Complainant

Respondent

Anonymised Parties

A Product Assembler

A Medical Devices Company

Representatives

Lars Asmussen B.L. instructed by Sean Ormonde & Co. Solicitors

Jacob and Twomey Solicitors

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-00010143-001

09/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00010143-003

09/03/2017

The complainant was employed as a products assembler from November 1st 2010, initially on a temporary contract until his employment was terminated on October 18th 2016 following disciplinary action.

He was paid €10.00 per hour

The respondent is a manufacturer of medical devices and safety and precision standards are vital.

The complainant was summarily dismissed for gross misconduct for repeatedly tampering with a machine in breach of standard operation procedures and safety standards.

A colleague, temporarily replacing the complainant had a finger caught in the machine as a result.

This was followed by a Safety inspection which confirmed that the settings on the machine had been altered. As part of this Safety inspection the complainant was interviewed at which he admitted that he had done it and said it was for the purpose of achieving his production targets.

An investigation took place at which the complainant again admitted that he had changed the settings on the machine. It was not the first time he had tampered with a machine.

He had been trained on the operation of the machine and accepted this at the investigation meeting. The trainer gave evidence to the hearing also to this effect. It was carried out ‘on the job’ but participants gathered round the trainer to observe the training.

The investigator concluded that the complainant, and by his own admission had by-passed safety buttons twice, despite having been trained on the use of the buttons in June 2016

This was followed by a disciplinary hearing at which the complainant was represented and following which his employment was terminated. The reasons given were the complainant ‘s disregard for safety procedures, wilful damage or unauthorised interference with company property and equipment and abuse of position of trust or responsibility.

He appealed the decision which was affirmed on appeal.

At all stages the complainant’s rights to natural justice were fully vindicated.

The complainant was dismissed for gross misconduct and his claim under the Minimum Notice and Terms of Employment Act also must fail.

The complainant makes a number of points about the process and events leading up to it.

In relation to the training which was said to have been given on June 22nd 2016 said that he was not aware that training was actually taking place on the use of the machine on that date. He did see the trainer, who he knew well in the room but was not aware that training was going on or what he was doing there.

An onus falls on the respondent to ensure that training needs are met and to verify this. A previous system for recording training activity was no longer used.

Secondly, he says that the person who carried out the investigation was not impartial.

The evidence for this was in an email related to the referral of a complaint by the complainant to the WRC where the later to be investigator referred to that complaint as having been made against him ‘personally’. This perception of the complaint as personal meant that he should not have had any role on the investigation.

In addition, the complaint against the investigator was one of bullying.

Further, the investigator sent an internal email in the course of which he referred to the possible threat of action by a regulatory body, but this was never put to the complainant. This was an attempt to enhance the seriousness of the complaint to the recipient.

In general, the report of the investigator misrepresented the facts which emerged during the safety fact finding processes, and in particular the complainant’s rejection of the fact that he had not received the training on June 22nd referred to. The investigator took no steps to verify this assertion.

Thirdly, no translation was provided at the ‘Safety Investigation’ immediately following the incident where the co-worker had his finger caught in the machine.

Similar criticism is made of the disciplinary stage where the complainant actually answered ‘no’ to a question from the decision maker as to whether he had received training. He did state that he recalled the trainer, an engineer, entering the room but did not know what he was doing there or that he was carrying on training.

He also stated that he only tampered with the machine to enable him to work faster.

The decision to terminate the complainant’s employment in the circumstances was unfair and unreasonable. Any deficit in the complainant’s knowledge was a result of the respondent ‘s failure to carry out the training properly, and at the very least this should have been considered in mitigation.

The respondent failed to consider a lesser or more proportionate sanction, and the failure to do so itself renders the dismissal unfair.

As the dismissal was unfair, then the refusal to pay notice is a breach of section 4 of the Minimum Notice and Terms of Employment Act, 1977.

The complainant admits that he overrode a safety feature on two machines. This resulted in minor injury to a co-worker.

While there are a number of alleged breaches of the requirements of fair procedure the main ones turn on the role of the investigator and his impartiality in relation to the complainant.

Secondly, there is the issue as to whether the complainant had been trained in the use of the machine, and the relevance of this to the final decision.

The two points cross over insofar as there is an allegation that the investigator, among others in the disciplinary process, failed to take account in reaching their conclusions on the appropriate sanction of the fact that the delivery of this training was disputed.

In relation to the training event itself there is a conflict in the evidence.

The person giving the training told the hearing he entered the room in which the complainant worked, which was accepted as being noisy, and gathered the complainant and the other employees around to deliver the training.

The complainant says that while he knew the trainer quite well he did not know what he was doing there and that he was not the recipient of any training. There are no records of the training having been carried out, or of the training outcomes being understood by the participants.

