Complainant

Respondent

Anonymised Parties

Operator

Manufacturing Plant

Representatives

BarnabaDordaSIPTU

Jan HaydenIBEC

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-00029318-001

26/06/2019

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

CA-00029318-002

26/06/2019

This case relates to a claim for unfair dismissal based on the company failing to apply fair procedures and applying a disproportionate sanction of dismissal regarding the alleged wrong doing.

On or about 9^th/10th July 2018 the claimant was working when he or a colleague identified a mistake on the labelling on the Bill of Materials Document (BOM). The claimant told his colleague that he would fix it. He produced a replica label and superimposed this on top of the original label that had been identified as containing errors. The BOM document is signed off by the operator and forms part of the required traceability regarding the manufacturer’s product. On or about late October the respondent completed an audit based on a customer complaint which covered his shift back in July 2018. It would appear that due to a customer complaint(s) management had commenced an audit or review of paperwork (BOMs’) and during this process the BOM that he had thought he rectified was identified as:

“while investigating a labelling related customer complaint prior to a customer audit, an issue was identified where the batch details were cut away from one order information label and then superimposed over the batch details on another order information label.”

 This occurred because the label that the claimant thought he corrected in fact contained errors. The copied label was so good; management thought a serious system’s and traceability failure had occurred. They eventually discovered that the label in fact was not produced by the company’s system, rather it was a copy made by the claimant.

Around the middle of November 2018, a management investigation began under the company/union disciplinary process (arising from the initial management review of the label issue) and concluded that:

“complainant cut out bulk batch no from one label and superimposed it on another label, as well as superimposing a new label over the label he cut the batch no. from. He also placed a laminate over the amended label. He did not inform anyone about this change and did not follow up to get new BOM from (charge hand). Our understanding is that (complainant) had no malicious intent in this regard, but it was very strange and potentially unsafe/damaging action.”

 At all times the complainant had fully co-operated with the investigation, was honest and open about what had occurred, there was no deceit or malevolent intention. The initial error was compounded because of the claimant attempting to produce a replica label. In making another mistake relating to the data on the label, unbeknown to himself he had compounded the problem.  Based on the management investigation a disciplinary hearing meeting took place on the 24^th January 2019 and on 7th February 2019 he was summarily dismissed.

The company dismissed him for interfering with and falsifying company records that also caused serious reputational damage to the company.

He never falsified any record, he thought he corrected an error and accepts that he made another error. He never falsified any document to deceive.

The claimant co-operated fully with the investigation, worked on the line, without any change to his job for several months after the issue had been identified and then in early February was summarily dismissed.

The dismissal is unfair as he was denied fair procedures and the wrong he was accused of ‘Falsifying and Interfering with company records and documents’-he never actually did. He made a genuine mistake, but he did not falsify any document or record. The company accept that there was no maliciousness in his action, there was no deceit. The disciplinary procedure was flawed. His work colleague whose mistake he believed he was correcting was not interviewed about what happened on the shift that the error had occurred on. While she was interviewed about the ‘falsifying’ of a record, she was not interviewed to corroborate the complainant’s account of what happened. Statements given and recorded as part of the investigation were heavily redacted. The BOM central to the investigation was withheld from him and only shown to him at company meetings, but never given to him. He only received unredacted documents after his appeal to challenge unfair dismissal had concluded-. The company disciplinary procedure was blindly referenced regarding the right to dismiss for falsifying company records; without ever considering if this was in fact the case. The misapplication and misclassification of a human error to one of falsification was contrived to fit the disciplinary procedure; the failure to apply fair procedures by not giving him full un-redacted statements of witness reports and the company finding; the company’s failure to complete a fair investigation of fact regarding what occurred on the shift and to detail his work colleagues account of what occurred makes the process flawed and fundamentally compromised.

The plant manager who made the decision to dismiss was involved in the decision to commence the management investigation as part of a disciplinary process-he should not have been involved in the disciplinary hearing and the decision to dismiss. The company is big enough to have separated out decision makers at each stage of the process to minimise bias or the risk of bias.

The sanction was excessive and the manner of his dismissal shocking. He could work for months after the incident became a concern for the company; yet was summarily dismissed without any notice.

The company is a large company and no alternatives to dismissal were adequately considered. The decision to dismiss was disproportionate.

