ADJ-00021255

Complainant

Respondent

Parties

Otilia Ramona  Lascarache

Iss Ireland Limited Iss Facility Services

Representatives

Marius Marosan Marius Marosan

Laura Reidy The HR Suite

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-00028033-001

29/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00028033-002

29/04/2019

The complainant commenced employment with the respondent on 11/03/2014 until she was dismissed on 08/02/2019.  She worked 39 hours per week and was paid €14.80 per hour.  She was employed as a Supervisor in the soft service area. The complainant received a telephone call on 03/01/2019 while she was at home from a colleague with a query in relation to the non-availability of a sterile hose which was required for a sanitary cleaning procedure on a client site.  The complainant advised the colleague to use the same hose and replace the label.  The respondent became aware of this as another colleague who was a trainer was also asked and the trainer was clear that this could not happen and so the cleaning did not proceed.  The respondent initiated an investigation which resulted in a disciplinary hearing. The outcome was that she was dismissed, and this decision was upheld on appeal.  She submitted her complaint seeking adjudication under Section 8 of the Unfair Dismissals Act, 1977 to the Workplace Relations Commission on 29/04/2019.  The complainant also submitted a second complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998.

CA-00028033-001

The respondent is one of Ireland’s leading workplace facility management companies and provides cleaning services to a third-party biotechnology company.  The background to this matter relates to a procedure which must be followed when preparing WFI (Water for injection) liquid for use in sanitising the area where the client production samples are tested.  This area is clarified as a “Grade C” area which means that it is a controlled cleanroom area used for the preparation of solutions that must be maintained as sterile.  At the time of this incident the WFI was being prepared for use in the client’s sample room.  The client uses this room to test incoming products which will then be used in the manufacture of their pharmaceutical products.

Within such an environment there is a Standard Operating Procedure (SOP).  This SOP dictates that the tubes used in the production of the WFI must be changed every 24 hours in order to avoid any bacteriological contamination.  The client has made this a specific requirement which the respondent is obliged to implement.   The result of a bacteriological build up in this room would have serious consequences as the materials being sampled could be contaminated and this in turn would lead to a production stoppage or the disposal of a batch or batches of product.  The costs associated with such an eventuality could range from €1,000,000 to €6,000,000 for a single day of lost production.  This would lead to repercussions from the regulatory bodies such as FDA and HPRA.

In such a scenario the repercussions for the respondent as a provider of services would be very serious.

On 03/01/2019 the complainant was suspended on full pay to allow an investigation into the alleged breaches of the SOP.  In particular, that she incorrectly advised staff members about the SOP in place on the site as regards the preparation of sanitisation material and that she breached the training procedures in place regarding the SOP for this procedure.

The complainant was advised that this incident could potentially be classed as gross misconduct under the company’s disciplinary procedure.  She was invited to an investigating meeting and advised of her right to representation.  The investigation also interviewed a number of witnesses including the employee who was instructed to reuse and relabel a tube.

The complainant confirmed to the investigation that she told her colleague to use the old tube.  She said that told by an employee of the client site that she should use an old tube, but she stated that he may have been joking.  The complainant outlined that she was under pressure in her job and in particular from issues with her manager.

Following this investigation, a disciplinary hearing was arranged.  The complainant was provided with a copy of the investigation report along with minutes from all meetings with witnesses.  The SOP in question was also provided and a printout of her training record was also provided.  Subsequent to this the client provided a e mail response to the respondent stating that their employee did not have any recollection of having a conversation with the complainant wherein he advised her to use an old tube.

The outcome of the disciplinary hearing was that the complainant was dismissed with effect from 08/02/2019.  The letter confirming the dismissal outlined in detail the rationale behind the dismissal along with details of her responses provided at the hearing.

An appeal was lodged, and this was heard on 04/02/2019.  This appeal was facilitated by a Key Accounts Director.  The outcome of the appeal was communicated to the complainant on 14/03/2019.  The decision to dismiss was upheld.

The respondent is satisfied that the investigation, disciplinary, and appeals processes were conducted in accordance with the principles of natural justice.  The complainant was provided with all details in relation to the allegation.  Furthermore, she was at all times informed of her right to representation, the right to state her case and the right to a fair and impartial appeal hearing.  There was no deviation from these principles

The respondent submits that the complainant was a supervisor.  In that role she would be fully aware of all company policies and had a lot of experience of attending meetings with colleagues and was able to state her case.

