Complainant

Respondent

Anonymised Parties

Fill Pack Operator

Medicinal and Cosmetic Product Manufacturing Plant

Representatives

Shane McDermott Mullaneys Solicitorr

Terry McNamara 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-00012387-001

10/Jul/201710/Jul/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012387-002

10/Jul/201710/Jul/2017

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

CA-00012387-003

10/Jul/201710/Jul/2017

The claimant was employed as a Fill Pack Operator with the respondent from the 2nd.Feb. 2015 to the 15th.March 2017.He worked a 38-hour week and was in receipt of €525 weekly wages.

The claimant submitted the respondent was in breach of the Payment of Wages Act 1991 for the non-payment of wages amounting to €3,675. He complained that the respondent had failed to pay him his statutory notice period. The claimant submitted that he was unfairly dismissed on the 15th.March 2015.

The claimant set out his account of the events leading up to the dismissal – he was adamant that he asked the Team Leader for help and arising from this Mr. G was sent to assist him. He asserted that he repeated his request for help as he was struggling with meeting the targets. He asserted that he was under severe pressure to complete the targets between 7.30 – 8.00, that he was working on his own and he intended to go back to complete the checks but became distracted with the other demands on his time. He had told the investigator how easy it was to make mistakes given the number of tasks they were required to complete. He asserted that when he tried to explain this this to Mr. B he did not want to listen. He asserted that 2 people on day shift had the same targets as him. He had applied for work to many places but was unsuccessful. He stated that he spent a few months in Ireland – he had a child with autism – he eventually returned to Poland in Sept. 2017.

He confirmed under cross examination that he understood the disciplinary procedure, that he had received training GMP training and that he was aware that gross misconduct could lead to termination of his employment. It was put to the claimant that he did not signal he required help and that his request for help was being advanced to justify his actions in not completing the quality checks.

In summing up the claimant’s representative submitted that the investigation was flawed from the outset, the evidence of Ms. MJS and MR.SB was in conflict regarding whether or not a recommendation was given by Ms. MJS to proceed with disciplinary action. It was contended that Mr. G should have been interviewed in light of the conflict between the evidence of the claimant and his Team Leader regarding requests for assistance. It was contended that Mr. B did not consider alternative sanctions.

The respondent set out the backdrop to the establishment of the company as manufacturing facility for medicinal and cosmetic products- the plant is regulated by the Health Products Regulatory Authority. The claimant’s role involved the general use and application of packaging machines, assisting in machine set up and line changeovers and ensuring all tasks were carried out according to GMP procedures and compliance standards.

It was submitted that on the 20th.Jan. 2017 a suspected data integrity breach took place – the claimant had confirmed in writing that he had completed final quality checks on products but it was submitted that the checks in fact had not been completed. The respondent set out the stages of an ensuing investigation – initially a human factor analysis tool was completed on the 21st.Jan. 2017 and a preliminary investigation interview was conducted by Mr.GM. on the 1st.Feb. 2017.A full investigation was undertaken by Ms.MJS – during the course of the investigation the claimant admitted that he signed the documentation indicating he had conducted the quality checks but had in fact forgotten to complete the checks. The claimant advised that he had too many tasks to complete between 7.30am. and 8.00a.m. – the batch that had allegedly been checked were deficient and it was submitted that its release on to the market place would have created significant issues for the respondent.

The respondent set out a chronology of the ensuing disciplinary procedure - it was submitted that the claimant accepted the facts of the situation but contended that he had been very busy and had been distracted. The claimant acknowledged that he had received training on the checking procedure and data integrity and was aware that a product recall could potentially have arisen. The claimant’s Team Leader when questioned denied that the claimant had sought help on the night in question. On the 15th. March the claimant was dismissed with immediate effect – it was submitted that the respondent had lost all confidence and trust in the claimant’s ability to complete his assigned duties and that his actions amounted to gross misconduct. The claimant appealed the decision to dismiss - the Appeals Officer Mr. M concluded that the claimant had accepted he was fully trained in and conversant with all procedures, that he had prioritised production over quality and this was entirely unacceptable. Mr. M found on the balance of probabilities that he did not accept that the claimant had asked for help on the night in question. It was submitted that the claimant’s check failures placed into question the system integrity and viability of the plant.

