Complainant

Respondent

Anonymised Parties

A General Operative

A Medical Device Company

Representatives

Daniel Snihur, Union Official    , Independent Workers    Union

Barry   Walsh , Solicitor,Mc Dowell Purcell Solicitors .

Act

Complaint Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00006960-001

13/09/2016

This is claim for Unfair Dismissal disputed by the   Respondent .

The Respondent operates a medical devices company and is   subject to the “strictest regulatory standards” at Ireland and US level.   Permission to engage in continued manufacturing is dependent on continuous compliance   with rigorous standards .The devices are classified by the FDA (Food and Drug   Administration) as high risk classification. The complainant commenced work   on 12 March, 2007.

All employees are trained in compliance requirements   before commencing work on the manufacturing process The Respondent submitted   an extensive description of the compliance process .All processes are   governed by a Standard Operating Procedure. The Respondent outlined extracts   of the Complainants training records and the Disciplinary procedures which   may evolve in the event of a failure to follow the various procedures in manufacturing.

The Respondent outlined the facts surrounding both   disciplinary procedures.

On February 1,   2016,The Complainant was assigned to work on a curing oven, governed by a   particular protocol ,which sets out that it is essential that lot numbers are   recorded on the back of the oven chart . During the night shift, lot numbers   were found not to have been recorded on the back of the curing oven chart and   the lot was put on hold by the Night Shift Team Leader. The Respondent   demonstrated this process by exhibiting a red tag which signalled the “ on   hold process “ necessary for   investigation of non-conformance .When the Day Shift Team Leader went to   retrieve the chart the next morning ,the Complainant approached him with a   backdated completed chart .The Complainant confirmed that he had backdated   the chart .

A Disciplinary Process followed regarding a quality non   conformance on February 2, 2017 .This resulted in

1.One Week paid Suspension

2 A 12 month Final Written Warning to April 15, 2017.

The Complainant was   offered a week in which to appeal this decision, but did not avail of the appeal.

The Complainant was offered advice, support and direction   by the Respondent .He was also   reassigned Data Integrity Foundation Training on his return to work   .The Respondent contended that the delay in issuing the outcome of this   process did not prejudice the complainant .

On June 7, 2016, the complainant was engaged in a casting operation.   A component of the Product History Record was not completed .This was picked   up on by a colleague who brought it to the attention of the Shift leader .The   “On hold “procedure was initiated by way of application of the red tag .On June 8, the Team Leader   discovered that the lot of devices had been removed from the “on hold “shelf   and had been moved through the manufacturing process .An investigation followed.

The Complainant was suspended from duty on 15 June, 2016   and the Complainant participated in meetings held under the disciplinary procedure.

The Respondent made the following findings :

1 The Complainant had not adhered to a specific Standard   operating procedure on Process and Quality Product hold.

2. When the complainant discovered that that the lot was on hold, he took the tag from the history record and put it in the bin.

3 The Complainant had not complied with the Good   Documentation Practice.

4 The complainant backed dated a particular percentage   recording relevant to the 7 June on the 8 June in breach of protocol .

5 The percentage figure recorded was entered without verification.

The Respondent submitted that these were serious breaches   of the manufacturing process. As the complainant was already on a final   written warning the Respondent made the decision to dismiss the complainant. This   was appealed at the Appeals Meeting on August 4, 2016.The complainant   requested that an Interpreter accompany him to the Appeal meeting and it was not indicated by the   Complainant that his companion was in fact a Trade Union Official.

Following careful consideration of the appeal, the   respondent rejected the appeal and upheld the finding of dismissal .The   Respondent drew the attention of the hearing to the undisputed fact that the complainant had expressed an awareness   of both breaches of procedure, and that a sanction was indeed warranted. The   dispute between the parties arose in relation to the proportion of the sanction,   where he Respondent asserted that it had applied the appropriate sanction,   given the seriousness of the breaches   of procedure. The Respondent submitted that it had lost complete trust in the   complainant in the aftermath of the second incident.

The Respondent introduced Ms Q, who worked as Senior   Manager in Quality Product Control. Ms Q made a detailed presentation on the   system of device production and stressed the strong regulatory presence in   quality control of the devices.

