ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000135

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 25/01/2016

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

During the Hearing the following submission and representations were by and on behalf of the Complainant:

Preliminary Point:

The Complainant's claim of Unfair Dismissal is based on the fact that he considers the decision to dismiss him to be disproportionate and that fair procedures were not followed.

In a document submitted at the conclusion of the hearing the Complainant made a preliminary point with regard to the Respondent's failure to comply with his request for information under Data Protection legislation. According to the Complainant the documents he requested was a copy of the investigation report that formed the basis of his dismissal. He claims the Respondent failed to provide this information.

On that basis, the Complainant stated that it would be unreasonable to proceed with the appeal without that information. He further suggests that this shows he was not afforded his constitutional right to fair procedures and that the decision to dismiss him was prejudged and unfair.

Substantive issues:

Evidence presented to the Hearing by the Complainant's legal representative requests that the reasonableness of the Respondent's conduct in relation to the dismissal should be taken into consideration. It was stated that Section 6 of the Unfair Dismissal Act (1997) sets out the onus of proof in that all dismissals are deemed "unfair" unless there are substantial grounds justifying the dismissal.

The Complainant also called into question whether or not a proper investigation and/or a product recall was undertaken in relation to the batch of harnesses which he was blamed for. In this regard, the Complainant suggests that he was dismissed before the investigation was carried out by management. He contends that this should have been completed in advance of any disciplinary meeting. Based on this, the Complainant contends that he was dismissed unfairly.

Submission on behalf of the Complainant stated that there is a duty on the employer to conduct an investigation in a fair and objective manner and that such an investigation will be crucial in determining whether the employer acted reasonably towards the employee in relation to the alleged incident.

The Complainant alleges that management did not follow fair procedure from the outset and that dismissal is obviously an excessively harsh punishment for something he hadn't done. The Complainant also made particular reference to the fact that, during the manufacturing process, the defective harnesses passed through quality checks at a number of stages and were not detected as they should have been. The Complainant further stated that if the quality processes had been functioning correctly then the defective goods would never have reached the customers.

The Complainant contends that he was singled out for special and unfavourable treatment after almost 10 years of faultless and dedicated service to the Respondent. In support of this the Complainant stated that in recognition of his skills and effectiveness he had been promoted from the position of general operative to an engineering position.

The Complainant further stated that, after 10 years of faultless service, he informed the General Manager, in October 2015, about his personal/health problems. The Complainant further alleged that rather than receiving support from his employer he was demoted from the engineering position back to a position of general operative.

Finally, with regard to training, the Complainant contends that the Respondent failed to provide him with training in relation to the work he was expected to perform following his demotion to the position of general operative. The Complainant also contends that he wasn't offered any support training to help him do the work despite the fact that he had requested it on several occasions. In this regard, the Complainant referred to ISO 9001 and highlighted a number of points with regard to competence, awareness and training, which, he contends, relates to his situation.

Conclusion:

In summary, the Complainant stated that the procedures adopted by the Respondent were defective and unfair and resulted in a deeply flawed process from the outset. As a result he contends that he was not afforded his constitutional right to fair procedure.

Respondent’s Submission and Presentation:

During the Hearing the Respondent made the following submission and representations.

Background:

The Respondent is a well-established assembler of cable and harness products, which are sold into the medical and electronics industries.

The Respondent stated in evidence that on 25 June 2015 they received a call from one of their biggest customers advising that one of their (the Respondent's) harasses had proved defective when being inserted into a product being assembled by the customer. The Respondent was informed by the customer that the quality of the product in question was not up to required standards.

By using a product code to identify the defective item, the Respondent discovered that it was one of a batch of twenty five (25) which had been produced specifically for one of their major customers. It was further discovered that of the twenty five (25), nine (9) had already been delivered to the customer. Of those nine (9), four (4) were found to be still in the customer’s plant, while the remaining five (5) had been built into other products which have been shipped to their customers in Scandinavia.

The Respondent stated in evidence that the provision of substandard product to one of their major customers, which had been subsequently built into their product for on sale, had serious consequences for the Respondent both in terms of industry reputation and potential future business.

On investigation, the Respondent found that the particular batch of harnesses had been worked on by the Complainant. The Respondent's investigation showed that the problems identified by the customer were repeated throughout the portion of the batch which they were in a position to inspect (i.e. the four (4) harnesses which were still on the customer's premises and the sixteen (16) which were still in the Respondent's warehouse awaiting dispatch to the customer).

The Respondent stated in evidence that the Complainant had not completed the "travel card" for the batch of harnesses in question as per documented company procedures. In addition, the Respondent claimed that the Complainant had failed to carry out two critical tests on the product which he was assembling. The tests involved were a "Pull Test" and a "Crimp Test" and, according to the Respondent, had those tests being conducted the defects in the products would have been detected.

