ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00008286

Parties:

Complaint(s):

Date of Adjudication Hearing: 19/01/2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1946 – 2015 following the referral of the dispute(s) to me by the Director General, I inquired into the dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute(s).

Background:

The Complainant has 21 years’ service with the Respondent. The Complainant commenced his employment with the Respondent on 11 September 1996. He is employed as a Production Operator. The Complainant has a previous warning on his employee file which was a Stage 3 First Written Warning. An issue occurred on 24 November 2016 which resulted in the Complainant being invited to attend a Disciplinary Investigation Meeting on 16 December 2016. The Complaint’s Stage 3 First Written Warning was still live on his employee file at this time. During the investigation process, there were a number of witnesses interviewed. On 20 December 2016, the Complainant was issued with a Stage 4 Final Written Warning. On 22 December 2016 the Complainant appealed the Respondent’s decision to issue him with the Stage 4 Final Written Warning. The Appeal Outcome meeting was held on 2 February 2016 which resulted in the sanction being upheld. The Complainant made a second appeal on 3 March 2016. The Outcome of the second appeal was issued on 10 March 2016 which again resulted in the sanction being upheld.

The Complaints Stage 4 Final Written Warning was due to expire on 20 December 2017 and so it had expired by the time of the hearing. No warning exist on his file at this time.

Summary of Complainant’s Case:

Following a disciplinary investigation, the Complainant received a stage 4 Final Written Warning from the Respondent. Accordingly, the Complainant appealed the sanction imposed upon him as there was undue delay by the Respondent in the progress of the disciplinary process along with the fact the warning was without objective justification, unreasonable and unfair.

The disciplinary process was inconsistent as set out pertaining to a specific task. The details of the complaint were not put in writing by the Respondent as a result the Complainant is stating the complaint was null and void and there was no objective justification in issuing this complaint.

The Complainant is contending he done nothing wrong therefore the warning needs to be expunged and rescinded. The Complainant stated that he is a very diligent and hard working. In mitigation he put forward to the Respondent his record of good service for which the Respondent failed to recognise.

The time that had elapsed between the date of the incident of the warning was 19 days which is contravention of the Respondent’s disciplinary procedures. The Complainant states that there are inconsistencies on the part of the Respondent concerning line clearance failures and quality incidents.

The Respondent argues the prime aim of the disciplinary procedure is to assist individuals whose competence or conduct falls below the Respondent’s requirements to achieve the necessary improvement. To coincide with same the Complainant argues there was no issue with his competence. In contrast, the Complainant argues that he has an exemplary record with the Respondent and therefore a final stage 4 written warning needs to be expunged and rescinded with immediate effect.

The respondent did not at any stage put the dispute matter in writing to the Complainant and so as a result they denied the Complainant due process in affording him the right of reply. On 24 November 2016 the Complainant received a stage warning 4 for a line clearance failure which was escalated to a final warning stage 4 without objective justification.

The Complainant argued that line clearance failures are common enough in the production environment as they were 40 or so in 2016 and a similar number in 2017. The Complainant was involved in one failure for which he received a stage 4 final written warning. The Stage 4 warning was rejected by SO, UR1 and UR2 however the Respondent persisted with their unjust penalty and therefore the Complainant served 12 months on stage 4 final written warning and is therefore seeking this warning completely rescinded and expunged.

The Complainant has argued that the imposition of the warning was unjust and unfair and was without objective justification.

Summary of Respondent’s Case:

The Complainant has been employed by the Respondent for 21 years. The Complainant has spent the majority of this time working in the same department within the Respondent company. The Complainant is assigned to a specific area/unit. The role also involves the preparation of cleaning down of the area between products. Pharmaceutical production is a highly regulated environment. The Complainant has received regular training on Good Manufacturing Practice.

On 24 November 2016 an incident took place in the company which was reported by the QA Specialist (QA1). QA1 had conducted a procedure which was deemed a critical line clearance failure.

The area is cleaned by Production Operators and verified by Quality Assurance. A critical incident denotes an incident or fail which poses a risk of cross-contamination or which may impact on product quality. Should product of inferior quality leave the plant it may lead to a product recall or ultimately risk to the lives of patients. Any and all critical line clearance failures are treated very seriously and investigated at length. In some cases, the root cause of the failures may be down to Human Error. When the individual involved has on-going Quality concerns this is a serious concern.

The lid and chute were re-cleaned and the room was line cleared. This was followed by a detailed route cause investigation to prevent such an issue occurring again.

