Employee

Respondent

Anonymised Parties

An engineer

A medical device company

Representatives

Self

Julie Galbraith, Eversheds Sutherland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00033055-001

13/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00033056-001

13/12/2019

The Employee commenced employment with the Employer on 13 May 2019 as a

Production Support Technician. The employment ended on 8 November 2019.

The Employee was paid an annual salary of €33,000.

This complaint was received by the Workplace Relations Commission on 13 December 2019.

The hearing of the complaint took place on Thursday 23 July 2020 and was conducted remotely.

I note that the Employee submitted two complaints i.e. CA – 00033055 – 001 and CA – 00033056 – 001. On examination of these two complaints I note they are identical. The complaint bearing the reference CA – 00033056 – 001 is therefore deemed to have been withdrawn and the recommendation refers to CA – 00033055 – 001.

In response to the area concerning his inability to carry out Good Documentation Practice (GDP).

In October 2019 a presentation was carried out by the Quality Systems Engineering Department in the Employer company. This training involved illustrating how documents in the Employer company should be completed. The Employee attended this training along with a number of other staff members. Among the staff at this training was another employee who was with the Employer company for 10 years. This other employee was the Employee’s counterpart on the Day shift but was not required to carry out technical procedures on equipment.

The training tracker is an Excel spreadsheet which uses the program Visual Basic for Applications. The Employee points out that he was hired as a Production Support Technician, this development work of VBA is more akin to a software development role. However as illustrated in the email sent to line management the Employee used his initiative and found similar macros (programs) on the internet, which enabled the training tracker worksheet to be completed. The Employee sent out this training tracker every week which instructed employees within the department, which training they needed to complete. As a result of his work the Quality Management System Audit (ISO 13485) which took place in September 2019 was achieved. As part of this Audit, the Manufacturing Engineering department employees had to each have 95% of their allocated training completed. Due to the updating and communication of the training tracker spreadsheet all the staff in the department achieved this. On Page 28 of the ‘summary of support’ he received acknowledgement of his work relating to the training tracker worksheet.

As part of his training the Employee was on the day shift for a period of 6 weeks. He completed all documentation training within the 30-day requirement. All training was verified by management. The Employee also shadowed another employee on the day shift and completed tasks such as Preventative Maintenance on various equipment within the plant.

In relation to recurring 1 to 1 review. The Employee accepted the schedule in his diary. The meetings were scheduled for 15:30 on a Friday and the line manager attended approximately 50% of these. The excuses received for postponement or non-attendance varied from having to attend other meetings to dealing with more pressing matters. Even though the line manager states that he was at the plant until 16:30 on Fridays, he wasn’t always having a review with the Employee.

The Employee contends that it is evident that he made efforts to carry out meetings to complete the required tasks. Input is required in equal amounts from Engineering, Production, Logistics and Quality Engineering to achieve the most efficient Value Stream for a Process Flow Chart. Meetings which the Employee arranged were not being attended by the respective parties, hence he would constantly need to reschedule meetings. After the Process Flow Charts are agreed upon, signatures are required for authorisation of the amended charts. One manager was for the greater part of the Employee’s time with the Employer exceedingly late in signing the requested documentation leading to delays. After all signatures are gathered the document is reviewed by the Document Control Administrator. The process can take a number of days and if the DCA finds any errors they send it back to the originator, even though the relevant management have reviewed and signed the document.

A weekly team meeting which was attended by the manufacturing team took place on Tuesdays from 15:30 to 16:30. The Employee attended all these meetings at the requested time, even though his start time was 16:30.

The Employee feels that he made some suggestions on how the process flow could be improved, one suggestion in particular was implemented for which the Employee received no recognition.

The Line Manager refers to Calibration Checks. The calibration checks completed by the Employee were all within specification. If they were not within specification the controllers would have been removed. The Line Manager was concerned that the results were not close to the mean, however the controllers were still in specification.

Paperwork was never altered or falsified, the Employee points out that he was a very conscientious person who realises the consequences of inaccurate data regarding Medical Device components.

The Employee identified a number of tasks that he had completed and claims that these were completed in a satisfactory manner and on time.

The Employee attended the 6-month probation meeting on Friday the 8th of November 2019 at 4.00pm. The Employee was informed that the Employer company would be terminating his employment based on his failure to pass his probation period of employment. The Employee expressed his concerns about the lack of support and clarity regarding the role which he had received during his employment with the Respondent. The Operations Manager’s sole response was, he was sorry he felt that way and he wished the Employee all the best for the future. The HR representative then instructed the Employee to return his ID card and company computer which he duly did and proceeded to leave the premises.

The Employee also stated that the three members of management involved in his 360-degree review were all employed on the dayshift where he was employed on the evening shift.

The Employer is one of the leading medical device companies in Ireland.

The Employer employs approximately 164 employees across Ireland and 278 globally.

