ADJ-00006307

Complainant

Respondent

Anonymised Parties

A Production Operative

A Medical Devices Producer

Representatives

SIPTU

IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00008580-001

5^th December 2016

The Complainant was employed by the Respondent from 15th January 2015 to 18th September 2016 and his weekly rate of pay was €430.23c.

The Complaint was submitting that he had been unfairly dismissed by the Respondent in breach of his rights under the Unfair Dismissals Act 1977 and the Respondent was denying the complaint.

IBEC said that the Complainant commenced employment with the Respondent on 15^th January 2015.   He received and signed a contract of employment, which stated in the Disciplinary Procedures Section that “certain grave breaches can lead, following consideration of all circumstances by the Company, to summary dismissal.”

IBEC said the Complainant was employed as a production operative on the Manual Assembly Line of the Patient Set.   They said the Patient Set is a medical device that delivers contrast media intravenously to hospital patients at high speed at a pressure of up to 12 bar.     The application requires the delivery of the contrast media to be precise in terms of flow rate and delivery volume.   The device goes through visual, dimensional, functional and bioburden testing through each stage of manufacture.   As the product is an intravenous human intervention the highest standards of Good Manufacturing Practice (GMP) must be observed.     Hygiene and Health and Safety are of paramount concern throughout the production cycle.

IBEC said that the process step during which the incident that led to the Complainant’s dismissal occurred was on the ‘Gluing Line’, where the Complainant was working.     IBEC said this is a 4 person operation where the operators work as a team in the following manner.

Step 1                                                                                                                                                                          The device is placed in a nest, clamped secure and the operator begins the test by pushing a button. The device is rotated by means of a motor and number of sensors.   The test is observed by the operator to ensure the device can achieve full rotation in both directions.   A failure in this test means the device will not function in the field

Step 2                                                                                                                                                                         The device is glued in 3 locations through specific glue channels and then placed in a curing oven.

Step 3                                                                                                                                                                          The device is rotated by 180 degrees.

Step 4                                                                                                                                                                           The device is glued in 2 locations through specific glue channels and placed in a curing oven.     The device is then rotated 180 degrees back to its original position.

IBEC said that at the time of the incident the Complainant was working on Step 1 of this operation.

IBEC said it is critical to note that these tasks are conducted in a clean room environment, where employees are required to be gowned (picture submitted to hearing)

IBEC said that on Thursday 22^nd September 2016, at approximately 12.15 pm, the Complaint was working on the assembly line on a bench directly adjacent to a colleague, MG, a Quality Technician, who was in the process of being trained in inspecting patient sets.   On the table was a 70% isopropanol spray (IPA) container used for sanitising purposes as part of the manufacturing operations.   IBEC said isopropanol is a highly flammable irritant.   (Copy of data safety sheet in that respect provided).   IBEC said that for some unknown reason, the Complainant lifted the spray container and sprayed it across at MG, hitting him on the leg.   Another Quality Technician, MR, saw what the Complaint had done and she shouted at him to stop.

MR reported the matter to the Quality Manager, RG.

On 27^th September 2016, the Manual Assembly Supervisor, GC interviewed the Complainant as part of a Disciplinary Investigation.   During the interview the Complainant accepted that he had lifted the container and he stated that he had sprayed it under the table towards MG.   He stated that he was the only person who sprayed the IPA.   However during the investigation, GC c concluded that MG had retaliated by spraying IPA back at the Complainant and both parties had sprayed IPA diagonally across the table and not beneath it.

The Complainant was suspended on full pay from 28^th September pending a Disciplinary Hearing.     The Complainant was requested to attend a Disciplinary Hearing that was held on 30^th September, conducted by the Operations Manager and he attended with his named SIPTU Shop Steward.

IBEC said that prior to the Disciplinary Hearing the Complainant handed in a written statement to the Operations Manager accepting his wrongdoing and making a mitigation case and stating that he wished to apologise for his “foolish and irresponsible actions” and accepting that he understood that “his behaviour did not meet the standards that the Company accepted.”

Following the Disciplinary Hearing and having given the matter full consideration the Operations Manager stated that the Complainant’s behaviour amounted to gross misconduct and that the decision was to summarily dismiss him.   IBEC said that this was by reason that the action of the Complainant represented an act of irresponsible horseplay, failure to follow good manufacturing practice and was a breach of health and safety regulations likely to cause injury to fellow employees and amounted to gross misconduct -     and the Operations Manager further stated that the Complainant’s actions represented a fundamental breach of the level of trust and confidence necessary for an employment relationship to continue.  