It is the respondent’s position that the complainant wholly contributed to her dismissal.  At all stages she admitted that she was aware the day before the incident that there was a shortage of tubes but failed to highlight this to the client’s employees who were responsible for replenishing such stocks.  She also did not highlight this to her own manager.  The complainant deliberately and knowingly instructed her direct reports to ignore the SOP despite the fact that she was well aware of the consequences of doing so.  This amounted to an irrevocable breach of trust which is core to any employee/employer relationship.  Alternatives to dismissal were considered but dismissal was considered the only appropriate sanction.

CA-00028033-001

The complainant worked as a soft service supervisor with the respondent.  She commenced employment in Match 2014 and was promoted to this role.  It was submitted on behalf of the complainant that the event which led to her dismissal has to be looked at in the context of when and how this incident happened.  She was at home on 03/01/2019 looking after her young children.  At 7.20M she got a call from one of her colleagues asking her advice on what to do when there was no sterile hose available to do the sanitary cleaning.  She advised him to use the same hose but to change the label.  She offered this advise as he had received this advise from the trainer on the site where the cleaning was taking place.  This trainer is the same person who trained employees on the particular cleaning process.

On arrival at work she met her manager, Mr A.  She did not suspect that anything was wrong but realised she had given incorrect advice when another colleague contacted her to ask about a uniform as the sanitary cleaning could not go ahead.  The complainant’s colleagues did not proceed with the advice given by the complainant.  Later that day Mr A asked to meet her and sought clarification in relation to the advice she had given earlier that morning.  After doing so she was informed that she was asked to leave the premises and leave any company property behind.  She submitted a complaint in relation to Mr A on 06/01/2019.

She attended an investigation meeting on 08/01/2019 and this resulted in a disciplinary meeting on 25/01/2019.  She received the outcome of the complaint in relation to Mr A on 07/02/2019.  The outcome of her complaints was that they were not upheld, and she was unhappy with this due to the way her complaint was analysed. 

The outcome of the disciplinary meeting was issued on 08/02/2019 and she was summarily dismissed.  An appeal hearing took place on 04/03/2019.  The outcome of this decision was communicated to her on 14/03/2019.  The decision to dismiss the complainant was upheld.

It was submitted on behalf of the complainant that a significant event took place on 14/02/2019.  Mr A, the complainant’s manager, held a meeting with staff and informed them that the complainant was dismissed and would not be returning.  He invited applications for the vacant post of supervisor.

It was submitted on behalf of the complainant that in the five years she worked for the respondent there were no disciplinary action taken or no warnings issued, and she had no problems in relation to her performance.  It was due to her exemplary performance that she was promoted to the role of supervisor.

It was also submitted on behalf of the complainant that the reason the complainant received the telephone call was because the person who was responsible for matters prior to the arrival of the supervisor was late for work. 

It is the complainant’s position that a similar occurrence took place previously and no dismissal took place.  Despite the fact that the procedure did not go ahead the complainant was dismissed.  Other staff were sanctioned by informal discussion and despite serious breaches of smoking regulations no staff were subject to the same level of sanction. She was not afforded an opportunity to retrain or have a lesser sanction imposed. The sanction issued to the complainant is disproportionate and not based on natural justice and fairness.

A number of witnesses gave evidence. 

Mr VA:  Mr VA worked on the site where this incident took place.  He was later employed by the respondent and continued to work on the site for a total of nine years.  The complainant was part of his team and she was promoted to the role of site supervisor.  He was shocked to hear that the complainant was dismissed for not following an SOP when no product was impacted.  During his time there he was aware of, and investigated, incidents in relation to the failure to follow an SOP. 

None were dismissed despite serious breaches of safety and compliance.  Mr VA also outlined that if there was an issue it would not have any patient impact as all products are quarantined for a period.  Any change to an SOP could only be made by the relevant manger.  He confirmed that he was aware that a similar incident in relation to the sterile tube took place, but this did not result in a dismissal.

Under cross examination Mr VA was asked if he was aware if the site trainer is aware of who makes a decision to change an SOP.  He confirmed that they would but, in his experience, no one was ever dismissed for not following an SOP.  The normal practice was that a corrective action plan would be put in place and part of that plan would involve the retraining of the person involved.

Mr VA confirmed that he was not on site when this incident occurred, and he was not involved in the investigation into this matter.

Mr VA confirmed that he worked with the complainant for four years and he never had any problems or issues with her.

