and the company completely refutes that assertion.

JH from the company told the claimant that she had had a three month cooling-off period and that he would give her another three month period and that this was unprecedented. This did not work out. The time scale came to the end of May 2012. The company issued a series of warnings some of which were appealed. On each occasion the claimant met the company she brought her husband as a representative. The company’s position is that there is no acceptable explanation for a refusal to refuse re-training. The claimant had at least seven explanations as to why she refused to re-train: some of these were as follows, that the company “knew why” she refused, because of pay, that the company “owed her”, others who were not trained, that she did not want to, that she did not want to continue to do inspections

This situation had commenced circa December 2011, and in January 2012 the company had offered the claimant a four cycle shift which meant she did not have to do certain tasks.

No employee in 19 years refused to do a task in this fashion. A business cannot be operated whereby an employee chooses what to do or not to do. Normal duties in this case mean what the claimant was doing before the 5^th December 2011. The company’s case is that all the claimant was asked to do is what she had been doing; nothing more nothing less.

The claimant appealed her dismissal.

Respondent’s case:

The Tribunal heard evidence from RF who works in the HR department of the company.

The first involvement she had in the matter was when SW who was/is a colleague of hers in the HR department was dealing with the matter i.e. ML who was the claimant’s supervisor.

Note: SW is a colleague of the witness both of whom work in the HR department.

            ML is a supervisor, and the claimant’s supervisor.

            UN is the senior packaging person to whom ML reports to.

            JH is the general manager.

The witness met the claimant and UN. The claimant said that she had been refused leave. The witness got the holiday request book and she saw that the claimant had requested twelve leave requests and was granted nine and three were refused. This was consistent with other employee’s requests. It was for the supervisors to grant leave or not. Another person (AX) in HR also looked after holiday requests and the requests that the claimant had asked of AX were all granted. The claimant told them that she had asked for leave pending her son’s future graduation but ML said that she never made that request. The witness asked ML to grant the leave and he agreed to compromise and allowed the claimant to work just for a few hours on the day in question.

Regarding the matter of re-training they allowed the claimant a three month cooling-off period.   This was because the claimant had said that she was under stress and also because they wanted to avoid confrontation. EON was responsible for allowing the three-month period. (EON to give evidence of this at a later date).

The claimant’s position was that the three month period would not be enough. At the end the claimant wanted a three year cooling-off period.

The claimant was asked again to do re-training and she refused. A document dated the 9^th January 2012 was opened to the Tribunal. The claimant was asked to do a specific task i.e. re-training and she refused.

They issued the claimant with a verbal warning and had this put in writing. The claimant refused to sign the document and said that she wanted to see the plant manager (JH) and appeal the warning. They were hoping that the claimant would accept the offer of a three month cooling-off period (3MCOP).

JH was overseas so they met when he returned. They met on the 10^th or the 18^th February 2012. The witness attended the meeting between JH and the claimant and she was the note taker at the meeting. The claimant asked for a three year cooling off period. JH said he would consider everything and come up with a solution.

JH wrote to the claimant on the 9^th March 2012. The result was that the warning that was issued in January was extinguished.

The claimant then said that she was going to take her grievance to the owners of the company in the USA.

Regarding the claimant’s assertions regarding the training and her training. The witness treated this as a formal grievance from the claimant. The witness went to the training department. She asked the supervisors why some people were given less training and some more training. The witness gave evidence to the Tribunal as to the information she acquired and to the various levels of training etc.

A letter dated the 4^th May 2012 was opened to the Tribunal. On the 25^th May 2012 the three month leeway that JH had identified expired. The company extended this. However just days later the claimant still refused to do re-training. They invited the claimant to a meeting on the 06^th June and issued her with a verbal warning.

The claimant at some point had a complaint about the allocation of overtime. SW analysed all the overtime allocations.

On the 18^th June there was an appeal of a verbal warning.

On the 20^th June the claimant was issued with a written warning.