The complainant referred to Connaught Gold v Connor Rafter UD 48/2004  having regard to the reasonable employer test and the band of reasonableness and where a decision to dismiss is made a corollary of that is that it is based on high level of proof.  Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 affirmed that “…state the complaint factually, clearly and fairly without any innuendo or hidden inference or conclusion”. In Higgins v Irish Rail Credit Union Ltd UD480/2006 the Tribunal referred to fair procedures requirement to ensure “transparency, clarity and clear structure”. Access to notes is endorsed in the High Court case Maher v. Irish Permanent (No.1)[1998] E.L.R. The proportionality test as detailed in Bank of Ireland v James Reilly [2015] 26 E.L.R 229 called for “An assessment and proportionality of the employer’s response must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee.”

The company received a complaint about its product. It commenced a review of the relevant product documentation. The product is supplied to medical device manufacturers. The batch in question could be used in 16 million hypodermic products. The BOM is a critical document and it records crucial data that is required to meet the highest regulatory standards to ensure traceability and contains commercial sensitive data and intellectual property regarding the product. It is signed by the operator as confirmation of the required checks and to confirm the validity of the data. When mistakes are made, they are clearly marked in pen, to ensure no ambiguity. What the complainant did; required a high level of skill and effort to replicate the original label. During the investigation it became clear that the complainant was interested in fine work of this nature and decided to improvise and depart from accepted practice to clearly mark the error in pen.  The falsification of the label fundamentally undermined the purpose of the BOM by creating a counterfeit that looked exactly like the original; however, it contained rogue data. The recording and integrity of documentation is central to the manufacturing plant’s control systems. It is not a secondary activity, it is as important as the quality of the product. The induction training emphasises the importance of the documentation and recording controls and is absolutely expected by our customers and regulators to be complied with. What the complainant did was to totally undermine that system and its ramifications were hugely significant

The actions of the complainant fundamentally breached the trust and confidence necessary and required in the employment contract. Trust and confidence are also a key component of the customers’ requirements, patients’ expectations and such an error undermine that trust in a most serious way.

The company carried out on balance a fair investigation. Nothing turned on what was redacted. The complainant was afforded natural justice, the right of representation and details of the allegations. The complainant admitted the wrong-without question nobody could be but utterly surprised and taken aback at what he did.

The complainant could work and not suspended; however, his work was carefully monitored. If the company had suspended him, it could have been accused of prejudging. The company was sensitive and thorough relating to the process. While it accepts it could improve the procedure regarding redactions, overall it was a fair process.

The tribunal in making its decisions must judge the reasonableness or otherwise of the dismissal against the standard of the reasonable employer. That test requires acceptance of a band of reasonableness and not what the tribunal would have done presented with the facts. Applying that test what the respondent did was reasonable.

The respondent cited Looney and Co. Ltd UD/1984 having regard to the reasonable employer test, Knox Hotel and Resort Ltd, UD 27/2004 as authorityrelating to the breach of trust and confidence and to justify summary dismissal for such a fundamental breach. Murray v Meath County Council UD 43/1978 was given as an example where no award of redress was made having regard to the claimant’s inappropriate action.

It is clear now, perhaps with the benefit of hindsight that producing a near perfect looking replica of the company’s flawed label to correct an error-undermined the plant’s quality and control systems in a fundamental way. If this became common practice it would clearly significantly weaken the necessary controls demanded when supplying materials to be used in medical products. When it was discovered by management it caused very significant concern and worry as it was inexplicable and negated the traceability of their product that could have been used in 16 million hypodermics. It is incontrovertible that the issue was very serious.

The sanction of dismissal was given based on ‘Falsifying’ the record or document as allowed for in the company handbook and disciplinary procedure. However, to ‘Falsify” carries a meaning of changing a document to deceive. The company accepts in its own evidence that no maliciousness whatsoever on the part of the complainant. It is hard to see how that allegation could be maintained, that an intentional falsification occurred.

On balance the company must show that the procedures they followed were fair. The degree of redaction, the absence of complete and thorough interviews relating to what the complainant alleges happened in contrast to interviews focused primarily on the alleged falsification of the label or record, redacting documents, failure to provide the complainant with a copy of the BOM, only providing un-redacted documents after the hearing of his appeal and the acceptance by the senior manager who heard the appeal; that the procedures to a degree were deficient, on balance leads me to conclude that fair procedures were compromised to a high degree.