The Production Supervisor (Mr PS 1) gave evidence that the   complainant had backdated a chart from February 2^nd to February 1   when the product was on hold. This was a falsification of records. He stated   that the Red labels signifying the “on hold” procedure existed in all departments.   During cross examination, he confirmed that a colleague of the complainants   who also engaged in the practice was also disciplined.

Another Production Supervisor, Mr PS2 gave evidence on the   management of the second disciplinary process in June 2016. He had worked at   Supervisor level for 7 years in the area .He recalled the incident of June 7   and confirmed that the Team Leader is the appointed and approved person to   make the decision to remove the “red on hold tag” if it placed on a batch of   product .He recalled that there was no dispute in the facts as they were   reported by the complainant, but the outcome was a defined breach of the   company procedures. The complainant submitted that he remembered the   percentage figure of measurement as it had been the day before and inserted it.   Mr PS 2 contended that it was imperative that real time recording took place   to preserve the integrity of the product and the resultant validation process.

He described the incidence of “lifting the red tag “by an   associate and not a Team Leader as completely in breach of procedure and   something that never happens .He stated that “nobody would entertain that “It   was not permitted to backdate data and this was addressed in the complainants   training .He found the complainant lacked insight and minimalised the breach,   believing it to be a minor issue .He stated that trust was a significant issue   for production and this had been eroded. He believed that there was no   alternative to dismissal given what had happened before.

During cross examination ,Mr PS 2 confirmed that the   casting process was slightly complex ,and formed a component of product traceability   .He confirmed that only the Team Leader /Supervisor had the authority to   remove the red “ on hold “ tag and an employee was not permitted to correct   mistakes alone once that process had commenced .

Mr PS confirmed that he had considered the effect that a   decision taken to dismiss would have on the complainant and he considered :

The Gravity of the Incident

That it was a repeat offence

That the complainant had moved the tag himself.

He answered that it was very important that the integrity   of the product was preserved and that data was correct .This require a   reliance on trust. He agreed that the   company was not at a loss or damage through the incidents as outlined .He   denied that he held any malicious intentions towards the complainant .

Mr B, Head of Manaufacturing gave evidence of undertaking the appeal process .He met with the   complainant and his chosen support for   a 20 minute period where the complainant was given every opportunity to add   to what was already submitted in the letter of appeal .The meeting was held   at a neutral venue and was scheduled for 1.5 hrs .

There was no dispute on the facts, on the reported   backdating of data .Mr B submitted that the non attendance of the   complainant at the propose meeting of July 20 was not part of the process. Mr   B submitted that the complainant had nothing new to add and he believed that   the disciplinary process had been thorough, the decision to dismiss was   correct and the sanction in light of the pre existent final written warning was   appropriate.

During cross examination, he confirmed that he had been   three years with the company as a Senior Manager and he had not overturned a   decision taken to dismiss in the past.

The Respondent made legal submissions in concluding arguments.   He relied on the EAT case of O   Halloran V Guidant, Luxembourg SARL UD 708/2006, where the EAT found   against the complainant, a then employee of a medical devices company, found   to have deviated from company protocols which resulted in her dismissal.

The Respondent drew the attention of the hearing to the central aspect of the case   involving a highly regulated manufacturing process .The company adopted a   reasonable response to the first error in February 2016 , when the   complainant was given a lesser sanction and an opportunity to improve   .Specific training followed and a second incident followed 7 weeks post   application of the first sanction, due   to expire in April 2017 .The complainant was given a second chance which was   accompanied by a message of support by the Production Supervisor who told him   that “ We are here for you “.The Respondent concluded that the sanction of   dismissal was one within the range of reasonable sanctions the employer was entitled to   impose, given the severity of he mistakes . The Respondent submitted that the   dismissal was fair in all the circumstances.

The Complainant had worked as a General Operative since March   12, 2007.He had been recognised as an employee of good standing, where his   appraisals reflected a constant progress in the company. During 2015,he   sought to switch from evening shifts in the” Finishing” Dept. to another   Department to facilitate his home life .Initially , this was refused and in October , 2015, he commenced working   in the “ Moulding “ area .He received a partial training in December, 2015   which omitted training in a process called “ casting “.