The main question that arises here is what weight was, and should have been attached to this fact. This arises initially in relation to the investigator and then subsequently in relation to the decision makers in the disciplinary process in reaching their conclusions; firstly about the complainant’s culpability, and then in relation to the sanction to be imposed.

Turning to the investigator first, he concluded that the ‘training was given and acknowledged by both individuals’ (presumably the complainant and the trainer).

However, this is not what the notes of the investigation meeting with the complainant show.

In those the complainant casts doubt on the quality of the communication; confirming that the trainer was in the room but that he ‘wasn’t sure that it was training’, and correcting a statement that was put to him to the effect that training was given to everyone by saying ‘not everyone was given the training’.

This is also clear from the note of the meeting carried out for the purposes of the original safety investigation where the complainant again stated that ‘he thought that the engineer was just been [sic] friendly, he was laughing and joking’.

So, there are grounds for doubt about the efficacy of the training session.

The evidence that the investigator was biased as a result of the email referred to above is flimsy and contrived and I do not accept it.

The complainant is on stronger ground, however when he criticises a conclusion in the investigator’s report that does not accurately reflect the evidence he gathered. The conclusion that ‘training was given and acknowledged by both individuals’ is not in accordance even with the information gathered.

On the other hand, the complainant was asked by the investigator why he did not take steps on the day to clarify the position regarding the use of the machine with his team leader.

His answer was; ‘I nearly know everything’.

This is a relevant point. It seems rather odd that the complainant observed this disruption in the normal day’s activities and was not sufficiently curious as to what was going on to establish whether he should be a part of it or to make some inquiry about it. His protestations in this regard are somewhat disingenuous. Did he not regard an engineer who did not work in that location entering the room and just being ‘friendly, laughing and joking’ as something out of the ordinary, and yet take no steps to find out what was going on?

Precisely what weight was attached to this specific training issue by the later decision makers is not clear from their stated reasons for the dismissal, or whether it was regarded as significant at all.

It does not feature in the written reasons stated for the termination of his employment; those focus on disregard for company safety procedures etc and more specifically in the appeal outcome that he ‘overrode the safety feature, endangering the health and safety of yourself and to your [sic] colleagues’.

The key question therefore is whether the failure to properly administer the training on June 22nd (even accepting the claim by the complainant, which I do not fully) can be said to be the critical ingredient in the complainant’s conduct.

Secondly then, can this be taken to a point where it can be said that the respondent acted outside the range of reasonable sanctions in terminating his employment.

In other words, can his actions in tampering with the machine be attributed to this lack of training?

Related to this is whether the flaws in the process referred to above can be said to be so fatal to fair procedure that they render the process unfair.

I give a negative answer to both these questions.

The complainant was represented at the initial disciplinary hearing at which any alleged flaws in the investigator’s conclusions could have been challenged. He did so.

There is at least considerable doubt about this training, but the complainant’s reliance on it is not convincing. It is based on the argument that, had he been properly trained on that day, he would not have tampered with the machine.

He told the decision maker that he had not received the training and gave the account referred to above. So, this information was fully available to the decision maker and was therefore a known factor in reaching his decision.

Similarly, on appeal one of his grounds of appeal was that he did not know that he was bypassing a safety feature and that he had not received the training referred to above. This was discussed with the appeal decision maker who had before him the complainant’s argument regarding the training, the change from the old system of recording training outcomes etc, and that he should have received a final warning only.

The appeal was rejected. But, the complainant’s case was fully ventilated in the process.

The circumstances in which as Adjudicator will intervene in the disciplinary processes are governed by the following considerations.

It is well expressed in the decision of the EAT in Looney and Co v Looney UD843/194 and the view of Dr Mary Redmond to the same effect that;

‘It is not for the EAT to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we, in the employer’s position, would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’.

As will be clear from the text this does not entirely rule out intervention by an Adjudicator but sets the standard to be applied as the actions of ‘what a reasonable employer in his position and circumstances at that time would have done…’

Similarly, the decision in Bank of Ireland v Reilly [2015] 26 E.L.R 229 which sets down the correct role of an adjudicator and which of course is the guiding principle in cases such as this.

That case restated and set the ‘range of reasonable responses’ test, and stated that it is not a matter for the court/adjudicator to substitute its own judgement for that of the employer; the question is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.

Having reviewed the facts of the case, and notwithstanding some deficits in the process these are not sufficient to affect my conclusion that the decision to terminate the complainant’s employment was fair.

I do not accept that the alleged absence of training is sufficient to displace the onus of responsibility that fell on the complainant not to interfere with the normal functioning of the machine, and I believe this was the key factor in the respondent’s mind and the one which led to the termination of his employment.

Such a decision was within the range of reasonable responses, as discussed above.

Following on this, and as the dismissal was for misconduct I do not uphold the complaint under the Minimum Notice and Terms of Employment Act, 1977.

For the reasons set out above I do not uphold complaints CA-00010143-001 and CA-00010143-003 and they are dismissed.

Unfair dismissal.