Complainant

Respondent

Anonymised Parties

A Process Operator

A Pharmaceutical Company

Representatives

Deirdre Canty SIPTU

Sophie Crosbie 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-00027837-001

17/04/2019

The Worker is a process operator in a pharmaceutical company and she has been employed on a series of full-time fixed term contracts. She applied for a permanent position that was advertised. During the period of assessment for a position, she committed a breach of Good Manufacturing Practice (GMP) procedure, for which she received a verbal warning. Her dispute is that she was unfairly punished twice, in that she received a verbal warning, as well as being marked down in the job application process. She is seeking a permanent position. She utilised the internal grievance procedure in full.

The Employer’s position is that the disciplinary procedure and the job selection process are two distinct strands. The Employer submits that the job selection process was transparent and fair and that any marking down against the Worker was done so in a reasonable manner based on a patent transgression of strict manufacturing procedures.    

The Worker has been employed with the Employer since 2007 on a series of Fixed Term Contracts, however the employment was not continuous throughout this period. In 2018 the Worker applied for one of 7 permanent positions open to her. The Worker was the most senior applicant amongst those who applied.

The Worker was interviewed for the post on 7th August 2018. On 28th September 2018, the Worker crossed the entry line of an area without the proper attire. The Worker admitted and apologised immediately for this, but the Employer insisted on investigating the matter. The investigation report recommended, on 25th October 2018, that the matter should be dealt with under the company disciplinary policy. The outcome resulted in the Worker being issued with a verbal warning for breach of GMP.

Following this, the permanent posts were confirmed on 14th November 2018. The Worker was not successful in securing one of the 7 positions available. She came 8th in the selection process. The Worker felt very aggrieved with this outcome and she utilised the grievance procedure. The Employer conceded that the breach of GMP by the Worker was a factor in her not being successfully selected for the post.

The Worker contends that the receipt of a verbal warning and the marking down in the job application for the same incident is a double penalty that ultimately led to her being rejected for a permanent post, having been a temporary worker for the Company over a long period. The Worker is seeking a permanent post with immediate effect, with the contract backdated to November 14th, 2018.

The Employer is a pharmaceutical manufacturing company with a strict GMP regime as a function of its licencing arrangements for the manufacture of medicinal products. There are strict controls in place about moving between controlled and non-controlled work areas. Any breaches and non -conformances are reported and dealt with in line with strict quality procedures.

The Worker is on her third fixed term contract since commencing employment on March 29th, 2016. The Employer has strict headcount quotas but received approval from headquarters for 7 permanent vacancies in line with changes in its transition from a sterile business to a high-tech biologics site.

The Worker was successful at interview stage in that 3 candidates scored higher than her and 3 candidates scored lower. The on-the-job assessment element of the selection process for all the candidates’ scores was conducted on October 3, 2018.

Prior to the final scoring, the Worker was observed on the 28th of September entering an unclassified area to collect samples without the correct clothing or footwear. She was observed by a colleague who reported the matter. The worker had admitted to the breach before the assessment on October 3. The GMP incident affected her marks for safety, judgement/common sense and work quality. The scoring team felt unable to mark her higher because of this incident. Following a full investigation, she subsequently also received a verbal warning for this incident, which has since expired.

The Company/Union Agreement on Promotions Vacancies states the following:

·        The policy of the Company is to fill openings with the most qualified persons available.

·        It will be the absolute discretion of the Management which as such have the opportunity to choose from any source and will be based on the Company’s assessment of the ability and suitability of candidates.

The Employer submits, in conclusion, that the Worker had 2.5 years’ service at the time of the events and had no legal entitlement to an ongoing contract. The Employer viewed the GMP breach as serious and had no option but to mark her 1 out of 3 in the areas of judgment/common sense, safety compliance and work quality. The Worker continues to be eligible to apply for permanent positions as they arise.

Considering the case as outlined above, the Employer contends that the claim of the Worker for a permanent post should be dismissed.

It is not my role to decide who is the most meritorious candidate in this promotional competition. However, in this instance I must firstly decide if the disaffected worker was treated unfairly, as she claims, or whether the selection process was carried out in a fair and consistent manner, as asserted by the employer.

Secondly, I must determine if the low marking of the worker because of breaching GMP is a double punishment when she was also the recipient of a verbal warning for the same incident.

In deciding as to whether an individual was treated fairly in a selection process, it is essential that records be kept of the decision-making process so that it may be seen to be open and transparent to the individual involved, relative to how other people were treated. The Employer exhibited suitably cogent material to show the marks the candidates had achieved in the process. No evidence was given that another candidate was unfairly favoured over the Worker, other than to suggest that the GMP incident should not have been used against her. In any competition where, on-the-job work assessment is used for selection purposes, it is generally expected that it can never be a frivolous rubber-stamping exercise, but instead is a process that can be objectively scrutinised and assesses as being as fair as possible to all candidates. When the worker breached the GMP in plain view of others, then there is no strong argument against such an undisputed fact being recorded in an on the job assessment. To do otherwise, in essence ignoring such behaviour, devalues the process and potentially leaves other candidates disputing the integrity of the process. In conclusion on this point, I find that that it was reasonable to acknowledge such behaviour and mark it appropriately in the assessment.

The next issue to determine is whether such marking down constituted a double punishment where the Worker concerned also received a verbal warning for the GMP breach. The job assessment meeting took place on October 3, 2018 whereas the Worker received the verbal warning on October 30th, 2018 after an investigative process. The verbal warning was not appealed. The worker never denied breaching GMP. When the fact of indiscipline is not at issue, it is commonly accepted that a verbal warning may be considered a mild sanction as distinct from a harsh punishment, especially in the pharmaceutical sector of industry.

The team who marked the Worker down on safety, judgement/common sense and work quality, were evaluating such qualities on observable, patent fact. They were not operating within the parameters of a disciplinary procedure where a sanction may be reduced or eliminated altogether when the Worker can give her case. The fundamental point here is that the breach of GMP was not denied by the Worker, so the task of the on-the-job assessment team was to give weight to the GMP breach, not to assess a sanction. Therefore, the disciplinary process and the selection process were two distinct strands. The breach of GMP was a momentary lack of what can be called judgement/common sense, but it was still a lapse. A lack of common sense and judgement can simultaneously be an indication of work performance and a lack of discipline, depending on the circumstances of the incident. I cannot ignore the setting for the misdemeanour which is the highly regulated and specialised pharmaceutical industry where every stakeholder recognises the threat from cross-contamination in different production areas.  

The Worker came across as honest and normally diligent in her work. A strong and credible submission was presented on her behalf. I can understand the frustration and unhappiness of the Worker in that she feels that she was ‘punished’ twice but I believe she was the victim of an unfortunate set of circumstances as distinct from a mischievous imposition of punishment. The timing of the admitted breach of GMP happened to coincide with a selection process of which an on-the-job assessment was a known element. I therefore find that having taken account of all the circumstances outlined above, the selection process was not skewed against the Worker in any unfair way and that the grievance fails.  

Having taken account of all the circumstances as outlined above, I find that the Worker’s claim for an award of a permanent position with the Employer fails.

Promotion, Verbal Warning.