The Complainant had an incident free work record until he   made a mistake on, Monday, February 1, 2016.The Complainants Representative   submitted that the complainant started work that day at 7 am and the   complainant began to unload previously loaded ovens from the Friday Night shift.   This was only his third time working with the ovens. On the following day ,   he was alerted to a mistake he had made .His batch had been placed” on hold”   .He noted that he had forgotten to fill out a log chart and proceeded to fill   it in then .He realised his error and reported it . A Disciplinary process ensued which resulted   in a Final Written warning for the complainant.

The Complainants representative took issue with a 2.5   month waiting period before this outcome was shared with him, during which time,   he found himself under severe pressure and stress as he worried about his   future with the company. He did not appeal the sanction.

On 7 June, 2016, the complainant was working with the   ovens when he noticed that a marking on the exact time of unloading was   missing a percentage value and he inserted a value he remembered from the   previous day. The complainant’s representative submitted that the complainant   undertook this action as he understood that he was allowed to correct small   mistakes of lots that were placed on hold.

A period of suspension and further Disciplinary process   followed where he was dismissed .He appealed the dismissal, but his   representative was not allowed to speak during the meeting and the dismissal   was upheld.

The Complainant   submitted that the complainant had completed 9 years of unblemished service   prior to the incidents in 2016.The complainant ought to have started his training   for the new posting in “ curing “ and the incidents as recorded were in “ the   heat of the moment”. The Complainants representative submitted that the   complainant could have been spared the sanction of dismissal if disciplinary   sanctions had been proportionate.

The complainant submitted that the severity of the   sanction was too severe and sought redress in the form of compensation and a   recommendation for his re-instatement or re-engagement .He submitted that the   company had not sustained a loss and the mistakes on both occasions were   immediately corrected. The Respondent had given insufficient regard to the   complainants long service and that he had not had a lot of experience in this   new area of work for him .He had developed a working knowledge of most of his   new area of work but his training in “curing “was insufficient .He believed   that he should have been reprimanded, short of dismissal .He viewed his   dismissal as disproportionate and unfair.

The Complainant submitted that he had been on illness   benefit, citing depression. He undertook training in October 2016 and submitted   some evidence regarding mitigation and his 35 week loss period to day of hearing.  

I have carefully considered all the evidence and   submissions received in this case. From the outset, it was clear that the   complainants case centred on the proportionality of the sanction received .He   did not dispute the facts or take issue with the procedural framework   adopted.

The Respondent was clear that the decision to dismiss was   not taken lightly and was within the range of reasonable responses open to   them as an employer confronted by the events as described.

I have taken account of the extensive presentation made by   the respondent on the manufacturing   process within a highly regulated environment .I was struck by the clear imperative of   this presentation that the Product Integrity , governed by protocol was central to the success and clinical   acceptability of the product in the market place .

I have also taken account of the complainant’s   presentation that he genuinely believed that he was insufficiently trained in   the processes and this should have permitted more understanding from the respondent.   I am also conscious that the complainant submitted that he became depressed   during the latter months of his employment; no medical evidence was tendered   on this point.

The Unfair Dismissals Act 1977 – provides

Section 6(1) Subject to the provisions of this section,   the dismissal of an employee shall be deemed for the purposes of this Act ,   to be an unfair dismissal , unless having regard for all the circumstances,   there were substantial grounds justifying dismissal .

Section 6(4) provides that :

Without prejudice to the generality of subsection(1) ,the   dismissal of an employee shall be deemed , for the purposes of this Act not   to be an Unfair Dismissal , if it results wholly or mainly from one of the   following

(b) Conduct

…….

The burden of proof to demonstrate that the dismissal   resulted wholly or mainly from one or more of the matters specified in S.6 (4)   or that there were other substantial grounds justifying the dismissal rests   with the respondent .

As an Adjudicator, I am permitted to consider the   reasonableness of the employers conduct in relation to the dismissal in   accordance with S.6 (7) of the Act.

I have considered the statement of Lord Denning , Master   of the Rolls in British Leyland Uk   ltdV Swift [1981]IRLR 91 referenced   in this jurisdiction in Allied   Irish Bank V Purcell [2012] 23 ELR 189.