The Complainant was informed of his right to appeal the dismissal decision to the HR Manager, which he did by letter of 7^th October 2016, stating that he believed that dismissal was too harsh a penalty in the circumstances.

The Appeal Hearing took place on 21^st October 2016 and the Complainant was represented by his SIPTU Shop Steward and a full-time SIPTU Official.   At the Hearing SIPTU stated they accepted that the Complainant did engage in horseplay and they accepted that is a serious matter.     However SIPTU submitted that the Complainant’s actions did not warrant dismissal.  

SIPTU further submitted that the actual event was not a breach of safety as the spray was not directed towards the face of the other employee, but that this did not diminish the wrongdoing.

IBEC said the Complainant’s grounds for his appeal amounted to a questioning of the proportionality of the sanction of dismissal on the grounds of misconduct.

On 27^th October 2016, following due consideration of all matters raised, the HR Manager wrote to the Complainant stating that the dismissal decision was upheld.

The Respondent said they operate in the Medical Devices Industry as an outsourcing agent for other manufacturers and they are governed by ISO 13485, which specifies requirements for a quality management system, where an organisation needs to demonstrate their ability to provide medical devices and related services that consistently meet customer and applicable regulatory requirement.     They said as such Good Manufacturing Practice (GMP) plays a vital role in their business environment.   They said that all medical devices companies are continuously monitored and inspected to ensure compliance law.

IBEC said that in such an environment this incident could not be viewed as a minor indiscretion as portrayed by the Complainant where he stated he sprayed the IPA below the waist of a colleague and that this constituted some form of playful horseplay.   IBEC said it was evident from the Investigation that the Complainant sprayed his colleague above the table level, encouraging his colleague to retaliate.   IBEC said that this was correctly viewed by the Respondent against the background of necessarily rigorous rules and regulations in which the Industry operates and more importantly against the potential consequences of lack of compliance and breaches of these rules and regulations.    

IBEC said that in the normal course of events, in this type of manufacturing environment, there are many checks and balances implemented every day to ensure adherence to the strict guidelines and regulations necessary to ensure the quality of the Respondent’s medical products that are used in intravenous human medical interventions in hospitals.   IBEC said the Respondent operates their work under contract for third parties, which could be suspended or taken away temporarily or permanently if they did not adhere to the GMP standards required in their business.

IBEC said the Respondent rightly concluded that the Complainant’s actions fell way short of the standards of behaviour required for operating in such a GMP environment in the Medical Devices Industry amounts to gross misconduct and could not be tolerated.

IBEC said it is critical to highlight that the Complainant’s actions meant that the production of this device from a quality/safety perspective did not receive the close scrutiny it required and any malfunction of this device could result in a serious failure during a clinical procedure.

The Respondent submitted the dismissal of the Complainant was justified and it does not amount to an unfair dismissal in accordance with Section 6(4)(b) of the Unfair Dismissals Act 1977, as it resulted wholly from the misconduct of the Complainant and the Respondent submitted that in these circumstances the Complainant’s complaint is not well founded, it must be rejected and must fail.

Following the submissions of the Complainant, IBEC said that no alleged procedural issues or irregularities were raised by SIPTU as part of the appeal process.

SIPTU said the Complainant commenced employment with the Respondent on 15^th January 2015 and he was employed as a general operative on a contract of employment as a permanent employee.

SIPTU said that apart from being spoken to once to improve his attendance, after which her was never once late, the complainant had a completely clean disciplinary record in the course of his employment with the Respondent.

SIPTU said that on Thursday 22^nd September 2016, the Complainant was working at ‘Glue Line 3’ with MG and MR working directly across from him.   MG was relatively new to the employment, still with his probationary period and is a good friend of the Complainant.       The Complainant picked up a bottle of IPA (70% Isopropanol spray, 30% water – a cleaning solution that is non toxic), and sprayed it under the table on MG’s trousers.     The Complainant did this in a playful, albeit completely misguided and inappropriate, sense of fun.   He then left the bottle of spray back on the table.

5 days later, Tuesday 27^th September, the Complainant was interviews by his Supervisor, GC.   The purpose of the interview was to discuss a report made of the incident on 22^nd September.   SIPTU said this ‘interview’ was presented as part of the investigation into the incident.   At the time no indication was given at the time that the procedure entered into may lead to disciplinary action up to and including dismissal.     The Complainant was not accompanied or represented at this Meeting. He did not receive any statement of complaint from the person who reported the incident, nor a statement of any other witness.   At this Meeting the Complainant confirmed exactly what had taken place on 22^nd September.