There was some point that the claimant made about minutes of a meeting but the witness explained that the claimant did not actually make a complaint or allegation that something was or was not said at the meeting.

The witness wrote to the claimant on the 11^th July 2012, this was to outline to the claimant that she had actually had been carrying out the duties that she was refusing to do.   The witness told the Tribunal that the claimant was an excellent employee and her attendance was excellent. However the claimant yet again refused to carry out her duties.

She asked the claimant to carry out her duties again and the claimant refused. She reminded the claimant that she was on a final written warning. She told the claimant that she would ask her again in writing to carry out her duties and if she refused there would be serious consequences.

It was put to the witness whether she formed the opinion that the claimant refused to carry out her because of her husband’s situation, she replied that she did not at the beginning. The witness was asked if she was aware of the reason why the claimant refused to carry out her duties on the 5^th December 2012 and she replied that she was not. They did not want to dismiss the claimant they just wanted her to carry out her duties. However she believed that the claimant was not going to carry out her duties “no matter what”. She treated the situation as being totally separate from her husband’s case. The claimant was dismissed from her employment. The claimant appealed the decision.

In cross-examination the claimant asked the witness why she was dismissed. The witness replied that it was because “for not carrying out your duties”.

JH gave evidence. He had carried out the appeal hearing and told the Tribunal that “it was not his ambition to dismiss” the claimant. He had hoped she would return to her duties. At the hearing the claimant told him that she felt stressed because of the cessation of her husband’s (DB) salary. When the meeting ended he took time to review the matter in full. He spoke to the HR department, a Supervisor and ML. The decision to dismiss was upheld.

ML gave evidence. It was identified that staff levels were low in the single line department. He spoke to the claimant but she did not want to work there and wanted to resign her position. He was surprised. The claimant had not mentioned stress or money worries.

On cross-examination he said that, as her team leader, he was aware the claimant needed some refresh training.

SW from the HR department gave evidence. She stated that she had been unaware the claimant was suffering with stress and was not aware the claimant required time off. When the claimant had informed her she was feeling stress she, the witness, assumed it was because of the claimant’s husband (DB).

Claimant’s case:

DB (the claimant’s husband) gave evidence. He had been employed by the respondent and had sustained an injury while at work. Over time he had a number of surgeries.

He explained to the Tribunal that the claimant had had good and bad days, like everyone else. She had been having problems working in the packing department. After he sustained his injury the respondent accommodated a shift change for the claimant in order to drive him to work. However, after 3 months the claimant was told to return to packaging.

He told the Tribunal that, he felt, the claimant was “treated like a beginner” on her return to the packaging department. Personal problems arose with the claimant and the witness, both were under considerable stress at the time. Matters did improve after time.

On cross-examination he explained that his wife’s complaint was that she had been allocated more responsibilities to other staff who were paid the same rate of pay. When put to him that the claimant could changed her mind regarding the matter he replied that she could have but so could the respondent. He told the Tribunal that he did not feel his wife was dismissed because he had submitted a claim against the respondent.

The claimant gave evidence. She commenced employment with respondent in 2005 as a machine operator. She was later moved into the packaging department as a production operator as there was a shortage of personnel at the time. She had been a line lead but, in 2008, because of a low response to complaints she had lodged to the HR department she stepped down from the position.

In 2010, after an accident had occurred with her husband on-site, she was facilitated with a different shift in order for both she and her husband to work on the same shift and travel to and from work together. She signed a 3 month contract but in November 2010 there was no more work on this 12-hour shift and she was returned to the packaging department. This shift was the opposite to the shift she had previously worked. Management felt she needed to be retrained / refreshed even though she had not been absent from the line in 6 months. She told the Tribunal she had extra responsibilities to carry out but was not paid any extra wages. She felt stressed and tired regarding the amount of work she was expected to carry out. This continued until her dismissal in August 2012.

