EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Dermot Haughey – claimant UD65/2012
against
Becton Dickinson Penel Limited – respondent
Becton Dickinson
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms F. Crawford B.L.
Members: Mr F. Moloney
Mr M. O'Reilly
heard this claim at Dublin on 18th September 2013
and 16th April 2014
and 17th April 2014
Representation:
____________
Claimant(s): Ms M.P. Guinness BL, instructed by:
Mr Daniel McLaughlin
B. Vincent Hoey & Company Solicitors
Law Chambers, Fair Street, Drogheda, Co. Louth
Respondent(s): Mr Alan Haugh BL
A & L Goodbody
Solicitors
IFSC, North Wall Quay, Dublin 1
The determination of the Tribunal was as follows:-
Summary of Respondent’s Case:
The respondent company is a medical devices manufacturer. The claimant was employed as a maintenance engineer from 1980 until the end of 2011. A company engineer gave evidence. His role is area process engineer on the PosiFlush line. This line manufactures hermetically sealed sterile saline filled syringes. The syringes are packaged in blister packs which are sealed using a Multivac packaging machine. A heated die unit creates the seals. When the machine was first put into use the top plate was heated (to 180° Celsius) but the bottom die was unheated. This result was that the first units through the machine were not properly sealed as the heat of the top plate had not transferred to the bottom plate. It was decided to scrap the first two indexes of product as a precaution every time the process started.
To remedy this problem the machine was retrofitted with a heated bottom plate. The bottom die was then capable of being heated to 65° Celsius and meant that the first two indexes no longer had to be scrapped. At the beginning and end of every batch produced a maintenance engineer records the temperature read out on the machine and records it on a form. The temperature from the top die and bottom die are on two different screens, as a result of the retrofitting. A batch is produced over the course of a week on day and night shifts (Monday to Friday). The witness went through training forms which show that the claimant had received training on the upgraded system.
On the morning of Monday 19th September 2011 the claimant recorded the bottom die’s temperature at 65° Celsius. On Thursday night the area process engineer received a phone call from a technician. After a power cut the technician had gone through a routine check on the line and discovered that the bottom die was switched off. He told the technician to switch the machine on and continue the batch, noting the point when the batch restarted.
The area process engineer assisted in an investigation the following morning with the flush engineer. They took samples from different parts of the batch and tested the seals. They found issues with the seals which indicated that the bottom die had not been switched on. The problem started from the first index made on Monday morning. He did not speak to the operators on the line as the machine was either switched on or off. He summarised what he found for the flush engineer.
In cross-examination the area process engineer explained that he had been working over weekends on a new packaging product and had used the Multivac machine for this. He reset the parameters, replaced the gasket and switched off the machine on the Saturday evening 17th September. He did not log the use of the machine as would normally be done when in production. The witness disputed that the temperature of the bottom die could be read from the main screen on the Multivac machine. This screen was not linked to the bottom die and always read 0°. He did recall anyone alerting him to defective seals on Wednesday 21st September.
He did not inform the claimant about the investigation.
The bottom die was modified in December. On the 19 September he was at the machine and he observed that the sealing temperature was 186. He could not comment other than the bottom heated die temperature was 65. He spoke to SF and accepted it was an error. This document was a record of what the end of the batch was. He verified that 186 was the temperature on the date. If the sealing temperature was 168 it would not be able to run. He spoke to SF on 28 September and the sheet was amended retrospectively. He may have put the correct figure on the original. He did not go to all the operators regarding the die being turned off the previous Saturday.
The same gaskets were used in the web trials. Replacing gaskets was standard practice and it used two types of gaskets.
In cases of a fire alarm, personnel were evacuated and he could not comment on whether the machines were turned off as he was not there on the Thursday evening. It was possible that someone else turned the bottom die off on Thursday evening. An extensive investigation was done that night and he had no involvement in that. When put to him that the alarm of the PMS was disabled he replied that the alarm of the bottom controller was switched off. The witness could not comment on the remedial action that he took. He needed to familiarise himself regarding what the problem was. He would have noted if the bottom die was off. When put to him that no one thought to check if the bottom die was on /off he replied he did not know the level of defective services it had that week.