The Complainant was called to a Meeting with the Production Manager on the following day and GC was also present.   SIPTU said that no indication was given that the process could lead to disciplinary sanction up to, or including dismissal.       At this Hearing the Complainant was accompanied by his named SIPTU Shop Steward.     GC presented the statement taken from the Complainant the previous day and the Complainant signed it as a true account on the incident.   The Production Manager then stated that the situation was unacceptable and that the Complainant was putting safety in jeopardy and jobs at risk.     The Production Manager stated that the Complainant was to be place on paid suspension from that day and that he was to attend at a Disciplinary Hearing on Friday 30^th September.   SIPTU said that no statements from any complainant or witnesses interviewed as part of the Investigation were given to the Complainant at this Hearing, nor did he know of the assertions others may have made in relation to the incident.

SIPTU said that the Meeting on 30^th September was again conducted by the same members of management and the Complainant was again accompanied by his SIPTU Shop Steward.   SIPTU said no caution was given that the Hearing could result in disciplinary sanction up to and including dismissal.   (However it should be noted that in his direct evidence the Complainant confirmed that he had in fact been told/advised by management that the process could result in disciplinary action up to an including dismissal).

SIPTU said that the Production Manager gave the Complainant his letter of dismissal at the start of the Hearing.   SIPTU said that amongst other matters that the Respondent had conducted “……a full investigation into these allegations.”     SIPTU said that in the dismissal letter the Respondent finds that the Complainant had committed an act of ‘gross misconduct’, had failed to follow Good Manufacturing Procedure (GMP), and committed a “….breach of safety regulations likely to cause injury to fellow employees”.

SIPTU said the Complainant was completely shocked by the decision to dismiss him from his employment and he appealed the dismissal decision on 7^th October.

SIPTU said the Appeal was heard by the HR Manager, MS, accompanied by a named notetaker.     The Complainant was represented at appeal by a full-time SIPTU Official and by his SIPTU Shop Steward.     SIPTU said that the oral submission of appeal at the Hearing included the following grounds.

1. That the Respondent had failed to ever provide the Complainant with statements of complaint, or any other witness statements so that he might address their content   -     either in accusation or corroboration of his position.     It was pointed out that that this was contrary to the fundamental requirement of prior notice in natural justice.

2. That the Respondent failed to follow their own procedures in that they arbitrarily characterised the incident as ‘gross misconduct’ and ‘likely to cause injury’ and that his is not consistent with a commitment to “ensure…..equitable disciplinary sanction” as the conduct was characterised in exaggerated terms.

3. That, without prejudice to the foregoing, the Complainant had immediately acknowledged that he had acted like a fool and that his conduct warranted a disciplinary sanction would have the effect of correcting the offending behaviour and for a young employee like the Complainant this would be a well-learned lesson.   It was pointed out that it appeared the Respondent had not considered any action apart from dismissal.

4. That what was being characterised as a “fundamental breach of trust and confidence necessary for the employment relationship to continue”   would be more appropriately considered in that realm of raising a concern in that regard, for the Respondent.     SIPTU said squirting a spray foolishly once, grievous though that is, is difficult to credibly contuse as a repudiation of the contract of employment)

SIPTU said that by letter of 27^th October, the Respondent notified the Complainant that his Appeal had failed.   In this letter the Respondent suggested that the grounds of appeal were other than those actually raised at the Appeal Hearing.     SIPTU said it had not been suggested that “horseplay does not warrant dismissal”.     SIPTU said that in all the circumstances this was never suggested, but the response reads as if to suggest that this was the Complainant’s position, it was not.   SIPTU said we do not know how the other grounds of appeal might be adequately summarised as “breach of safety” and “fundamental breach” as they do not convey the actual submissions made, but that is what the letter dismissing the Appeal states.

SIPTU quoted from Section 6(3) of the 1977 Act which states: “In determining if a dismissal is an unfair dismissal, regard may be had, if the Rights Commissioner, the Employment Appeals Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so -- to the reasonableness or otherwise of the conduct (whether by act or omission) of the Employer in relation to the dismissal…..”

SIPTU submitted that, in accordance with the grounds submitted at appeal stage the Respondent acted unreasonably by failing to give the Complainant the opportunity to know the precise statement that were made against him and by whom (it is only now that he finds out that it was asserted that someone had to shout at him to stop); failing to provide any statements of any other witness in what the Respondent considered a ‘full investigation’.

