Complainant

Respondent

Anonymised Parties

General Operative

Dairy Processing Company

Representatives

Andrea Cleere SIPTU

Shane O'Gorman IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00019704-001

11/06/2018

The dispute concerns a penalty of written warning that was imposed on the Complainant and the withdrawal of an offer to transfer him to a different part of the plant.

The Complainant is a General Operative, employed by the Respondent since 1st January 2011.           In November 2017 there were a number of operational issues occurring with the machinery in the part of the plant in which he was on duty, culminating in a fault in the separator the Complainant was working on. The separator had cut off, spraying milk all over the area. Two separators had to be stopped and it is acknowledged that there was a knock on affect for product in other parts of the factory. It should be noted that a new system for testing fats has since been introduced.     It is submitted that the complainant carried out all the relevant checks prior to the incident and all returned normal readings and within limits.                                                                                                                                                  One month later, on 14th December 2017, the Complainant was handed a letter to attend a disciplinary hearing with the Department Manager. The letter included a copy of a report regarding an investigation which had been carried out by a manager in the company regarding the events of 14th November 2017.   The Complainant was shocked as he had not been requested to participate in the investigation process, he was not interviewed nor had he been asked to submit a statement regarding the matter.   It is submitted that in the days preceding 14th November 2017 there were a number of operational issues that were ongoing with the particular machinery.   It is submitted that management were aware of the processing difficulties and had replaced some equipment to remedy the situation. The testing process did not recognise the problem and an additional testing process has been implemented since.    It is submitted that since 14th November 2017 this issue has occurred again on more than one occasion but no disciplinary action was taken regarding same.   It is argued that the company breached its own disciplinary policy in not applying the policy and procedure in a consistent and fair manner in this case.   The Investigating Manager carried out the investigation without interviewing any of the workers who were on shift on 14th November 2017. A disciplinary meeting took place on 9th February 2018 and the outcome was a written warning issued on 29th March 2018. It should be noted that the expert report stated that it would be very difficult to determine the exact root cause and that information would be based on speculation. The disciplinary sanction was appealed but the appeal did not succeed. In addition to being issued with a written warning, the Complainant had an offer of a new role withdrawn due to the disciplinary sanction. It is argued that this effectively means the Complainant was hit with a double punishment and has been denied the opportunity to further his development.

The identification of the abnormality in one of the manufacturing processes manifested itself in a high fat percentage of 0.22%, whereas standard fat percentage is ordinarily at 0.07% median.             During an investigation into the malfunction of one of the machines, samples were independently tested and found to have fat percentages well above the acceptable percentiles.   The log sheets pertaining to the process recorded that all checks/products were normal recorded by the Complainant as 0.07%.   The Investigating Manager held that with the technical and expert evidence available linked with the balance of probabilities, the log sheets could have been incorrectly recorded. The Complainant was the operator for the period in question and he held responsibility for recording the particulars. He asserts that he carried out all required checks and found no problem. The Investigating Manager concluded that the Complainant be furnished with a copy of his report with the supporting documentation. Additionally he deemed the situation grave enough to warrant the Complainant to be invited to a disciplinary meeting to account in detail for his alleged inaccurate and/or false recording of information. A disciplinary meeting was held with the Complainant and his union representative.   At the meeting, the Complainant put forward various explanations for the fault which occurred, along with the assertion that his Manager had given instructions that day not to take samples due to an ongoing UL project. The decision of the disciplinary hearing was that the Complainant was to be given a written warning. The Complainant appealed giving the grounds :

1.       He was being held liable for defective equipment.

2.       He did not agree with the expert evidence supplied.

3.       His Manager had given instructions to operators not to test fat levels.

4.       No operators have ever been held accountable for the same incident in the past.

The Appeal outcome was that there was no evidence to establish that the revolutions from the day of the incident were in fact deviating to cause any form of impact separation.   Nor did it make sense that the results recorded over the duration would not have indicated a failure of the separator. The sanction was upheld and the appeal was dismissed.

It is argued that it is well established case law that the role of the Adjudicator is to consider whether the actions of the respondent were those of a reasonable employer (Lifeguard and Swimming Instructor v A Leisure Centre ADJ-00003999, Looney & Co. Ltd v Looney UD 843/1984).                              The respondent’s action in taking the decision to issue the Complainant with a written warning was in accordance with what a “reasonable employer” would have done in the circumstances. The facts presented before the Disciplinary Officer and the Appeals Officer were that the Complainant had deliberately and falsely recorded data in accordance with laid down and well established procedures and had failed to be forthcoming with that act during all stages of the disciplinary procedures.

In parallel with the disciplinary process a recruitment process was taking place for the role of Production Operator in another part of the plant. The role was not an advancement in grade but a move to a different operating area. The Hiring Manager for this vacancy indicated to the Complainant following the initial interview process that he had performed well at interview. There was no formal offer. The significant negative consequences of the Complainant’s actions, the estimated loss of €65,000 worth to company product and operations cannot be underestimated and in light of this, and the Complainant’s unattached sense of responsibility meant that the sanction of a written warning was justified.    

I note that the investigation into the incident took place initially with no consultation or interviews with the Complainant or his colleagues. I note there was at minimum a certain ambiguity about the instruction not to take samples and the fact then that the Complainant’s evidence was that he decided to take same after consultation with colleagues. I find that this along with the fact that the Complainant was only then presented with the outcome of the investigation one month later is a serious flaw in the process.       Whether the conclusion the company came to that the Complainant had recorded false information was a correct conclusion is not one hundred percent clear in this case. I note a large amount of technical evidence. However, I also note one of the reports concluded that there could have been many factors involved in the malfunction and the evidence given at the hearing was that there could be technical reasons why normal readings would occur at given times.     I conclude that the Complainant has been penalised on foot of an investigation into which neither he nor his close work colleagues had no initial input.   He was then further penalised by losing the opportunity to work in a part of the plant when he had been informally told he had a good chance of so doing. I recommend, for the reasons cited above, that the penalty be extinguished from the Complainant’s record and that he be allowed go forward for future opportunities without blemish on his record.