In re-examination he stated that it was the technician’s responsibility to turn the die on and the claimant was there at the time. It takes about a minute to complete the values. He was not in work on Thursday and he assumed a power outage had occurred.
The quality engineer for the PosiFlushe line DOC gave evidence. He became aware of the situation on Friday morning, 23rd September. He instigated an investigation into the cause of the seal problems. He checked the process parameters as recorded on the forms. The bottom die was confirmed as being 65° Celsius. He asked the claimant where he checked the temperature from and he said from the screen. Operators from the weekend and week shifts confirmed that they had not switched the machine on. It was not their role to do so. The claimant confirmed that he took the reading from the machine.
The witness concluded that the machine had not been switched on and forwarded his investigation report to the personnel unit. He had no involvement in the disciplinary process. He did not provide a copy of his report to the claimant as this was not necessitated by the quality protocol.
During cross- examination the witness explained that the affected part of the batch was held in a warehouse while samples were sent to the US and Spain for testing. 600,000 units were found to be satisfactory and 36,000 units were scrapped. He spoke to the shift operators in the company of the shift supervisor. He did not take notes as it was not within his remit. He could not recall if the shift supervisor took notes. He did not tell the claimant that he was being questioned as part of a formal investigation. He said he was looking into the issue. He spoke to him close to the shift supervisor’s desk. He did not have any documentation of conversations with the claimant. He believed that he spoke to the claimant twice on the issue, but it was not clear in his report that he spoke to him twice. He also spoke to two technicians and two operators. He did not give the claimant an opportunity to forward an alternative explanation for what happened and that was not the witness’s role.
The HR manager told the Tribunal that he was responsible for the respondent’s two plants. His understanding of the investigation was the respondent had a problem with product that was imperfect and the investigation was conducted by the Quality Control employees. It was a quality and engineering failure and he had no involvement in the investigation in the incident. He was advised that the investigation took place and the claimant was interviewed by his operations supervisor. The claimant refused to attend a meeting on Monday 12 October 2011. The claimant was then suspended on the 12 October 2011 on full pay pending an investigation.
By letter dated 12 October 2011 the claimant was invited to a disciplinary hearing at 11.00am. on Monday 17 October 2011. He met the claimant in one of the conference rooms in the factory. In attendance were the witness, the claimant, FQ, TU TC and FP. He asked the claimant questions and one of the business unit managers took notes. The claimant told him that he looked at the screen, noted the value and recorded it on the documents as required. The claimant realised that all checks were important. He asked the claimant if he might have reconciled the value without checking the screen and he responded that he could not be sure where he got the value from.
He explained to the claimant that the switch was turned off at the weekend. The claimant told him that he may have recorded the value without checking the screen. The claimant could not be sure if he switched off the HMI screen. The claimant was definite at the start. The claimant conducted the checks that he was required to do at that point and other employees were questioned as to whether they played a role. Towards the end of the meeting the claimant accepted that he may not have looked at the screen and observed that the die was at 65 degrees C. The union representative said that the claimant made a mistake and admitted it and he was only one held to account
If the claimant had admitted his mistake it would have been an entirely different meeting. He advised the union that he would go over all the evidence that the claimant had given. The claimant was anxious that he would be given the decision promptly. He met the claimant and his union representatives on Wednesday 19 October 2011. He considered all he heard on the 17 October over two days. He had to consider if the respondent could continue to employ someone who lied about what he did and if it trust the claimant to continue to work. What the claimant did was a deliberate act of falsification which the respondent was not prepared to accept. It was his decision to dismiss the claimant. The claimant was accompanied by two union representatives. The meeting did not take very long. He gave his decision to the claimant and there was no further discussion.
