ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026998
Parties:
| Complainant | Respondent |
Anonymised Parties | Production Supervisor | R&D and Production Company |
Representatives | Alan Ledwith B.L. | Ronnie Lawless IBEC West |
Complaint:
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-00034526-001 | 07/02/2020 |
Date of Adjudication Hearing: 15/09/2020
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the UnfairDismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant contends that he was unfairly dismissed having been denied fair procedure and natural justice during an internal investigation. |
Summary of Complainant’s Case:
The Complainant contends that he was dismissed on foot of statements by employees who reported to him. As Supervisor the individuals who reported to him were a Line Lead and two Operators. The main and core point of the Complainant’s case is that throughout the entire investigation and disciplinary process which the Respondent invoked against him, the Complainant was never allowed to question or test the evidence of the 3 main witnesses, upon whose testimony the Respondent relied in dismissing the Complainant. The Complainant’s case further relies on the serious flaws in the process, whereby (a) he was denied the right to legal representation, (b) the witness statements were not supplied to him in the Investigation minutes and (c) the appeal process was flawed in that the Appeal Officer failed to address the critical issue of the right to examine witnesses. It is submitted that clause 7 of the Statutory Instrument S.I. 146/2000 provides that an employee who is subject to a disciplinary process may be allowed to confront or question witnesses. It is submitted that in all of these circumstances, the Complainant was not allowed due process and was unfairly dismissed from his employment. |
Summary of Respondent’s Case:
The issue which led to the Complainant’s dismissal concerns a visual inspection process which identifies potential issues on circuit boards designed for cameras. From the issues identified a trained operator can determine if the part is good or bad. To pass the board through to the next stage a button is pressed. There is a time delay set in the system so that a board cannot be passed to the next stage of the process quicker than 0.8 seconds. The reason for the delay on the button is to ensure that the visual inspection takes place. A complaint was made by a supervisor on evening shift that a number of individuals on the next shift, the night shift, were deliberately bypassing a visual inspection process – a quality process that is in place to assess severity of faults identified by the system. A subsequent observation by management indicated that it appeared that the system had been manually overwritten to bypass the system inspection and the delay had been reset to 0 seconds. The actual process is critical in detecting issues as subsequent quality checks are not guaranteed to identify faults that should be picked up at the initial stage. The potential risk to the company could be produce recall, customer lines down, reputational damage which could cost the company millions. All Operators, Line Leads and Supervisors had been given clear instruction following a previous customer issue in relation to this topic that this behaviour would not be tolerated. For this reason, the Respondent had no choice but to issue the most severe sanctions. Between 3rd October 2019 and 6th November 2019, a number of background reviews were conduced which pinpointed changes made by human intervention which highlighted discrepancies in the visual inspection process. Two Operators and a Line Lead were suspended on 7th November 2019 pending investigation. Meetings with the three employees indicated that the Complainant had instructed them to turn off the delay. One of the employees stated that she had hit the button too fast, but she did not escalate the issue to the Complainant as Supervisor and he would not put down a line for the delay being off. On 14th November 2019, the Complainant was advised by the Respondent that an Internal Workplace Investigation was being launched, in accordance with the Company written procedure, whereby the Complainant allegedly gave instruction to bypass the inspection process and/or was aware that the inspection process had been bypassed. A full and thorough investigation and disciplinary process followed. The Investigation process included a meeting with the Complainant on 18th November 2019. The Complainant was provided with the specific allegations that he; had allowed a line to run with the inspection process delay turned off, had instructed an individual/individuals to run the process with the delay turned off had signed the rotation checklist knowing that no rotation had taken place had instructed an individual/individuals to falsify the (hourly activity performance) sheet. The Investigation concluded that on the balance of probabilities the Complainant did instruct an individual to by pass the inspection process and was aware that the inspection process had been bypassed during production hours. This was considered gross misconduct. The Respondent met with the Complainant on 5th December 2019 to receive his observations on the Investigation report. The Complainant stated that he had an issue with the report stating that he had an issue with the report stating he had conducted an act of gross misconduct, that he believed the 3 employees who had named him as having instructed them to bypass the process and/or aware the inspection process had been bypassed wanted to take the blame away