EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO. UD142/2015
Niamh Shelley - Claimant
against
Suir Pharma Ireland Limited T/A Suir Pharma -Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms K. T. O' Mahony BL
Members: Mr. J. Hennessy
Mr. F. Dorgan
heard this claim in Thurles on 4th May 2016 and 6 September 2016
Representation:
Claimant: Mr. Tom O’Donnell BL instructed by
Mr. John McCabe, John M Joy and Co.,
38 O'Connell Street, Clonmel, Co. Tipperary
Respondent: Ms Juanita Brennan, IR/HR Executive, IBEC, Confederation
House, Waterford Business Park, Cork Road, Waterford
Mr. Damian Cahill, IR/HR Executive, IBEC, Knockrea house, Douglas, Cork
The determination of the Tribunal is as follows:-
Summary of Evidence
The respondent is a pharmaceutical company. One of its products is Diazepam, a controlled anti-anxiety drug. A special licence is required to manufacture controlled drugs. The active ingredients, from the time of their receipt and controlled drugs must be stored in a locked and secure environment. CCTV cameras are installed both internally and externally to ensure the security of the manufacture and storage of the controlled substances. An Garda Siochana, on an annual basis, and HPRA, on a biannual basis, audit the respondent’s storage system to ensure the level of security is adequate. There would be severe financial consequences for the respondent if market share were lost due to a security breach. The claimant commenced employment with the respondent in December 2002. At the relevant time she was a manufacturing operator in the compression department.
On 3 September 2014 An Garda informed the company of the theft of Diazepam from its premises. The Head of Operations (HO) was in charge of the investigation into the theft. Following a review of stocks, production and security, including a review of the CCTV footage for the period 1st - 5th September 2014, it was clear to HO that an unauthorised removal of Diazepam had taken place in the link corridor of the compression area on 3rd September between 18.41- 18.55 (the relevant period). The claimant had left the drums unattended for around 15 minutes and the footage showed another employee (JX) taking four containers of Diazepam from the drums during this time. Around 6,000 drugs were taken.
During a review of the manufacturing week 1st - 5th September with the claimant on 9th September 2014, she indicated to HO that nothing unusual had occurred during the relevant period and on being questioned in relation to JX she maintained the same position. During a further review with the claimant the following day (10th September), having viewed the excerpt from the CCTV footage covering the link corridor between 18.40 -19.00, she told HO that JX had asked her on 3rd September if he could take some Diazepamfor his own use and she did not realise how much he intended taking. The claimant was suspended on pay pending further investigation.
The CCTV footage shows the claimant placing one drum of Diazepam on the weighing scales in the links corridor at 18.41 and a second drum at the scales at 18.43. Between 18.43 and 18.46 the claimant does not complete the weighing processbut is seen lingering in the corridor and latterly using her mobile phone, which is not permitted in the area. At around 18.46, JX entered the corridor from the Unipress side and gestured with his head to the claimant to leave in the direction from whence he had come. She left immediately but as she was doing so she looked back at JX as he was preparing to take tablets from the drum on the scales. The claimant spent around ten minutes talking to BC (another compressor) in Unipress and during this time the JX filled four containers with Diazepam putting on the caps, which he had placed on top of the scales earlier that evening. When JX returned to Unipress the claimant returned to the compression link corridor where she topped up the drums of tablets.
On 15 September 2014, on HO’s instructions, the manufacturing manager (MM) held a formal investigation meeting with the claimant to review the video footage and obtain her explanation for her actions on 3rd September. When questioned as to whether there had beenany prior arrangement between herself and JX the claimant admitted that JX had asked her if it was ok to take some Diazepam for his neck pain and she told him that it wasn’t anything to do with her. She agreed that there had been a subtle sign between them when he entered the corridor but it did not have anything to do with her “if he was going to take tablets for his neck it was his business”. She had used her mobile phone as she was receiving texts from her former partner. She went to the Unipress corridor to talk to another compressor.
Having considered her responses and the CCTV footage MM concluded that the claimant had co-operated with JX to allow the theft of four containers from the batch she was processing on 3rd September.
In his evidence to the Tribunal MM’s position was that leaving the drums unattended in the corridor posed a risk of cross-contamination and to accountability of quality. The claimant’s evidence was that the drums are left in the corridor until the requisite weight is arrived at. JX had been arrested on 3rd September when he left the respondent’s premises during a break. When he did not return after the break the claimant sent him a text. He was later charged with an offence and within days he sent a letter of resignation to the company.