On 5 December 2016 the Business Unit Manager (BUM) and the Production Supervisor (PS) met with the Complainant that afternoon and advised him that he was being given 24 hours’ notice of a disciplinary investigation meeting in relation to a critical line clearance failure on the glove box in AOB 2 weeks previously. The Complainant was due to be off work for the four days and would be returning on 12 December 2016 and was to confirm the date for the hearing. He was further advised of the right to representation at that meeting.

The disciplinary meeting took place on 13 December 2016 and the disciplinary investigation meeting was chaired by BUM. In attendance also was PS, the Respondents HR Business Partner (HRBP), the Claimant, and two union representatives (UR1 & UR2).

At the disciplinary investigation meeting the facts of what had occurred were outlined to the Complainant and his representatives. The Complainant was given an opportunity to respond. A written statement of the complaints response was presented to the company and read through by UR1. As the Complainant had suggested that the glove box was not as he had left it, the Complainant was asked who else he thought might have been in contact with the glove box which he was responsible for cleaning and he could not offer any suggestions.

It was clarified that it was an investigation meeting and the quality investigation process was also still in progress. The reason a disciplinary investigation meeting was being called prior to completion of the quality investigation was that, as per our disciplinary procedure, representation is offered and notice given of meetings with an employee when it is apparent that the incident may result in disciplinary action. This investigation was not complete. This meeting was for the Complainant to state his case as part of the investigation. The outcome of the quality investigation would also be taken into account as part of the disciplinary investigation.

It was explained that the reason that this was being treated as a disciplinary investigation was that the Complainant was already on a Stage 3 disciplinary warning which had been issued to him on 29 July 2016 for his involvement in a previous serious quality incident. It was not company practice to treat all deviations as disciplinary issues. This was only the case when a pattern of incidents warranted this type of action.

As a result of the Complainant eluding to the involvement of others. A number of other meetings also took place, as part of this disciplinary investigation, with all those who were working in the area at the time that this incident occurred. These were with the Production Operators (PO1 & PO2), QA1, and the Production Engineering Technician (PET).

PO1 reported that he had been in the monitor’s office when the issue had been reported to the Supervisor by the Complainant. PO1 stated that had not gone near the glove box.

PO2 did not recall working on the glove box. As he was not assigned to the job he would have had no reason to go near the lid.

QA1 confirmed that there was a substantial amount of water visible. The lid was on when she arrived and the hose was on the hook.

PET confirmed that he had not been working on that area.

The Complainant had suggested a number of other reasons that water could have accumulated. Tests were carried out to see if this was possible but no water accumulated during any of these tests.

Having considered all of the evidence, the Complainant was advised on 20 December 2016 that he was being issued with a Stage 4 Final Written Warning (FWW) in line with company disciplinary procedures. The reason for the FWW was that on 24 November 2016, the Claimant had verified room 679 including the Glovebox as being clean and dry and ready for line clearance. While line clearing the Glovebox water was discovered on the compensator chute lid and on the compensator itself by QA1. It was the Complainant’s responsibility to ensure that the Glovebox was clean and dry prior to line clearance. This has resulted in a Critical Line Clearance Failure.

The Complainant had been placed on a Stage 3 First Written Warning on the 29 July 2016 which was live.

Since the stage 3 warning had been issued, the Complainant had been undergoing a re-training program in the production unit, Sub Unit 1.As part of the retraining that had taken place, the Complainant had signed his Learning Unit on 2 November 2016 to document full competence in the task of verifying the area and had completed the task three times under observation to show that he was able to complete the task. However, on completing the verification of the area on 24 November 2016, a Critical Line Clearance Failure occurred.

The Complainant appealed the company decision on the 22 December 2016. The appeal hearing was conducted in line with company procedures and Stage 1 commenced. The appeal was conducted by the Director of Engineering (DOE) and in attendance was the OD Manager (ODM) the Complainant, a SIPTU Official (SO), UR1 and UR2.

The outcome of the appeal was issued on 2 February 2017. The company advised that having taking into account the Complainants grounds for appeal and the company responses they were upholding the decision that he be issued with a Stage 4 – Final Written Warning.

In line with company procedures, the claimant appealed this decision through SO.

The second appeal hearing took place on 3 March 2017 and it was conducted by the Vice President and General Manager (VPGM), Interim corporate Head of HR (ICHHR), the Complainant, UR1 and UR2.

The outcome of the second appeal was issued on 10 March 2017. The decision was that the Stage 4 Final Written Warning issued on 21 December 2016 was upheld.