Disciplinary Procedures:

According to the Respondent’s evidence, the incident in question was a clear breach of workmanship and quality standards as well as involving a breach of documented company procedures. The Respondent also stated that this particular incident was the seventh incident relating to the quality of the Complainant's work in a period of 10 months, all of which had been discussed with him as they occurred.

Based on the above, the Respondent decided to take the Complainant through a disciplinary process which included the following steps:

• Disciplinary Meeting held on 29 June 2015, which was conducted by two senior managers (Manager A and Manager B). At this meeting the Complainant was provided with details in relation to the faulty batch of product and his responses/comments were sought. The Complainant was advised in advance of his right to be accompanied in accordance with the Disciplinary Procedures and he availed of this opportunity.

• Second Disciplinary Meeting, held on 30 June 2015. This meeting was conducted by the two managers who had conducted the initial meeting. At this meeting the Respondent was advised of the decision to terminate his employment on the basis of:

• poor workmanship,
• failure to follow company procedures and
• failure to carry out a "Pull Test" or a "Crimp Height Measurement".

The Respondent was advised of this in writing by way of a letter dated 30 June 2015 and was also informed of his right to appeal the decision to the General Manager within five working days.

• Appeal Meeting with the Plant General Manager. This meeting took place on 22 July 2015 and was also attended by Manager A, who acted in the capacity of note taker. At this meeting the Complainant stated that he did not produce the batch that created the quality issue. He further stated that he had nothing to say other than that he was not involved in the production process of the batch. However, he did confirm that he was involved at the start of the batch.

By way of email dated 5 August 2015, the General Manager advised the Complainant that, having conducted a detailed review of the incident, he was satisfied that he (the Complainant) had produced the defective product in a manner which constituted a very significant breach of quality standards and had a damaging impact on the Respondent's reputation. The General Manager advised that based on the above he was upholding the decision to dismiss.

Summary:

In supporting their decision to dismiss the Complainant, the Respondent put heavy emphasis on the seriousness of the quality breach both in terms of reputational damage and future business relationship with the Customer involved. The Respondent also stated in evidence that they were satisfied that the Complainant was responsible for the breach that took place and, as a result, that dismissal was an appropriate sanction in the circumstances.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 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.

Issues for Decision:

The issue for decision is the Complainant’s contention that his dismissal from his employment was unfair.

Legislation involved and requirements of legislation:

This case is covered under the Unfair Dismissals Act (1977)

Decision:

The first aspect of this case to be considered centres on the preliminary point relating to the alleged failure of the Respondent to furnish the Complainant with a copy of the investigation report that formed the basis of the dismissal.

From the evidence that emerged during the Hearing it is clear that the information being referred to by the Complainant related primarily to the outcome of the interactions between the Respondent's customers and the company in Scandinavia to whom the five products containing defective harnesses were shipped. I do not believe that the outcome of these interactions needed to be known or made available to the Complainant prior to the Respondent's internal investigation and/or the disciplinary procedures which they invoked as a result.

From the evidence adduced at the Hearing, I am satisfied that the Respondent was alerted to the defective product by their customers and that, on inspection, all the four of their remaining harnesses which were held in the Respondent's customer's premises were confirmed as defective. I am satisfied, therefore, that the supply of defective product to the Respondent's customers had the potential to cause serious impact both from a reputational and future business perspective for the Respondent.

Clearly, while the situation was exacerbated by the fact that the Respondent's customers had to instigate a product recall from their overseas clients, the primary relationship, from the Respondent's perspective, existed with their direct customers. Therefore, it was both reasonable and appropriate that the supply of defective product to their customers was the main concern for the Respondent and that it became the primary focus of their investigation, which in turn led to the instigation of disciplinary process for the Complainant.

Having carefully considered all of the evidence presented during the Hearing, I am satisfied that the Respondent's investigation clearly established that the remaining product from the particular batch which was manufactured for this customer was found to be defective. I am also satisfied from the detail provided by the Respondent that they had clearly established that the batch of product in question had been crimped by the Complainant.

Consequently, based on all of the above, I find that the Respondent had established all of the relevant information, in relation to the identification of the defective batch of product and the Complainant's role in its production, prior to initiating the disciplinary process.

Therefore, I do not uphold the preliminary point made by and on behalf of the Complainant and will now proceed to consider the substantive element of the complaint, i.e. that the dismissal was unfair on the basis of unfair and flawed process/procedure and that the sanction imposed was disproportionately severe.

The first element of the substantive case to be considered was the allegation of unfair and flawed process/procedure.