The claimant then asked him if he could leave the meeting and come outside and talk to him. The witness was astonished that the claimant asked to talk to him one to one. The claimant told him that there was an easy way to deal with the issue and that he was in the early stages of macular degenerative disease. He asked that he be placed on the ICP plan and he would get paid for the rest of his days. He told the claimant that the decision had been made and he could appeal.
In cross examination he stated he adhered to normal Industrial Relations practice and he had forty years’ experience. He thought that the director of the respondent appointed the employees to undertake the investigation. He presented the information to the claimant verbally at a meeting and asked him questions. He did not present the claimant with the Investigative report and it was clear from the evidence that the claimant did not do what he was supposed to do and lied about it. He did not deal with the technicalities, he dealt with the Industrial Relations aspects of the case.
He put to the claimant what he was told and he gave him the opportunity to respond. In the course of the conversation with the claimant, the claimant came to a point of denial and then acceptance. The claimant told him that he reconciled the value.
When put to him that the claimant had been with the respondent for thirty one years and that he dismissed him he replied all documents that were available to him were put to the claimant. The point was that the die was not turned on and the claimant reconciled a value that was not there. Before he met with the claimant he spoke to the people who conducted the technical investigation and he asked them if they were clear in their minds of what occurred and he told him that they were very clear what happened and that the claimant did not turn on the machine as required. The claimant told him he did, maybe or he must have not done. The claimant did not initially admit to it. The claimant was given the opportunity to challenge any point he made to him.
There was no dispute with the union regarding the machine. The meeting took place on 17 October 2011 and the claimant was dismissed on the 19 October 2011, the claimant wanted the meeting to be quick. He did not take into account the claimant’s previous record/performance. He would have looked at the claimant’s record to establish if there was anything previously.
He could not say if the claimant was offered a performance improvement plan. He could not say how long the meeting with the claimant took. He did not remember saying about the balance of probabilities to the claimant. A suggestion was made that someone else may have turned off the switch. He did not put a limit on the meeting of the 17 October. The claimant could have gone on for a long as he liked. At the end of the meeting the trade union representative stated that the claimant had made a mistake, this was not a mistake it was a falsification.
In re-examination he stated that the claimant did not make an admission that he falsified documents.
In answer to questions from the Tribunal he stated if the claimant had put his hand up and admitted what he did it would have been the end of the matter. He did not take notes at the meeting on the 19 October 2011 and it was usually one of his colleagues took notes. When put to him that he stated that the onus was on the claimant to raise issues at the meeting he replied that he put the case directly to the claimant. It was a serious situation. The claimant had the opportunity to raise issues. He did not think that the investigative report was given to the claimant. At the meeting on the 17 October there was no evidence that the claimant was picked on. Other employees made mistakes and were not dismissed.
CR told the Tribunal he heard the claimant’s appeal on the 4 November 2011. The claimant was represented by three trade union representatives including two shop stewards TQ and FC. RN, HR was the note taker. The claimant appealed against the severity of the decision to dismiss him. The claimant had 31 years’ service. He considered the claimant’s service and his behaviour during the investigation. He upheld the decision of DM.
His understanding of the circumstances of the issues was that there was clearly a falsification of a reading of a device. The respondent has to rely on this for its customers. This was a sterile product for the operating theatre environment and if a product ended up being contaminated this has severe implications for the patient. The claimant accepted he did what he did and he asked for it to be the end of the matter and to reduce the severity of the decision, which was a falsification of a document.