The Claims provide that the Employee was unfairly dismissed by the Respondent. The

Employee has not accrued the requisite service to submit a claim under the Unfair Dismissals Acts 1977 to 2015. The Employer submits that the Employee was not unfairly dismissed. The Employer afforded the Employee fair procedures when determining that the Employee had not successfully passed his probationary period. The Employer denies the Claims in their entirety.

The Employee commenced employment with the Employer on 13 May 2019 as a

Production Support Technician. The Employment Contract provides for a six-month probationary period as follows:

“The appointment shall commence on 13 May 2019. A six-month probationary period shall

apply to this position. And shall be deemed to be a permanent position following the

completion of a six-moth probationary period. This probationary period may be extended up

to a maximum of 12 months at the discretion of management … The Company’s Disciplinary

Procedure will not apply to your employment during the probationary period or any extension

thereof. The appointee shall be entitled at the Company’s discretion to Company Benefits

after 3 months’ employment has been completed.”

The Employee is a qualified engineer with a B.Eng. (Mechanical) and was undertaking a

BSc in Process Technology when he applied for the role with the Respondent.

Three months after the Employee commenced his employment, he attended a feedback

meeting to discuss his performance with his manager. The Manager had determined that a review meeting was required to discuss the Employee’s ongoing performance shortcomings and to set particular areas of improvement/focus.

In advance of the meeting, the manager sought the opinion of three other team members who had worked with the Employee. Those views were also shared with the Employee. The reports indicated that he Employee was not operating to the standard required to date.

The Employee was also advised that the Respondent’s discretionary benefits would not

be provided to him at that point as he had not met the performance standards required.

The Employee’s probation review was held after his first three months on the 13th of

August, and company benefits were not applied at this time.

A list of objectives was issued at this time, and subsequently added to his goals.

This list summarised the key deliverables required from the Employee. The Employee accepted this feedback and agreed that the new goals were achievable.

Following on from the three-month feedback session, the Employee’s performance

improved slightly but the improvement was not sustained, the Employee’s line manager discussed these matters with the Employee on a regular basis.

On a number of occasions, the Employee failed to meet agreed deadlines. Ranging from project plans, documentation updates, process flow chart updates, & Non-conformance investigation activities.

The Employee was asked to build a project plan that could be used by the

Employer as a communication tool to monitor progress of documentation updates

required resulting from the new inventory management system rollout.

It was agreed that this action would be completed by 14 June 2019, but the Employee provided the plan on 19 June 2019,

As part of the plan created by the Employee, he was responsible for completing

the associated documentation updates by Aug 15. Regular updates

were given, and in the weekly yield meeting for week 45 (November) 2019,

Employee advised that the last DCR (Document Change Request) had been approved for this project, Correspondence from document control department in January 2020 shows no record of that DCR being submitted.

The Employee was tasked with ensuring that process flow charts for CSI were brought up to date to reflect the current process, Employee marked this goal complete on the 3rd July. This action was to be completed by the 01 July. A review of the documents shows that the DCR required was not released until the 12th of August. Therefore, the goal was not met despite being communicated that it was.

Other examples of the Employee’s failure to complete allocated tasks on time were provided.

The Employee was responsible for daily calibrations which took the Employee two to three times longer than other colleagues doing the same maintenance duties.

The Employee was unwilling to take responsibility for his own projects. For example, at times he asked his peers to update sections of his DCR with their own updates. Separately, he was responsible

for the project to move Test Equipment but delegated tasks that he should have taken ownership of himself. In fact, as project leader for this qualification, the Employee is responsible for the project and should have taken ownership of its full implementation and delivery.

The Employee was trained up on failure analysis using automated measuring equipment for measuring product assemblies. However, the Employee never took the initiative to complete the failure investigation.

Weekly equipment stock takes were introduced on equipment and calibrated fixtures. The result was a large improvement in the control of test equipment and calibration items. The Employee stopped completing the weekly activity without notification for this.

The Employee achieved low scores in most metrics from the 360-peer feedback review.

He received low scores after his initial first three months when rated by three separate parts

of the business: manufacturing, quality, and engineering. The 360 review was repeated after

five months, where the Employee scored even lower results from the same group of peers.

Therefore, it was not simply the opinion of the Employee’s manager that he was not

performing as required but three peers also indicated that the Employee was not meeting

expectations. The feedback was that the Employee was consistently slow to show any

form of engagement or enthusiasm about his role. A summary of the scores were given to

the Employee in the context of the projects he was leading, individual reviewers or results

were not disclosed.

As a result of the continued poor performance, the Employee was invited to a probationary

review meeting. He was advised in the invite letter that one of the outcomes of the meeting

may be that the Employer May decide not to continue the Employee’s employment

beyond his probationary period.

The issues with the Employee’s performance were discussed in full with him in the

probation review meeting. The line manager explained that at the three-month review, a number of key improvements were outlined to the Employee and although there was some initial

improvement, this was not sustained. In particular, many timelines were not met and on

one occasion, the Employee decided not to continue with a project without any

authorisation. The line manager explained that he had reluctantly come to the decision that the

Employee had not passed probation based on his performance.