On 15 March 2017, the Respondent was advised by SO1 that they were progressing the appeal to the WRC.

The Complainant is a fully trained Production Operator within the company with over 20 years’ experience in the position.

The Complainant submitted his claim to the Workplace Relations Commission on 27 April 2017 having received a Stage 4 Final Written Warning on the 20 December 2016. The Complainants warning is due to expire on the 20 December 2017.

The Complainant was issued with a Final Written Warning as on 29 July 2016 he was issued with a Stage 3 First Written Warning. This First Written Warning was to remain on his file for a period of six months. Since that warning had been issued, the Complainant had been undergoing a re-training program in the production unit. As part of the retraining that had taken place, the Complainant had signed his Learning Unit on 2 November 2016 to document full competence in the task of verifying the Glovebox and had completed the task three times under observation to show that he was able to complete the task.

The Complainant was provided with the full rigours of natural justice throughout the disciplinary process. In relation to the procedures used to implement the sanction, the Complainant was afforded all benefits of fair procedure, in line with the company’s established policy, the LRC Code of Practice on Grievance and Disciplinary Procedures and the universal principles of natural justice. The Complainant was informed in advance as to the nature of the complaint against him. He was afforded the right to representation, which he exercised, during all procedures. He was further provided with a fair and impartial hearing, at which he was given an opportunity to respond to the allegations against him. All the evidence in its entirety was considered, including the claimant’s representations, before any decision was made or action taken. The Complainant was afforded the right to appeal on two occasions, which he exercised. In those appeals, the Complainant’s specific objections were addressed. The Complainant was also clearly informed as to the outcome of any decision at each stage of the process. In light of all of the above, the company believes it to be clear that the sanction awarded to the Complainant was procedurally fair in all respects.

The type of behaviour which the Complainant demonstrated constituted misconduct. The behaviour demonstrated by the Complainant through his actions could not be tolerated and so there was no option but to issue the Complainant with a Stage 4 final written warning in light of the fact that he was on a stage 3 First Written Warning that was active.

Findings and Conclusions:

Section 13 (1) and (2) of Industrial Relations Act, 1990 states the below.

13.—(1) The Minister may from time to time appoint a person who shall be known as and is in this Act referred to as a rights commissioner to carry out the functions assigned to him by this section.

(2) Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner.

(3) (a) Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred to him under subsection (2) of this section and shall, unless before doing so the dispute is settled—

(i) make a recommendation to the parties to the dispute setting forth his opinion on the merits of the dispute, and

(ii) notify the Court of the recommendation.

(b) A rights commissioner shall not investigate a trade dispute—

(i) if the Court has made a recommendation in relation to the dispute, or

(ii) if a party to the dispute notifies the commissioner in writing that he objects to the dispute being investigated by a rights commissioner.

Therefore I have considered the matter and issue the following recommendation.

The Complainant does have an obligation to exhaust the internal process before taking the matter to an external source.  The Labour Court in Rec INT 1014 stated, “The Court is not prepared to insert itself into the procedural process in a situation where the dispute resolution procedures have been bypassed”. The Complainant has fulfilled that obligation and therefore the Complainant is entitled to have the claim hereunder the Industrial Relations Acts heard and a recommendation issued. 

The Complainant had a Stage 3 First Written Warning on his employee file when the subsequent incident occurred. This matter and warning was treated leniently due to the Complainant’s personal mitigating circumstances at the time. He was subsequently retrained for a significant period of time at a significant cost to the company. Subsequently a breach of procedure occurred on 24 November 2016 and the company investigated the same in line with the rules of natural justice. The process of investigating disciplinaries and subsequently issuing a sanction and appeal due to the nature is a complex one and one that does not need to be a council of perfection as stated by Barrett J in Boyle v An Post [2015] IEHC 589 “fairness is ever required, perfect is unattainable”. However the procedure must be done in line with the rules of natural justice as occurred in this instance. I also acknowledge the warning has since expired and will not form part of the Complainants file going forward.

Decision:

Section 13 (1) and (2) of the Industrial Relations Acts, 1946 – 2015 requires that I make a recommendation in relation to the dispute.

I therefore recommend that no change is made to the Complainant’s employee file and the procedure and process followed to reach the Stage 4 Final Written Warning met the required standard of the rules of natural justice and fair procedures.

Dated:   2nd August 2018

Workplace Relations Commission Adjudication Officer: Caroline McEnery