At the appeal hearing he asked the claimant to give his version of what occurred. He asked the claimant to present new evidence that would help the decision. His decision as to uphold the dismissal and he communicated this to the claimant. When reaching his decision he excluded previous disciplinary issues which were raised in in the dismissal letter. In the last paragraph of the letter he outline to the claimant as follows
“Given the above investigation outcomes and no real mitigation in the representations made to me, your history in relation to poor performance, I do not have the trust necessary to continue you in our employment. The medical device business relies on detailed written records as evidence that we have produced product in the correct way and to the correct quality standard. To falsify these records is an act of gross misconduct
The respondent did not have the trust necessary in the claimant to retain him in employment. The device history record is available to Regulators. If records were falsified the FDA could put the respondent out of business. He had a duty of care in particular to all employees. He had no trust in the claimant and where a falsification of a document occurs it is considered gross misconduct.
In cross examination he stated that he had undertaken a number of appeal hearings and he was familiar with the Appeals process. The policy indicated that the employee being disciplined has seven days to appeal and any new evidence will be reviewed and a decision made. He was duty bound to review the Investigation and give the claimant and his trade union representatives the opportunity to bring forward new evidence. If it were a bad decision it could be overturned and he could reduce the level of sanction. At the outset the claimant denied what had occurred and he was not upfront. He disagreed that the claimant had no involvement in the investigation.
It was never brought to his attention that the claimant had not seen statements or the investigative report. He assumed the Investigation would have been presented to the claimant at the disciplinary and he was in no doubt that it was. He believed that the claimant had been given information on the disciplinary process and he would have been made aware of it. He established that the claimant had this information through his review of the disciplinary documentation. He was happy that the claimant was aware of the circumstances of what was happening and satisfied that the claimant understood the case that was put before him. The claimant put his hands up at the end of the meeting. He believed that the claimant had the relevant information and he admitted what happened and apologised.
Claimant’s Case
The claimant told the Tribunal that he commenced employment with the respondent on the 20 October 1980. He outlined to the Tribunal what occurred prior to his dismissal in October 2011. Operators could not take samples for testing on Multivac. The week-end before the incident occurred new web trials took place and this involved fitting a new gasket on a new web to establish how it would seal and how good it was for sterilisation. The idea of the trial was to assess the suitability for sterilisation. DC told him he was going to do a web trial sometime in the future. No prior notice was given and no one was informed that trials were taking place.
On the morning of the 19 September 2011 he checked the white board to establish if the Multivac was turned on and it was not completed. He went to the fuel room and checked the room every half hour. FP banged on the window, one of the operators telephoned him and informed him that he could not get the machine to run. There were several problems with the machine and this was very unusual. He was informed that the machine had to be put to manual. He asked the operators if there was a reason for this and if they had any idea who did it. SK told him that the Multivac had stopped. He completed a Multivac Daily Production Parameter Date Sheet which he dated the 19 August 2011 and if he realised his mistake he would have amended it. It made no difference where the reading was obtained.
On 12 October 2011 he met RM his team leader while he was going to the Diabetes Area. RM asked to meet him at 11a.m. in relation to an issue and that he might want to bring a representative. The claimant asked him if there was a reason for this and RM told him that it might be a disciplinary. The claimant asked him who he was alluding to and he replied that he (the claimant) was central to the process. He looked for a shop steward; he spoke to a union representative and asked him to inform RM, Team leader that he was not attending a meeting unless he had proper representation.
By letter dated 12 October 2011 he was advised that he was suspended on full pay for the duration of this shift rotation in order for the respondent to conduct an investigation into the aforementioned issue. He was told that he had to leave the premises. On the 12 October 2011 he thought that he would be able to give an opinion regarding what happened. Twenty different conditions could have caused a problem with the screen.
He was invited to a disciplinary at 11.00a.m. on Monday 17 October 2011 and he was informed that he could bring a representative. In attendance at the meeting on the 17 October 2011 were the claimant, his union representatives FQ and TC, DM HR manager, FP and NP. DM asked the claimant a series of questions over and over. Far more questions were asked than were documented on the transcribed notes of the meeting.