Mr AM: Mr AM worked with the complainant.  He outlined a serious of events which he observed.  He provided details of how he noticed the complainant hiding and crying on a number of occasions.  He felt that her manger was overworking her and exploiting her.  He also observed that three other colleagues seemed to be working against the complainant. 

Mr AM also outlined what he considered to be an unusual occurrence whereby Mr A was in a position with a named female colleague that he described as not work related.  This was the person who was appointed to replace the complainant.

The complainant in evidence outlined that she never had any previous disciplinary action and that she was always flexible and done overtime when necessary.  This was her first job since coming to Ireland.  As supervisor she was trained in various procedures.  She outlined that she alerted her manager to a number of issues involving their staff smoking while on duty.  This was a severe breach of policy.  There was never any dismissal arising from these incidents.  She also outlined that she raised other complaints with her manager, but these were never investigated by him.

In relation to the incident while led to her dismissal the complainant said that she was told by an employee of the site company that it was acceptable to use the same hose but to change the label.  She asked the employee about this as she was aware the previous evening that there were no hoses available and it was up to the client site to provide these.  That was the only reason she told her colleague to do this.  The employee from the client site was a trainer.

The complainant believes that her manger, Manger A, used this incident to dismiss her.  It was he who decided that there should be an investigation.  She accepts that this was wrong advise.  She confirmed that the date of dismissal was 08/02/2019.

Under cross examination the complainant confirmed that she was advised of her entitlement to representation at the investigation, disciplinary and appeal hearings.  She availed of this right.  The complainant also confirmed that she received all documents in advance of the disciplinary hearing apart from one which was an e mail received at short notice from the client site confirming that their employee had no recollection of having had a conversation with her in relation to the use of the hose.

The complainant also confirmed that she had an opportunity to put forward all her points and that her representative was given the same opportunity.  The complainant’s representative clarified that he attended those meetings in the capacity as a witness and not as a representative.

The complainant outlined that this incident and the decision to dismiss her put a lot of pressure on her and she needed medical assistance. 

The complainant obtained suitable employment on 23/09/2019.  The complainant also provided evidence of her attempts to mitigate her loss.

CA-00028033-001

The fact of dismissal in this case is not in dispute.  The dates of the employment are also not in dispute. 

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

4)      Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a)    the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

The Acts deem a dismissal to be unfair until the respondent can demonstrate that it was neither substantively nor procedurally unfair.  The combined effect of the above sections of the Act require me to consider whether or not the respondent’s decision to dismiss the complainant, on the grounds stated, was reasonable in the circumstances.  It is well established case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the respondent’s decision in the circumstances.  It is not the function of the Adjudicator to establish either the guilt or innocence of the employee.

The function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done.  This is the standard by which the respondent’s actions must be judged against.  The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

In cases where a dismissal involves gross misconduct the EAT set out the appropriate test to be applied in such circumstances.  In O’Riordan v. Great Southern Hotels [UD1469-2003] the EAT stated as follows:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild of the accused of wrong doing.  The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

The issue of fair procedures requires examination.  It is clear that the investigation process was thorough and conducted by persons with the relevant expertise.  The disciplinary process was conducted in accordance with the provisions of S.I. No 146 of 2000, more commonly referred to as the Code of Practice on Grievance and Disciplinary Procedures.     The appeal’s process was likewise conducted in accordance with the principles of natural justice and fairness. 

In the within case there are clearly issues which the respondent was required to address.  A supervisor decided to tell one of her team to utilise a hose and relabel it in a sterile environment which had the potential to compromise the cleaning process which in turn could have an impact on the client’s manufacturing process.

During the hearing there was a lot of emphasis placed on the fact that there was no adverse outcome as a result of the complainant’s advice.  This, in my view, is insignificant.  The reason that there was no adverse outcome was because an employee at the client site decided that the cleaning process should not proceed on the basis of the advice given by the complainant.  Without such an important intervention it is not unreasonable to believe that the consequences for the operations at the client site and the respondent’s contractual arrangement and/or reputation could have been compromised.  This would have been untenable in a sterile manufacturing site.

The complainant’s role as a supervisor placed her in a position of great trust.  She was the respondent’s representative on the site and her actions merited investigation.

Having considered the evidence adduced at the hearing and the substantial submissions received I find that the decision of the respondent to dismiss the complainant was a reasonable response to the circumstances presented.  I find that the complainant was not unfairly dismissed.

CA-00028033-001: I find that the complainant was not unfairly dismissed.

CA-00028033-002: I find that this complainant was not discriminated against.

Unfair dismissal.  Instruction by supervisor.