EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
James Howell UD1660/2012
against the recommendation of the Rights Commissioner in the case of:
James Howell
and
Forest Laboratories Ireland Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes B.L.
Members: Mr T. O'Grady
Mr S. Mackell
heard this appeal at Dublin on 16th January 2014 and 16th July 2015
Representation:
Appellant: Mr Andrew Turner, Solicitor, Hamilton Turner, Solicitors,
66 Dame Street, Dublin 2
Respondent: Mr Tim O’Connell IBEC Ltd., 84/86 Lr. Baggott Street, Dublin 2
The determination of the Tribunal was as follows:
This case came before the Employment Appeals Tribunal by way of an employee appealing against the decision of the Rights Commissioner reference r-114402-ud-11/JT dated 10th October 2012.
Respondent’s Case
JW told the Tribunal that he is the manufacturing production supervisor and has responsibility for the safety of employees. He has to ensure that product is manufactured within the guidelines. On the 10th March 2011 he was in Room PR25 and he observed the appellant asleep in the ante room of PR24. Employees have to gown up and put on masks in the anteroom. He knocked on the door to get the appellants attention. The operator BH who was in the PR room came to the ante room. The appellant awoke and he spoke to the appellant through the door. BH was loading a blender at this time and this is a two man operation. The material is added to the blender in sequence and it is the practice that two employees do the physical work to ensure that the correct sequence is completed. He spoke to the appellant and reprimanded him. The appellant gowned up and the supervisor was not on the site. He documented the details in an email to his manager GMc on the 10th March 2011.
He met with the appellant, PMcG the appellant’s representative and GMc. GMc went through the sequence of events. The appellant admitted sleeping on the job and that it was not his first time to fall asleep on duty. GMc told the appellant that this was a very serious matter. The appellant and BH were both responsible at this time. The fact that the appellant was asleep could have resulted in the quality of the batch being called into question. The appellant did not approach him to tell him that he was tired or fatigued. If the appellant had not woken up it could have been a problem for the respondent.
In cross-examination he stated that Room PR 25 is a separate room from 24. They are sealed and separate apart from a window. The witness was doing a clearance at this time and MR was in the room. He could not recall two other people being in the room. He did not feel it was necessary to interview the three people in the room. He interviewed BH but he did not have it documented. The appellant commenced work at 6.30a.m. The product was checked at 7.30a.m. The QA checked the standard of the material and he did not ask the QA staff if the appellant was asleep. A check is undertaken prior to the product being signed out.
The witness commenced work at 6.30am on the 10th March 2011. He entered PR25 between 7.40-7.45am. He went to PR 25 and checked raw materials. After he checked the material he observed the appellant sitting in a chair and he banged on the window vigorously.
BH told him he did not know what the situation with the appellant was. It was an awkward situation for BH who knew that the appellant was asleep. BH entered PR 24 and the appellant stood up. He was aware that the appellant’s wife just had a baby. The appellant did not mention any difficulties in this regard. GMc was responsible for the investigation, the witness was party to the investigation and he had no input after that. BH was interviewed before the appellant was suspended. He attended the disciplinary meeting and he met with FH (the head of manufacturing) and GMc before the disciplinary meeting. The decision to dismiss the appellant was made by GMC and FH. The witness was not asked for his view of the dismissal. He did not offer anything at the meeting regarding the decision to dismiss the appellant.
In re-examination he stated that the appellant did not deny that he was asleep. The appellant told him the reason for his tiredness was that his wife had a baby and he did not get much sleep.
The meetings were held within twenty minutes of each other on the 10th March 2011. The appellant was suspended after the two meetings. He could not remember if he spoke to the appellant and then to BH. The appellant was suspended before he spoke to BH.
The second witness for the respondent JF, the manufacturing manager, told the Tribunal that at the time of the incident he was manufacturing co-ordinator. He reported to the manager in the respondent and he has been employed with the respondent since May 1998.
When new employees took up employment he undertook induction with them. It was very clear that GMP (General Medical Production) needed checks and balances. Clearance could be done the previous evening and everything could be ready at 7.30am. On the day of the incident he was off site and JW explained the situation to him. The appellant said that his wife was expecting a baby. He did not attend the meeting with the appellant and he did not meet SH.