The Employee was issued with a follow up letter detailing the discussions which took place

and confirming that the Employer had reluctantly come to the decision that the

Employee had failed to pass his probationary period. The effective date of the termination

was confirmed as being 8 November 2019 and the Employer paid the Employee in lieu

of his notice.

LEGAL SUBMISSIONS

This case has been brought under the industrial Relations Acts as the Employee does not

have the requisite service to bring a claim under the Unfair Dismissals Acts. He was engaged

in total, for six months with the Respondent.

The terms of the employment contract are very clear. The Employee has also provided the contract as part of his submission. This contract was comprehensively complied with. The Employee was provided with extensive feedback and training on his performance.

To summarise, the employment contracts provides as follows:

“A six-month probationary period shall apply to this position…The Company’s Disciplinary

Procedure will not apply to your employment during the probationary period or any extension

thereof. The appointee shall be entitled at the Company’s discretion to Company Benefits

after 3 months’ employment has been completed.”

The Employee understood at his three-month review that his performance was not of the

required standard. He was not provided with the discretionary company benefits. He was

provided with specific and tangible areas of improvement. He had regular check in meetings

with his manager. He simply didn’t make the necessary improvements. He was invited to a

meeting, the issues were discussed with him, he did not put forward any mitigating or other

factors of relevance and the decision was taken not to continue with his employment.

It was submitted that it is exactly this type of scenario, which is envisaged by a contractual

probationary period. There were no personal or other issues with the Employee, he simply

did not perform in the role as was required and to the standard of his peers.

Unlike recent cases where employees were dismissed without process, just before 12 months, the Employer undertook extensive engagement with the Employee, as they would for any employee. It is recognised that some employees find a transition difficult and they gave him the time at the three month review to seek to make improvements.

Unfortunately, the Employee was unable to make the necessary improvements.

CONCLUSION

It is unfortunate that the role did not match the Employee’s experience, abilities and

expectations. The Company spent time recruiting for the role and wanted the Employee

to be a success. The Employee’s manager also worked with him over a number of months

on the tasks required. As is noted from the extensive documents provided, the line manager

took significant time over the six months to review the matter in full with the Employee

and it was only after careful consideration that it was decided that his performance did not

meet the standards required.

In conclusion, the Employer denies the Claims in their entirety. The Employer submits

that it afforded the Employee a fair process in terminating his employment.

In Looney and Co Limited v Looney (UD 843/1984) the Employment Appeal Tribunal (EAT) summarised as follows:

‘It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.’

The instant case bears no similarity to the case quoted above however the thinking of the EAT in identifying the task before them is the same as the task before me in this case, the questions to be asked are as follows:

1.       Were the actions of the Employer the actions of a reasonable employer?

2.       Were the procedures followed by the Employer fair?

In Grant Thornton v A Worker (LCR 21543) the claimant submitted a complaint to the Labour Court under section 20(1) of the Industrial Relations Acts 1946 to 2015 in respect of the decision of the Employer to dismiss her during her probationary period and agreed to be bound by the Court’s recommendation. The Employer submitted it was entitled to dismiss her under her contract of employment as she had not satisfactorily completed he probationary period. The Court found that the Employer failed to adhere to the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000) before the decision to dismiss the employee was taken. In coming to that conclusion the Court had regard to the following: while the claimant was invited to attend a probation meeting the decision to dismiss had been taken prior to the meeting; the claimant was not afforded the opportunity to be accompanied at the meeting; and no appeal procedure was available to the claimant in respect to the decision to dismiss her.

The Court was also critical of the fact that the claimant’s contract of employment purported to provide that normal disciplinary procedures did not apply during the probationary period, noting that the Code of Practice applied in all circumstances where an employee was at risk of having his/her employment terminated. The Court recommended that the claimant be paid €1,500 in compensation in full and final settlement of the claim before it.

The similarities between the case quoted and the instant case are evident. I would suggest that the Employer looks carefully at clause 5 of the Contract of Employment.

The Respondent’s Employee Handbook, under the heading of Probation contains the following:

Each employee will serve a minimum of a six-month probationary period on commencement of

employment. A review of your performance will take place at or near the end of your probationary

period where necessary and appropriate. Termination of your employment during the probationary

period is at the absolute and sole discretion of the company. Natural justice and fair procedures is

equally applicable in cases of dismissal during the probationary period.

The Employer decided that the Employee was not suitable for the position he was hired for and the reasons are outlined above.

The Employer has failed to utilise fair procedure in the dismissal of the Employee and I therefore recommend the payment of compensation to the Employee of €5,000.

This sum should be paid to the Employee in full and final settlement of his claim and should be made within 42 days from the date of this Recommendation.

Industrial Relations Act. Dismissal during probationary period of employment.