She appealed the decision to dismiss her but it was upheld. She gave evidence of loss.

On cross-examination she stated she had nor refused to carry out tasks and was the only person moved to carry out more responsibilities. She agreed that she had received a verbal and written warning. She thought the respondent would “step down” and the situation would return to normal. When asked she said that she had not considered “stepping down” from her decision.

Determination:

During the course of the hearing the Tribunal was given a full understanding of the role of a General Operative within the Packaging Department of the Respondent Company, of the manner in which a General Operative is trained and of the purpose and relevance of Versatility Charts. The Tribunal also acquired a full understanding of the claimant’s position and, indeed, of her belief that the system adopted by the Company pertaining to allocation of duties within the Packaging Department was unfair.

By letter dated the 3^rd of August 2012 the claimant was informed of the termination of her Employment by the Respondent’s HR Director for “refusing to carry out normal duties”. The evidence heard throughout the Hearing supported the Company’s position that the dismissal was for this reason only.

It is well established that wilful disobedience on the part of an employee to a lawful and reasonable order given by his/her employer is a reason for dismissal.

It was clear from the proceedings that the claimant failed to follow the request from her employer to carry out certain duties. Analysis of the documentation placed before the Tribunal and evidence given confirmed to the Tribunal that it was legitimate and reasonable for the employer to request that the particular duties be carried out by the claimant and that indeed, these were duties which the claimant had carried out in the past and was expected to carry out under the terms of her Contract of Employment. Flexibility within the Company’s Packaging Department was an inherent element of employment there and, indeed, up until the 5^th of December the claimant had carried out her duties accordingly.

The Tribunal considered whether it was reasonable for the claimant to refuse to carry out the work requested of her. It emerged during the course of the proceedings that the claimant had taken what she considered to be a principled stand as she saw it in what, essentially, could be viewed as amounting to a pay dispute.

At a meeting on the 6^th December with SW the claimant confirmed that she was looking for equal pay for equal work. In evidence before the Tribunal the claimant advised that by the meeting on the 10^th February 2012 with JH she realised that the Company was not going to pay additional monies to her and she then concluded that she would settle for an extended period away from certain duties. Again, the claimant saw this as a way of ensuring that she received equal treatment within the Packaging Department.

The issue of stress appeared in some of the documents put before the Tribunal. In his evidence JH confirmed his reference to stress at the meeting on the 10^th February, however, the Tribunal was satisfied from the claimant’s own evidence that this was not a factor in the position adopted by her.

The Tribunal is satisfied that while the claimant was entitled to raise a grievance under the Company’s Grievance Procedures she was not entitled to withdraw her Labour or refuse to carry out certain duties while her grievance was being considered. This was not legitimate manner of protest.

Up to the beginning of the dispute the claimant had been a model employee and is clearly a very principled person and it was, indeed, regrettable that she ultimately found herself losing her Employment as a result of becoming entrenched in a position from which she would not resile.

The Tribunal also had due regard to the Company’s actions and conduct to see if either contributed in any way to the situation which developed.

It seems clear that the Company took the view from the outset that the position adopted by the claimant was related to the Company’s discontinuance of her husband’s sick pay. This may or may not have been a reasonable assessment on the part of the Company, however, it is a moot issue in the opinion of the Tribunal as the Tribunal is satisfied that the view taken by the Company did not colour its approach to the grievances raised by the claimant.

The Tribunal is of the opinion that proper enquiry was conducted into the claimant‘s grievances and that the Company reported back to her in relation to same. An exchange of correspondence occurred around the definition of “normal duties,” however, the Tribunal is satisfied that the claimant could have been under no misunderstanding as to what her normal duties were and that the Company acted reasonably in the manner in which it dealt with her enquiries.

At a meeting on the 20^th June 2012 the claimant indicated that she was of the view that the Company was intent on dismissing her. The Tribunal does not believe that this was the case and, indeed, the Company seemed anxious not to terminate the claimant’s employment. Indeed, at the Tribunal, the claimant clarified that her understanding at the time was that she would be dismissed if she did not carry out the duties required of her and it was in this context that she had made the observation in June 2012.