SIPTU said that in addition they submit that the exaggerated terms in which the allegations seem to have been formulated and which infected the investigation and disciplinary process throughout, served to elevate the incident to a level of offence above and beyond what any objective reading of the incident discloses. SIPTU said that while very simple and innocent action may serious risk or hazard in the workplace, it is still important to describe matters as they are in actuality, not to wildly assign the innocent foolish single act of a young man as being of the order of unforgiveable destructiveness, where clearly it is not.

SIPTU referred to the case of O’Leary -v-   Eagle Star [UD 99/2002] in support of their position.   SIPTU said that while the fact of that case are distinguishable from the instant one, they refer more to the approach of the EAT took in that case in considering the credibility of an employer’s protestations of being under threat and found that; “the position of the Respondent Company, on the balance of the evidence, was totally over the top.”

SIPTU submitted that the Respondent in this case acted unreasonably in that the sanction imposed was completely disproportionate to the actual, acknowledged offence, in consideration of all of the above.

SIPTU submitted that the Complainant was unfairly dismissed by the Respondent, and that it is no defence of an unfair action to state that we have treated another equally unfairly and in the same regard.       They submitted that, in light of all the facts and circumstances of the case, the Respondent acted unreasonably in determining to dismiss the Complainant and they said this is contrary to the provision s of the 1977 Act.

SIPTU sought redress in the form of compensation as provided for in the 1977 Act.

The Complainant gave evidence in relation to his efforts to secure alternative employment and mitigate his losses.

Based on the foregoing SIPTU and the Complainant submitted the complaint was well founded and they sought a favourable decision.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

There are a number of procedural issues of concern in the instant case.

Firstly the Complainant was not informed who had made the complaint against him.   This offends against principles of natural justice and against S.I. 146 of 2000 which provides that the source of allegations be provided to an employee (4.7 in particular applies)

The Complainant was not provided with full details of the allegations against him and indeed the full details of the allegations were never put to the Complainant or his Representative.   For example it only emerged at the Hearing that it had been alleged, and accepted by the Respondent, but never put to the Complainant that he had sprayed the IPA at his colleague above the table/bench as distinct from below the table/bench.   This is not insignificant, as based on the pictures provided to me at the Hearing employee are fully ‘gowned’ with the only part of their body exposed is the face.   This means that anything sprayed at an employee other than directly at/on their face would only reach the protective garments worn and as the Complainant and his colleague state he sprayed under the table yet he was never afforded the opportunity to refute this and challenge any evidence the Respondent had in this respect.   This of course means that the Complainant was not afforded the opportunity to respond to all allegations or to confront or question all evidence used by the Respondent in making their decision and this also offends against principles of natural justice and the provisions of S.I No 146 of 2000 (4.6 and 4.7 in particular refers).

I note that at the start of the Disciplinary Hearing on 30^th September 2016, 3 days after the Investigation Meeting and 2 days after it was confirmed in writing to the Complainant by the Respondent that the Investigation into the matter continues and that he was suspended with pay before being required to attend a Disciplinary Meeting on 30^th September 2016, the Complainant was handed a letter by the Respondent (the Operations Manager) in which his dismissal was confirmed.     This means that the decision to dismiss the Complainant was made (and indeed typed and signed) before the hearing of the disciplinary section began (it was only investigation prior to this) and before the Complainant and/or his Representative had any opportunity to make any submissions or representations on the matter of appropriate (if any) discipline or any submissions or representations in mitigation.   It also tends to support the submissions of the Complainant that the matter was prejudged.

For all of the foregoing reasons I find and have concluded that the dismissal was unfair and in breach of his rights and entitlements under the 1977 Act and that accordingly the complaint is upheld.

While I do accept that dismissal was excessive in all the circumstances of the case, however, I also find that the Complainant by his actions has contributed significantly to his dismissal by his actions and that fact has been taken into account in the redress awarded.

Based on the above findings and conclusions I have decided that the Complainant was unfairly dismissed by the Respondent and that accordingly the complaint is well founded and it is upheld.

In considering the appropriate redress in the instant case I have taken into account all matters including the views expressed by the parties at the Hearing and I have concluded that there is an absence of the minimum level of trust between the parties necessary to sustain an employer / employee relationship and that accordingly the only appropriate redress is compensation in the instant case.

As stated above I have concluded that the Complaint by his own behaviour contributed to his dismissal and that fact is taken into account in the level of redress awarded.     I have decided that the Complainant was unfairly dismissed by the Respondent and I have concluded that the level of compensation that is just and equitable in the circumstances is €9,500.00c and I require that the Respondent pay him that amount within 6 weeks of the date of this decision.