“The correct test is, was it reasonable for the employers   to dismiss him? If no reasonable employer would have dismissed him ,then the   dismissal was unfair .But if a reasonable employer might reasonably have   dismissed him, then the dismissal was fair .It must be remembered that in all   cases there is a band of reasonableness   ,which one employer might reasonably take one view ,another quite reasonably   take a different view “

For the purposes of this case, It is not my role to decide   whether I would dismiss the complainant in the circumstances presented,   instead, I must inquire whether it was reasonably open to the respondent to   have made the decision to dismiss the complainant.

I found the Respondents presentation through use of “production   props” to be useful to help me understand the operational climate of the   company and it was clear that the complainant was happy and successful at the   company prior to his chosen relocation to the new Department in October 2015. I have noted that the   complainant had relocated three months prior to the first incident in   February 2016 and seems to have worked at the ovens on a short number of occasions.

I have considered the outcome of the first Disciplinary   process on April 15,2016,I am satisfied that a two part sanction of   suspension and final written warning was applied and not appealed , yet the   complainant submitted that a final written warning ensued without reference to the period of suspension .I am satisfied that a   specific warning was issued and accompanied by a clear statement of a   reasonable opportunity to make improvements with support ,where implications   of non compliance with improvements sought would result in an intensification   of the Disciplinary process .

This was not appealed and while the complainant raised the   protracted process governing the duration of this deliberative process ,I   found the delay to be regrettable but not injurious .I was however , slightly   surprised that the complainant elected to present alone at both this   Disciplinary process and the   Disciplinary process which led to   dismissal on July 25, 2016. I am satisfied that he was invited to bring   representation and I find that given the stark circumstances where the   complainants job was clearly under threat from April 15 onwards, that he   sought to navigate alone .I must respect his decision in that regard, but   given the principles incorporated in the Respondent Disciplinary procedure on   the right to defend yourself, it struck me that representation at the early   stages of this process may have been beneficial to both parties.

I found it unusual that the complainants chosen   representative at the appeal hearing presented as an interpreter and that his   true function of Representative was not made known to the respondent.

I do not accept that he was prevented from speaking at the appeal . This was   clearly a missed opportunity in terms of seeking to influence the outcome of the   hearing .

The Appeal outcome does not reference any attendee outside   the complainant. The question of depression had arisen for the complainant at   this time, yet it was neither flagged by him nor probed by the Respondent   during the dismissal or appeal process. The sole record seems to be a medical   cert presented by the complainant consistent with his return from Poland .

I have considered the undisputed statement that the   Respondent business was not damaged either financially or by reputation by   the sequence of the incidents at the heart of the Disciplinary processes in   February and June 2016 .However, I was struck by the respondent presentation   on the loss of trust in the complainant which placed the integrity of the   production under threat for the   company perspective .In particular , I   was struck by the evidence of Mr PS 2 , who made the decision to dismiss the   complainant .His stated incredulity at the sequence of events in June coming   so soon after the February event goes to the root of this case for me .

I have found that the decision to dismiss was not based on   a single isolated incident and that the complainant was on a Final Written   Warning a time of the second incident in June, 2016 .I accept that the   respondent was disappointed by the earlier incident in February 2016 but   constructed a corrective action plan, incorporating training which placed a   clear opportunity for improvement before the complainant, whilst spelling out   the implication for non compliance. I found this to be a reasonable approach   and consistent with the stated objective of the high level of trust underpinning   the manufacturing process .I interpreted the intervening period from April to   June 2016 as a mutual trust building opportunity.

The Respondent did not draw my attention to a zero   tolerance policy for breaches of core protocols. In Bank Of Ireland V Reilly [2014] IEHC 241, Noonan J pointed to   this omission in terms of an email policy which arguably was peripheral to   core work. I found that the Respondent in this case understood and accepted   that mistakes happened in production and they sought a “hands up “approach to   facilitate improvements.

I did not establish any procedural aspects which would   render this dismissal unfair. I found it unusual that the complainant chose not to attend the   meeting where his dismissal was confirmed.   I believe this demonstrated a lack of judgement .I noted that he was in   Poland during his period of suspension and submitted that he missed the   letter of invitation until he himself was in the process of submitting a sick cert to cover the period to September, 2016.

I move now to considering the submissions made by the   parties on proportionality .The Respondent submitted that the complainant‘s   transgressions amounted to egregious behaviour, the nett effect of which was   a sundering in the trust and confidence necessary to maintain a viable   employment relationship. They accepted that the complainant had a positive   history of work performance and contended that he was given every opportunity   to improve following the February incident.