The head of external manufacturing FH told the Tribunal at the time the incident occurred he was head of manufacturing . The respondent employs 250 to 300. He joined the respondent in early 1990s. He met the appellant at a meeting on the 25th March 2011 along with GMc and JW. He asked the appellant if he was asleep on the 10 March and he replied that he was. He explained that prior to the meeting he met JW and GMc. He asked the appellant to tell him about the incidents. He had no alternative but to dismiss the appellant. He had fallen asleep on a previous occasion. At the time the employee handbook did not refer to sleeping as a serious offence that would require disciplinary action. The handbook has been updated to include a provision that sleeping on duty is gross misconduct. Based on the need to ensure safety of procedures the respondent had no option but to dismiss the appellant. He was very disappointed that it came to this. He had gone through all the evidence with GMc and the meeting on 25th March 2011 was to clarify that all the evidence was correct and he had no option but to proceed with dismissal.
In cross-examination he stated that he did not know exactly how he was notified on the 10th March 2011. He would have been told that the appellant was suspended and would have agreed with it. The appellant agreed that he was asleep on the 10th March 2011. When put to the witness that the words that he was asleep were not used by the appellant he replied the appellant said he was asleep while he was on duty. No additional evidence was furnished to him on 25th March 2011. He believed that the appellant positioned himself in the ante room so he could not be visible from the corridor. He believed that the appellant had deliberately fallen asleep.
Prior to 23rd March 2011 he spoke to GMc and JW about the pertinent facts and he did not have statements form other witnesses. He was not aware that there were three people in the room with JW. It appeared that the letter of 10th March 2011 addressed to the appellant regarding a formal disciplinary investigation on the 22nd March at noon was sent to an incorrect address. GMc would have been notified that the appellant had not received this notice. The 10th March 2011 was the first reference to a meeting on the 22nd March 2011. It was clear the appellant could have someone with him and he had no representative at the meeting on 25th March 2011. He could not recall when the new handbook had been issued and was unable to say whether the appellant had received a copy of the updated handbook. He did not produce a copy of the respondent’s handbook at the meeting. Sleeping on duty is a very serious offence. The appellant was given a verbal warning for a similar offence eight years ago. An investigation took place at the time and he did not have a copy of this. He felt that it was important that JW was at the meeting so he could contribute. He would have taken GMc’s opinion into account and he had nothing further to say.
DB, the chief financial officer who was also a board member, heard the dismissal appeal that took place on 21st April 2011. DB issued his findings to the appellant in a letter dated 5th May 2011. In concluding that the appellant’s behaviour amounted to gross misconduct and since gross misconduct always resulted in dismissal then it followed that he uphold the sanction imposed on the appellant. This board member told the Tribunal that his reasoning for upholding the original decision was also based on the fact that the appellant had not produced new evidence or fresh arguments in support of his case. However, this officer accepted the appeal points presented earlier by the dismissed employee.
In acknowledging that there was no loss to the respondent in this case this case added that there was the potential for such loss and in that context dismissal was an appropriate response.
Appellant’s Case
The appellant commenced employment with respondent in March 2002. He described himself as a process operator who was involved in each aspect of manufacturing. He was trained and experienced on work practices and was aware that falling asleep on the job was unacceptable. Apart from one incident in 2003 the appellant had a clean work record and had not been subjected to any disciplinary process up to March 2011. While he was subject to the disciplinary process in 2003, there had been no disciplinary sanction as a result.
On 10 March 2011 the appellant reported for duty at 6.30am. His task that morning was the mixing and labelling of ingredients in the manufacture of medical products. While located in an ante room performing the labelling role and waiting for the ingredients to properly mix he inadvertently lost wakefulness for a very short period. While in that state the appellant was observed by a supervisor who in turned reported his observations to the operations’ manager. Following a meeting with that supervisor and manager later that morning the appellant was placed under suspension pending an investigation and possible disciplinary process.
The appellant told the Tribunal that he had had little sleep prior to coming to work that morning due to domestic circumstances. This scenario led to him “resting his eyes” while engaged in his work. He explained that domestic situation to his supervisor, the operations’ manager and other senior managers during the investigation and disciplinary process and apologised for that lapse in concentration.
