ADJ-00011965

Complainant

Respondent

Anonymised Parties

A Production Worker

A Pharmaceutical Company

Representatives

 IBEC

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-00015847-001

16/Nov/2017

The complainant began his employment with the respondent on June 29th 2015 on a fixed term contract. Following a succession of renewals the contract finally terminated on July 6th, 2017.

The complainant’s employment was terminated solely for performance reasons.

His first fixed term contract ran from June 29th, 2015 to September 22nd 2015.

At that point he was put on notice that his performance was inadequate and told he would not be retained on the Production Operator Panel. However, following trade union representations on his behalf this decision was reversed and he was placed on the panel.

He returned to work on October 13th, also on a fixed term contract., and this was extended on a number of subsequent occasions.

The complainant underwent a Performance Review in November 2016, at which he was specifically advised not to undertake tasks for which he had not been trained. His performance was rated ‘Poor’ under a number of headings. He was rated overall between “Average’ and ‘Unsatisfactory’

His next review was in March 2017 where again his performance was rated poor, including under the same headings as the previous November. As a consequence, he was issued with a ‘formal verbal warning’ for failure to follow instructions, not retaining training and his attitude to a named supervisor.

He was told he would remain on his temporary contract on April 12th and advised that he would not be made permanent if there was not a ‘significant improvement’. He provided written acknowledgement of this letter.

At the next Performance Review on June 23rd, 2017 the situation had not improved and a number of non-compliance and performance issues were identified, (details of which were provided). He was represented by his union at the meeting.

On July 3rd, a meeting was arranged with the complainant and his union to allow him to respond to the performance review.

Subsequently he was advised that his contract was not being renewed.

The complainant was on a warning by the time of the third performance review. The continuing breaches related to health and safety, protective clothing and were serious.

There has been no dismissal within the meaning of the Unfair Dismissals Act.

In respect of the disciplinary process against the complainant the management was selective and there were other operators who broke Health and Safety or Good Manufacturing Practise (GMP) rules but the supervisor did nothing about it.

The complainant says that the different treatment meted out to those others was a result of family connections.

For example, there was a case where an operator without any qualification in pharmaceutical manufacturing, or any experience in pharma industry made an error that resulted in a deviation on big batch and yet that operator got a good review in GMP manufacturing practice.

He says he was bullied by the Team Leader and nobody took action.

In cases under the Unfair Dismissal Act the onus falls on the respondent to justify the dismissal both in terms of procedural fairness and the proportionality of its actions and the sanctions.

The complainant was in early difficulty with his performance; after only three months his contract was terminated in September 2015.

Following representations by his trade union, he was reinstated and started a fresh contract on October 13th which was to run to November 27th, 2016.

This was reviewed on November 28th, 2016, and a further contract was issued to run until July 1st 2016, and was reviewed again the following March 20th but which was accompanied by a warning related to his performance.

Another contract was issued on (or at least signed by the complainant) on July 6th, and yet another on December 16th.

A final contract, signed on April 27th was issued to run until July 28th, 2017.

In general, the respondent operated good levels of procedural fairness, with regular performance reviews, full communication with the complainant and he had the benefit of trade union representation.

Looking more closely at the events in the course of the final episode there was a performance review on June 26th and the complainant was invited to a further meeting on July 3rd and ‘given an opportunity to respond to the performance review….in the context of his previous final warning from HR if his performance did not improve significantly…’

In fact, the correspondence relied on here is not quite ‘a final warning’ within the technical meaning that it is used in disciplinary processes. Nonetheless, he was clearly told that his ‘transfer to permanent status will depend on a significant improvement in your performance between now and the end of June’.

Then, following the meeting of July 3rd, the respondent wrote to the complainant to advise that the company had concluded that his ‘contract should not be renewed’.

I find that the complainant’s employment terminated as a result of the expiry of his fixed term contract and he was not unfairly dismissed.

In addition, there were substantial grounds for doing so.

While the respondent’s intentions, and its actions may have been honourable in seeking to bring the complainant to a standard where he would have been entitled to a contract of indefinite duration, the operation of what was effectively a probationary period lasting over two years by means of successive fixed term contracts cannot be regarded as desirable.

That said it gave the complainant every opportunity to improve his performance and behaviour. 

He failed to take advantage of the opportunity to do so.

For the reasons set out above I do not uphold complaint CA-00015847-001 and it is dismissed.

Fixed term contracts, dismissal.