Having completed the investigation OH concluded that there was a clear case of theft by JX and that the claimant had been complicit in it by providing assistance and facilitating the theft. He completed an Investigation Report, which was sent to the claimant for review. By letter of 18th September the claimant was invited to a disciplinary hearing on 19th September 2014. In this letter she was told that she would have the opportunity to comment on the investigation report, ask questions and reply to the allegations being made against her, present any relevant information and call relevant witnesses. She was advised that a sanction up to and including summary dismissal may be imposed on her.
HR specialist (HRS) along with the finance manager (FM) conducted the disciplinary hearing on 19th September 2014.The claimant denied knowing anything about containers of tablets being taken. She did not notice the length of time she had left the drums of Diazepam unattended. She knew that JX was going to take a few tablets for personal pain relief but she did not report it to a superior because she believed he was only taking one or two. When she glanced back she did not notice that JX was taking a container of drugs. Her defence was that she had told JX that she wanted “nothing to do with it”. She added that she was under stress and did not know what she was doing.
Having considered the evidence and viewed the CCTV footage, the disciplinary panel (HRS and FM) concluded there was collusion between the claimant and JX. The claimant had known in advance that JX intended to take controlled drugs but failed to report it and her subsequent action on 3rd September as seen on the CCTV footage, in particular the non-verbal communication between the claimant and JX, led to the conclusion that she had facilitated the theft by JX. By letter dated 22nd September 2014, the claimant was notified of her summary dismissal for gross misconduct, effective as of 22nd September 2014.
The drugs were destined for the local area. The matter could have serious ramifications for the wider community, the company, its clients and its 130 employees. The disciplinary panel considered alternative sanctions but in light of the possible ramifications of such wrongdoing they decided the claimant could not be in contact with drugs and there were no other vacancies. The claimant appealed her dismissal but her appeal failed upheld.
The claimant told the Tribunal that she felt that her state of mind, stress and good record were not considered by the respondent. Earlier in the year, in February 2014 a male employee (AE) had shouted at her in the car park because she had parked too close to his car. She drove off but he kept shouting and calling her names. She made a complaint to the shift manager (SM), who had a word with AE. The respondent dealt with the matter by sending AE to another work plant but as he was allowed to remain on the same shift hours it meant she saw him in the canteen and on work courses. She was not satisfied that the respondent had done all that it could and she never got over it. She was adamant that she did not facilitate JX in taking the drugs.
JX wanted to take one or two drugs for the pain in his head. She did not know that he would take thousands of drugs. She was shocked that the respondent thought that she had something to do with the theft. JX’s mother worked as a shift manager and JX was allowed to resign but she was dismissed. The Gardaí never spoke to her about the incident. The claimant was represented by her trade union at investigation, disciplinary and appeal meetings.
Determination
The respondent dismissed the claimant for failing to report that JX intended taking some controlled drugs and for subsequently facilitating him in the theft of the drugs.
The function of the Tribunal in cases of misconduct is not to determine the innocence or guilt of the employee or whether the Tribunal would have dismissed her in such circumstances. The Tribunal must determine what a reasonable employer would have done in the circumstances that faced the employer, Looney & Co. Ltd. v. Looney (UD 843/1984). Applying the reasonable employer test the Tribunal asks itself whether the employer in this case had a genuine belief, arising from a fair investigation, that the employee was guilty of the alleged misconduct and whether the penalty of dismissal was disproportionate.
The Tribunal is satisfied that the respondent carried out a fair investigation. It is further satisfied that it was reasonable for the respondent to conclude from the evidence before it that the claimant had colluded with JX in and about the theft of the drugs. She admitted that she was aware that JX was going to take some of the controlled drugs, she failed to report this to a supervisor or management and her subsequent actions over the relevant period on 3rd September are strong indictors of the collusion and facilitation by the claimant of the theft of the drugs. Protestations by the claimant that she wanted nothing to do with the theft of the drugs are inconsistent with her behaviour over the relevant period on 3rd September and do not detract from the fact that she facilitated the theft. The wrongdoing constituted gross misconduct warranting summary dismissal. In light of the possible far reaching effects of the wrong committed in this case the Tribunal finds that the sanction of dismissal was not disproportionate.
The claimant’s belief that JX was only going to take one or two drugs is inconsistent with leaving him alone in the link corridor with the two drums of tablets for nine minutes or more. There were also inconsistencies between the evidence given by the claimant during the internal investigatory/disciplinary process and that given during the hearing as to why she used her mobile in the link corridor and why JX had asked her for tablets on 3rd September.
The claimant was aggrieved that JX “was allowed” to resign while she was dismissed. However, the only evidence before the Tribunal was that JX tendered his letter of resignation shortly after he had been charged and brought to court.
For the above reasons the Tribunal finds that the dismissal was fair and the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)