Prior to a disciplinary hearing the operations’ officer commented to the appellant that he was to expect the worst and that this issue had gone “up the ladder”. The “worst” materialised when following a disciplinary hearing attended by the operations’ manager, his supervisor, and the European operations’ manager he was presented with a letter in the name of the operations’ manager dated 31st March 2011 informing him of his immediate dismissal. The second paragraph read as follows:
“On the date in question, we believe that you knowingly and deliberately abandoned your duties and found an area close by where you could sleep. You duly fell asleep at a time when you were on duty and directly involved in a batch process. You were discovered to be asleep, as described by your supervisor who has confirmed these facts to me. These above facts have been accepted by you.”
In appealing the decision the appellant wrote to the chief financial officer stating inter alia that he did not accept the above and would like the opportunity to correct it. He exercised his right to do so at that appeal hearing.
It was the appellant’s contention that the work practices as experienced by him with the respondent were not as rigid as described by the company. The attitude of some supervisors was to get on with the job and not to bother with possible contributing factors relating to the work. Breaks and process could be informal at times. Such informality included tolerating staff to literally take a nap while officially on duty.
Determination
The respondent engages in the manufacture of pharmaceuticals and the Tribunal accepts that great care must be taken in their production. It is clear that the actions of the appellant in this case did not compromise any of the respondent’s product. However, we are satisfied that the respondent is entitled to guard not just against the compromise of their product but also against a risk of compromise. The Tribunal is satisfied that the appellant was asleep for at least a short time when on duty. That is certainly a matter which the respondent was entitled to view as misconduct.
Even where there is a clear case of misconduct, the employer must nonetheless approach the disciplinary process and the dismissal in a fair manner. Fair procedures must be afforded to an employee. Misconduct of itself does not require dismissal. The Tribunal is satisfied in this case that, given the misconduct, dismissal was a sanction open to a reasonable employer to take. The role of the Tribunal in unfair dismissals cases is not to substitute its own view as to sanction in circumstances where dismissal is a decision that a reasonable employer could have made. It is, on the other hand, the role of the Tribunal to ensure that, even where dismissal is a reasonable option, the process that leads to dismissal is fair.
It was the evidence on behalf of the respondent that its handbook had been updated to express that being asleep on duty was to be now viewed as gross misconduct. It was unclear from the evidence when that update had taken place, whether it was before or after the appellant’s misconduct and whether the change had been brought to his attention. If the severity with which misconduct will be viewed is increased, that must be brought to the attention of employees. The Tribunal is not satisfied that this was done.
The misconduct for which the appellant was dismissed was that he deliberately and consciously abandoned his duties and found a discreet area in which to fall asleep and that he did so when a batch was being prepared and his presence was required. The Tribunal is satisfied that he was never informed of the nature of the charge being made against him. It is important that an employee is made aware of the misconduct alleged against him so that he has a fair opportunity to defend himself against it. There is a qualitative difference between momentarily nodding off due to a lack of sleep and deciding to find a quiet spot where you can go off for a snooze. The latter connotes a level of deliberation and subterfuge. The Tribunal is not satisfied that the available evidence justified a finding of deliberately abandoning his duties.
It is clear that a previous incident in 2003 was taken into account in the decision to dismiss the appellant. That was a significant period of time before the misconduct for which he was being disciplined. It is highly unusual to say the least to take matters of such antiquity into account. Further, it is by no means clear that the appellant was actually disciplined arising out of that incident. The respondent’s evidence is that he was. His evidence is that he was not. No proof of an earlier sanction, such as a copy of a record on his personnel file, was furnished to the Tribunal. The Tribunal is not satisfied that he was previously disciplined. That this incident was taken into account in these circumstances was an unfairness.
The author of the dismissal letter did not give evidence and the Tribunal was left with no explanation for the contents of that letter.
The question of whether the appellant had deliberately fallen asleep or not was addressed at the appeal hearing but does not appear to have been adequately considered. The appeal appears to have simply been dismissed because no new evidence had been adduced or arguments advanced. There does not appear to have been a consideration of the adequacy of the available evidence to ground the finding that was made.
The Tribunal is satisfied that the appellant was unfairly dismissed by reason of procedural infirmity within the meaning of the Unfair Dismissals Acts, 1977 to 2007. The procedural infirmity was not of minor or insignificant nature. Accordingly his appeal is allowed. The Tribunal is satisfied that compensation is the appropriate remedy. The appellant’s significant contribution to his dismissal must be taken into account. The appellant is awarded compensation, pursuant to the provisions of the Unfair Dismissals Acts, 1977 to 2007, in the amount of €5,000 as being just and equitable in all the circumstances.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)