The claimant did not admit to an act of falsification. A discussion took place as to where he took the value from. Four shift operations were in place. He could have taken the reading from any screen. The claimant maintained that some of the questions and answers were selective. DM stated that he interviewed all team operators and engineers and he did not show him signed statements. DM asked him how long it took for the die to cool down. At the end of the meeting DM did not tell him that it could result in dismissal. He had to bring his son to Dublin for an operation and he told the claimant that they would meet again.
Another meeting was arranged for Wednesday 19 October 2011 at 9a.m. He thought that the meeting would be a continuation of the 17 October 2011 meeting.
He arrived at the meeting on the 19 October 2011 with two union representatives and the atmosphere was totally different than the 17 October 2011 meeting. DM outlined the findings of the meeting of the 17 October 2011 and told the claimant that he would be dismissed as the respondent could not trust him. The claimant undertook the same job for thirty one years and suddenly the respondent could not trust him. The claimant asked DM to meet him outside and he told him that he had no idea what happened. If the respondent had listened to him it would not have sustained a substantial loss on a product.
There were issues in relation to his work around 1984/1986 and they were dealt with. He was not aware of any other allegations. There could be any number of reasons why the seal failed.
The claimant was annoyed about the situation that he found himself him. He was being blamed for something he did not do and he was very upset on losing his job. He has sought alternative employment but to date has been unsuccessful.
In cross examination he stated that he did not check the isolator switch in September 2011 and he never checked the switch. The machine in question was never switched off. He did not recall being trained in on equipment on Bottom die but DC asked him to sign off on training documents. SK one of the most experienced operators on the Multivac refused to train one of the new temporary operators as the respondent would not pay him an allowance of €7 per day.
He received training on heated die validation twelve months after the work was carried out.
He agreed that many changes were made to the machine during trials. The switch was automated to manual and there may have been a gasket change. He telephoned DC and several other changes were made as well. He was not involved in the installation of die. He was reasonably sure that he took the temperature from the main screen.
Revision Level 6 was the form that he should have used. He believed that the HMI screen has been replaced since he left. He was informed that the fire brigade had attended the respondent premises on Friday. An operator had noted that the bottom die was turned off after the respondent building was evacuated. When put to him how he knew it was an operator that discovered it was off he replied who else would contact Ronan. MOC may not have known the difference between PMS and HMI unit. The PMS was a specific temperature. A sensor broken glass would have triggered the fire alarm. He was aware that the fire brigade was on the premises and they may have turned off all of the switches.
When he was asked why was the production week (in Flush) a write off he replied that it was documented in the minutes that it was due to the fact that he did not check the heated die. He did not fully accept that this was the answer he gave at the meeting as he was not offered a copy of the minutes and he did not see the minutes before the appeal hearing, FQ his union representative made a mistake and he was badly represented and was very disappointed by the level of representation.
His trade union representative attended on the 19 October 2011. He could not recall if he was dissatisfied with the meeting which occurred on the 17 October 2011.
Determination
The Tribunal in this matter heard evidence over 3 separate dates. The Claimant makes a claim under the Unfair Dismissals Act 1997 (as amended). By way of a T2 in the matter, the Respondent rejects the claim that there has been any unfair dismissal of the Claimant and further that the Claimant was dismissed following a full, fair and objective investigation into serious misconduct of the Claimant.
After hearing all the evidence and submissions made in the matter, the Tribunal concludes that the dismissal in this case was unfair and further, that there was a breach of procedural fairness in the decision to dismiss the Claimant. Constitutional and natural justice should be inherent within any decision made by an employer, and particularly in circumstances wherein the employee had been in the employment of the Respondent for upwards of 30 years. This did not happen in this case and the Tribunal notes inter alia that the claimant was not given statements or evidence being used against him at the time of the dismissal in order to be given an opportunity to assess such documentation and to question same.
In addressing the issue of redress under Section 7, the Tribunal considers that the appropriate redress having regard to all the circumstances, is that the Claimant be re-instated in his previous employment with the re-instatement from the date of dismissal.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)