The Complainant contended that insufficient weighting was   placed on the complainant’s admission of the wrongdoing, his insufficient training,   his unblemished work performance and his mental health condition. He sought   an opportunity to have a second chance and challenged the proportionality of   the decision.

In Parelli V Irish   Distillers [2004]15 ELR 25 , The EAT pointed to the parameters of   misconduct in the serious domain and   state that “It is the nature and quality of the conduct and not its   consequences which renders the conduct either serious or trifling “

I have considered this case and the case law of the   analogous case submitted by the Respondent. I have also considered   the EAT determination in

Bigaignon V Power   Team Electrical Services ltd UD939/2010,[2012]23 ELR 195,where an employee, engaged in overhead maintenance   of lines for electrical supply ,tested positive for cannabis and was   unsuccessful in a claim taken for Unfair Dismissal .In that case , the   complainant had signed a document where he understood that zero tolerance of   drug use was set out .

The case deferred to the precise terms of the test to be   applied as to whether the sanction of dismissal was reasonable in Noritake (Ireland) ltd V Kenna,   Employment Appeals Tribunal UD 88/1983.

And I have applied this test to this case

1 Did the Company believe the employee misconducted   himself as alleged? I have found that the respondent held an honest belief   that the complainant had engaged in both incidents at the heart of the case   .The complainant confirmed that he was involved as described.

2 Did the Company have reasonable grounds to sustain that   belief? I have found that there was no dispute between the parties on the   nature of the incidents and the manner in which they were investigated and   processed through the Disciplinary procedure .While I noted the complainant   was not compelled to follow a zero tolerance policy .I have found that both   incidents centred on a repeated breach   of the same protocols and this was submitted as a bridge to far in the respondents evidence.

3 Was the penalty of dismissal proportionate to the   alleged misconduct? I have reflected on the circumstances which caused the   complainant to come and work in this area of manufacturing after a period of   9 years. I appreciate that he wished to work the day shift. He entered a   highly regulated production area with intense protocol and tracking measures.   This carried a high level of responsibility and it was clear that the   complainant struggled with this requirement .However, I am satisfied that he   was provided with a genuine opportunity to reach the standard required   through a measured management process and training. Regretfully, he was unsuccessful   as evidenced by the events of June 2016.

The Respondent cited the reason for dismissal as   unacceptable conduct and a breach of trust and confidence .I have considered   the proportionality of the sanction and the effect of the dismissal on the complainant.

The hallmarks of trust and confidence are in my opinion the   foundation and the core of a viable employment relationship .The Respondent   submitted that the complainant minimised the effect of backdating records   pertinent to product integrity .The evidence submitted pointed to a   company highly troubled by his lack of insight .I   have to consider the role of product integrity played for the respondent and   that the acknowledged departure from protocol by the complainant presented a uniquely significant dilemma going forward   for the company. Extensive documentation was presented on training records   undertaken by the complainant .

While it is regrettable, that both parties did not engage   in an earlier assessment of the complainants performance in the early day   post transfer by means of a performance management tool .I must accept the   evidence tendered by the respondent on the combined critical incidents of   February and June 2016 proving insurmountable   for the respondent. I must also accept that the complainant showed a distinct   lack of awareness of the severity of the circumstances he found himself in .It   was clear that he had attended a Disciplinary meeting on June 20^th   and I would have thought it reasonable for him to have a contingency in place   to follow up on paper work which might arise from this process while he was   in Poland during the course of his period of suspension .

I have reflected carefully on the effect of the dismissal   on the complainant and I noted his loss of livelihood and benefits .I found   that he made an unsuccessful transfer from the Finishing Department to the   Moulding Department .

I have concluded that based on the unique facts of the   gravity of the complaint in this case , that the sanction of dismissal was   however, proportionate to the alleged misconduct .

Decision:

Section 8 of the Unfair   Dismissals Acts, 1977 – 2015 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.

I find that the claim for   unfair dismissal has not succeeded and the respondent is entitled to rely on   Section 6(4) of the Act ,that conduct formed the substantial reason for dismissal in this   case .

Unfair Dismissal