from themselves. He also stated that he would have been busy with other tasks at the start of shift and could not have instructed people to make a change at the time. The Complainant was provided with statements made by the 3 employees on 11th December 2019 as they had been omitted from the report. Two of the employees had stated that the Complainant had instructed them to bypass the system and all three said he was aware the process had been bypassed. On 17th December 2019 the Respondent met with the Complainant and advised him that the outcome/findings were: In his role of Supervisor he had to have been aware that this situation was happening on his shift, as the inspection process would have been visibly have been happening too quickly, the line would have been stopped some time before end of shift with targets having been hit ahead of time, and there would have been zero activity in the area with Operators not having work to complete. Disregard of a known quality process that was widely communicated and put in place to protect the customer and the company, allowing potential faulty cameras to pass through the production floor to a customer plant, and put the entire reputation and viability of the company at risk. This led to a complete breakdown of trust in the employment relationship and was considered an act of gross misconduct. The Complainant was informed that his contract was to be terminated with immediate effect. The Complainant was given the right of appeal and exercised this right in January 2020. The appeal decision was sent to the Complainant on 24th January 2020. The decision was to uphold the decision to terminate his contract. The Respondent submits that a full and thorough investigation was carried out by the Respondent, the finding of which was that an act of gross misconduct had taken place and the only sanction open to the Respondent was dismissal. It is submitted that in his role of Supervisor, the Complainant was the gatekeeper of trust, truth and honesty. It is therefore submitted that the decision to dismiss was fair and reasonable in all the circumstances. |
Findings and Conclusions:
In reviewing the evidence and submissions, I find that the Respondent carried out a thorough investigation and disciplinary process into the serious allegations which were clearly put to the Complainant during the process. I note the Complainant’s representative relies on the core points that (a) he was dismissed on foot of statements by employees who reported to him and that he was never allowed to question or test the evidence of the 3 main witnesses, (b) that there were serious flaws in the process, whereby he was denied the right to legal representation, (c) the witness statements were not supplied to him in the Investigation minutes and (d) the appeal process was flawed in that the Appeal Officer failed to address the critical issue of the right to examine witnesses.
I note that the Complainant was denied the right to question in person the employees who made statements against him. The right, however to make his case was exercised by the Complainant during the investigation process. I note he exercised this right and made clear his belief that the employees concerned were attempting to deflect blame from themselves in the matter. I note that the Complainant was not facilitated with legal representation. This issue was comprehensively dealt with in the Supreme Court judgement McKelvey v Iarnrod Eireann/Irish Rail 2018/178, where Mr Justice Clarke found inter alia that the code of practice set out in the Industrial Relations Act 1990 S.I. 146/2000 is silent as to the question of legal representation of employees during a workplace disciplinary process. Mr Justice Clarke also examines the issue in the context of whether legal representation is necessary to ensure a fair process rather than, potentially, being merely of some possible advantage to the relevant employee. The McKelvey judgement is not ‘on all fours’ in this instant case, involving as it did an application for an interlocutory injunction to halt disciplinary proceedings. However, Mr Justice Clarke’s judgement in upholding the Court of Appeal’s declining the injunction, concludes that the observation in Burns v Governor of Castlerea Prison [2009] IESC 33 to the effect that legal representation will only be required as a matter of fairness in exceptional cases provides overall guidance to the proper approach. I find that in this instant case, the matters placed before the Complainant were clear and he was given the right to be represented by a colleague, the right to be heard and the right to appeal. These steps fulfil the basic tenets of natural justice. I note the witness statements were omitted in error in the issue of the Investigation Report, however this was subsequently rectified. I note and accept the Complainant’s point that the Appeal Officer did not address the issue of the lack of examination of witnesses, however this was not a fatal flaw in the process.
I find that the Complainant was dismissed following a full and thorough investigation process, in circumstances where very serious charges were laid. The Respondent was entitled to expect honest and competent performance from the employee, and I find the Respondent acted reasonably in dismissing the Complainant. I do not uphold the Complainant’s claim that he was unfairly dismissed.
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have decided that the Complainant was not unfairly dismissed.
Dated: 03-11-2020
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Unfair dismissal, procedures, legal representation. |