As has already been set out above, I find that the Respondent had conducted sufficient investigation to establish that (a) the batch of product manufactured for the customer was defective and (b) that the defective product was crimped by the Complainant. Therefore, I am satisfied that the Respondent has reasonable cause to initiate disciplinary procedure in relation to the Complainant.

From the evidence adduced during the hearing it is clear that the Complainant was initially called to a disciplinary meeting at which the case against him was presented and he was given ample opportunity to provide a response and/or make a defence. The Complainant was advised in writing prior to the meeting and was afforded the opportunity of being accompanied at the meeting in accordance with the Respondent's Disciplinary Procedures. It is also noted that the Complainant was provided with documentary evidence supporting the position being articulated by the Respondent.

Following the initial disciplinary meeting, the two managers, who were conducting the process, took time to consider the evidence before them and the responses provided by the Respondent. The evidence adduced at the Haring clearly indicates that, having given the matter due consideration, the two managers called the Complainant to a second meeting, on the following day at which they informed him of their decision both verbally and in writing. The claimant was afforded the right to appeal, which he duly invoked.

The appeal of the decision to dismiss was heard by the Respondent's General Manager (GM). The GM was accompanied at the appeal hearing by Manager A, from the original team that conducted the initial stages of the disciplinary process. While it might be considered a weakness from a procedural perspective that this manager should be in attendance at the appeal hearing, I am satisfied from the evidence adduced that his role, on this occasion, was purely as a note taker and there was no evidence presented which would suggest that he had any other involvement or sought to interfere in or influence the outcome of the appeal hearing in any way.

Any procedural challenge that might be made with regard to Manager A's presence at the appeal hearing is further diluted by the fact that, subsequent to the meeting, the GM conducted his own detailed review of the matters pertaining to the Complainant's dismissal. The GM appears to have conducted his own detailed review of all the documentation involved in the manufacturing of the defective batch of harnesses. The evidence clearly shows that the GM took all the reasonable and objective steps that one would expect from a senior manager hearing an appeal in such circumstances.

Consequently, having carefully considered all the above evidence, I find that the Complainant was provided with a detailed, thorough and balanced process and I find no grounds to support the contention that it was flawed and/or denied him his right to fair procedure.

Having found that the process conducted by the Respondent was fair I then considered the second element of the Complainant's contention, i.e. that the sanction of dismissal was disproportionate in the circumstances.

It is clear from the evidence adduced that a defective batch of product was delivered to one of the Respondent's major customers and that this created a very serious situation with regard to reputational damage and potential impact on future business. As has already been stated, the potential impact was seriously exacerbated by the fact that five of the defective harnesses were built into product which the Respondent's customers then shipped to their clients overseas.

Having listened to the evidence presented by the Respondent it is clear that this incident created a very serious situation for them and I believe it would be unreasonable for anybody external to their organisation to gainsay their view in this regard. Against this background and in a context where the Respondent was fully satisfied that the Complainant was responsible for the crimping of the defective product, I find it is not unreasonable that the Respondent would take such a serious view of the incident.

During the course of the Hearing the Complainant stated that, while he had commenced the assembly process in relation to that particular batch of product, he had abandoned it midway when he experienced difficulties calibrating the necessary equipment. He told the Hearing that he put the product in a bin which he put to one side. He further stated that he informed a supervisor of the situation before finishing work that day and, when he resumed work the following morning, the bin and its contents were no longer there. Having carefully considered his contention in this regard and having taken on board the response from the Respondent, I find that the Complainant's position is somewhat lacking in credibility in this regard.

Similarly, having carefully considered the evidence presented in relation to the two disciplinary meetings, held on 29 and 30 June 2015, I find the Complainant's contribution to be somewhat lacking in credibility and displaying inconsistency when compared with subsequent contentions/positions. It appears from the evidence adduced that the Respondent also considered there to be inconsistency in the Complainant's evidence/responses and that this, not unreasonably, also influenced their decision in relation to the appropriate sanction in this case.

Finally, I gave detailed consideration to the fact that the Respondent's quality control systems failed to detect the defective product as it made its way through assembly. It is clear from the evidence adduced that this failure provided a serious concern for the Respondent and appropriate steps appear to have been taken to address/respond to that situation. However, the primary source of the problem with the product lies with the Complainant's failure to properly assemble and test the product. Where there are lapses and/or errors there must be accountability. Consequently, I do not believe it was unreasonable for the Respondent to consider the Complainant's actions separately from any other factors.

Having carefully considered the detailed presentations made at the hearing by both sides, I am satisfied that there were sufficient grounds for the Respondent to consider dismissal as an appropriate sanction and, furthermore, that the Complainant was afforded a fair and balanced procedure in this regard.

Consequently, I find the Respondent's decision to dismiss the Complainant to be fair.

Dated:   25^th April 2016