It was submitted that the claimant’s contract specifically documents that the disregard of any of the Company’s GMP procedures will render employees liable to disciplinary action up to and including dismissal. The claimant was given the right to a fair hearing, a right to representation and the right of appeal. The company had complied with their own procedures and the principals of natural justice. It was contended that the company’s license to manufacture products could be jeopardised through failure to adhere to GMP standards.

The end of line check signed off on by the claimant was one of the most critical checks to take place. It was submitted that his was not just mere inadequate performance but an act of gross negligence by the claimant and the respondent was entitled to interpret this as gross misconduct. It was submitted that the employer’s response in the circumstances was reasonable and proportionate.

It was submitted that all wages had been paid up to the date of dismissal and that there was no entitlement to notice as the dismissal was for gross misconduct.

The operations manager Mr.SB gave evidence of his conduct of the disciplinary process commencing with a meeting on the 1stMarch 2017.He asserted that he sought a plausible explanation for the claimant’s actions, engaged with the Team Leader who denied the claimant asked for help and considered the claimant and the team leaders responses. He took account of the fact that 200 shipper labels were predone at the start of the run with 54 more required to be done. He insisted that the claimant was assigned to a pharmaceutical environment where trust was crucial and you don’t sign off on having checked when you didn’t. If the claimant needed help he could have stopped and asked for it. It had been emphasised to the claimant at briefing meetings that you never sacrifice quality checks. He said he felt that he had no other decision to take other than dismissal when taking the interests of patients into account, the highly regulated operating environment and the potential reputational damage to the company arising from the claimant’s failure to do the quality check.

Mr. B stated that he had received a recommendation from Ms. MJS who had conducted the initial investigation – he asserted that her brief was to conduct a fact-finding mission. He was advised under cross examination that she had said in evidence that she did not make any recommendation. He was questioned on why he had not approached Mr. G about the dispute between the claimant and his Team Leader in circumstances where there was a clear conflict of evidence and it was suggested by the claimant’s representative that this constituted a significant flaw in the procedure adopted by him. It was advanced that the claimant should have been allowed to challenge the evidence of his Team Leader if the provisions of SI 146/2000 were to apply. Mr. B asserted that he considered the entirety of the evidence and was very clear that the claimant’s actions constituted gross misconduct. He took into account that the claimant had signed off on conducting a check when he had not done so, the claimant’s failure to flag this to anybody and the fact that 80% of the labels were already done.

In her direct evidence the claimant’s Team Leader was adamant that the claimant had not asked for additional assistance while the claimant’s representative asserted that he asked for help and this could be corroborated by Mr. G. The Team Leader acknowledged that she checked the operators every half hour or so.

The Appeals Officer gave evidence of his conduct of the appeal and asserted that he approached the process with an open mind, that he revisited a number of issues and examined points of clarity – he ultimately determined that the claimant had prioritised production over quality   and stated that no mitigation had been put forward to support the upholding of the appeal. He stated that he was not reinvestigating the dismissal and believed the conclusions of Mr. B were reasonable. He asserted that he considered alternative sanctions but decided that dismissal was appropriate in light of the significance f the data integrity breach – he submitted copies of the company’s training manuals and data integrity documentation into evidence. He was satisfied with the level of training the claimant was given and concluded that he was well aware of the company’s requirements in relation to data integrity. He had noted the grounds of appeal submitted by the claimant relation to his personal circumstances - he stated that the claimant did not pursue it at the appeal hearing so he did not push it.

In summing up the respondent’s representative submitted that the max loss incurred by the claimant was 6 months. The provisions of UD 992/2014 were invoked in support of their assertions that the claimant did not provide convincing evidence of his efforts to mitigate his loss. The claimant had been afforded fair procedures, natural justice and a right of appeal. He had been given training on data integrity, accepted that quality takes precedence over production and should have put his hand up. He was guilty of gross misconduct and a significant breach of trust. This went to the root of the contract of employment and accordingly it was argued that the dismissal was fair.