The respondent didn’t adequately explain to what extent they looked at alternatives other than dismissal. It is also difficult to reconcile why it was necessary to summarily dismiss without notice having regard to the fact that the complainant had worked in the same role for months after the matter had been discovered.

However, I also must ask, did the complainant’s actions contribute to the chain of events that unfolded that would lead to his dismissal. It took great skill and effort to do what he did. His actions covered up the original errors but made more fundamental ones. The complainant was trained on the importance of the documentation system and indeed his signature on the BOM attests to the importance of that system. His actions were seriously negligent. What he did was without malice; however, what he did was compromising of the company’s record and documentation system. His actions contributed to his dismissal. While the complainant’s actions contributed to his dismissal; having regard to the flaws clearly identified in the procedures followed by the company, denying the complainant a fair hearing, I determine that the dismissal was Unfair. The sanction was also harsh and disproportionate, while a serious mistake was made by the complainant, no damage arose from it. His mistake was rectified.

The complainant hasn’t worked since his dismissal; stating that he has studied for ECDL to improve his employability; however, the fact of losing such a high paid job without a positive reference or good reason to leave such a good job, has negatively impacted his ability to find employment.

I don’t believe that re-instatement or re-engagement is an appropriate remedy in this case having regard to the serious judgement error of the complainant. There is a question relating to a breach of Trust and Confidence; however, the onus is on the employer, to also show that they looked at alternatives other than dismissal, as the trust and confidence, relates to the complainant’s on-going Production Operator involvement in product labelling and the validation of production processes, in contrast to possibly other vacancies or roles without such duties. On balance I believe that there is an issue of Trust and Confidence only in so far as it is related to labelling.

The complainant also has a duty to mitigate his loss and while attending a training programme, it is also apparent that on balance, the complainant should have mitigated his loss more that he has. However, summarily dismissing him seriously undermines his chances of gaining a suitable role.

The company dismissed the complainant for falsifying a document; however, what happened was because of human error. While a serious breach of company procedures, no damage arose from that mistake. The complainant’s right to fair procedures was fundamentally compromised. The actions of the company to summarily dismiss having regard to all the circumstances was harsh and disproportionate. The complainant will find it extremely difficult to obtain a job as well paid. His weekly pay was €1120, and it is highly likely that he will continue to be at a loss when he finds a suitable role. At 7(3) of the Act, financial loss is defined:

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation

Section 7(2)(b) states that in determining the amount of compensation payable regard shall be had to–

(a) the extent (if any) to which the financial loss referred to that in subsection was attributable to an act, omission or conduct by or on behalf of the employer

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee.

 The summary dismissal makes it more difficult for the complainant to obtain another job and contributes to a longer period of financial loss. The serious omission by the employee did contribute to his dismissal. I have taken both factors into account in determining an award of compensation.

Section 7(1) (c) provides for financial loss attributable to the dismissal not exceeding 104 weeks in remuneration as is just and equitable in all the circumstances. Exclusive of any statutory entitlements, I determine that the award of compensation is €60,000.

Consistent with my finding of Unfair Dismissal the claimant is also entitled to his statutory notice in addition to the compensation awarded under the Unfair Dismissal Act 1977 as amended. His employment commenced on 29^th January 2007 and was terminated on 7^th February 2019 a period more than 10 years and less than 15 years.  Section 12 of the Minimum Notice and Terms of Employment Act 1973 provides where a contravention occurs, that direction to compensate for the loss arising from the contravention can me made:

12. (1) A decision of an adjudication officer under section 41 of the Workplace

Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5

may, where the adjudication officer finds that that section was contravened by the

employer in relation to the employee who presented the complaint, include a direction

that the employer concerned pay to the employee compensation for any loss sustained

by the employee by reason of the contravention

 As I have determined that the complainant should not have been summarily dismissed arising out of the allegation of gross misconduct, in line with Section 4 of the 1973 Act based on his service the complainant is entitled to 6 weeks’ notice. Based on the contravention of his statutory notice period, I direct the respondent to pay 6 weeks salary as compensation to the employee.

Gross Misconduct; Summary Dismissal; Fair Procedure; Minimum Notice; Proportionality