The Tribunal also had due regard to the procedures followed by the Company and considered whether these were reasonable and correct. The Tribunal is satisfied that the procedure was progressive, that the claimant was given a hearing at each meeting and that she was given the right to be accompanied and, exercised this right. The claimant exercised her right of Appeal. It is clear that the claimant did understand that she was facing dismissal if she continued to refuse to carry out her duties. Indeed, on the 10^th of February 2012 under the Company’s “Open Door Policy” JH met with the claimant and allowed her some time away from certain duties believing that it would give her time to reflect and change her position. In the context of this a verbal warning which issued to the claimant in the 10^th February 2012 was withdrawn. It appears to the Tribunal that the Company was acting reasonably in this respect.

On the conclusion of this “cooling off” period, as it was described by some witnesses before the Tribunal the claimant again refused to carry out certain duties adopting the position that her grievances had not been addressed satisfactorily. It is the opinion of the Tribunal that, notwithstanding this view on the part of the claimant, she was not entitled to refuse to perform her normal duties.

In advance of any of the Disciplinary Meetings the claimant was informed of the purpose of the meeting and had a full understanding in relation to same. Following the issue of a Verbal Warning on the 6^th June 2012 the claimant exercised her right to Appeal and again following the Written Warning on the 20^th June 2012 and Final Written Warning on the 2^nd July 2012.

While the Notice of the meeting on the 1^st August 2012 did not specifically refer to the possibility that the claimant might lose her job the Tribunal is of the opinion from the evidence given that the claimant was under no illusion as to what might happen.

A concern the Tribunal did have was that the various Appeals were heard by RF who is one of the those who seem to have concluded from the outset that the claimant was adopting an entrenched position in response to the Company’s termination of her husband’s sick pay. The evidence of ML was that it was RF who told him at an early stage that the issue actually related to the claimant’s husband’s sick pay. Ideally, it would have been preferable had the Appeals been heard by someone who had not formulated this view. Having considered all matters, however, the Tribunal is satisfied that, notwithstanding that RF held this view, it did not impact on the manner in which she conducted the Appeals or on the fairness of those Appeals.

The Tribunal is of the opinion that it was reasonable for the Company to conclude, in of all the circumstances, that the claimant was not for turning and that dismissal was the only sanction reasonably available to it. The claimant had persisted in refusing to carry out certain duties and showed no intention of doing so.

The Tribunal had enormous sympathy for the claimant as she had essentially backed herself into a corner and at no stage was prepared to step down from the position adopted by her even when she knew, beyond doubt, that she was facing dismissal. The Tribunal has no doubt that the claimant believed the position adopted by her to be a principled one, however, the Tribunal is satisfied that the duties which the claimant refused to carry out were governed by her Contract of Employment and that there were no legitimate grounds for her refusing to perform those duties . It was not appropriate for the claimant to refuse to carry out certain duties in support of her grievances.

Significant was the fact that the claimant could, at any stage up to and including the dismissal, resiled from the position   adopted by her and agreed to carry out her full range of duties while, at the same time pursuing any grievances which she believed had not been fully addressed. The Tribunal is satisfied that the Company would have discontinued the Disciplinary Process had the claimant returned to her duties. The claimant, however, became entrenched in the position adopted by her and may have lost some perspective on the situation

It is extremely unfortunate that the claimant lost her employment as she was clearly a hard worker, a principled individual and an intelligent person. The situation that developed should never have arisen and it is most regrettable that the Company was obliged to dismiss the claimant. The Tribunal is of the view that a reasonable employer faced with the same set of circumstances would have adopted the same position.

It is the conclusion of the Tribunal that the claimant’s dismissal was fair and, accordingly, her claim under the Unfair Dismissal Acts fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)