ADJ-00027471

Complainant

Respondent

Parties

Sandra  Garvey

Connaught Electronics Ltd Valeo Vision Systems

Representatives

  SIPTU Workers Rights Centre

IBEC  

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-00035176-001

11/03/2020

The complainant submits that she was unfairly dismissed.  The respondent submitted that the complainant was dismissed but that the dismissal was not unfair.

A summary of events are as follows:

The Complainant was suspended with pay on 7th November 2019.

Investigative meetings took place on 11th November 2019 and 13th November 2019.

An investigative report was issued dated 19th November 2019 by Paul Callan APU Manager, and Cathal Cassidy, HR Business Partner.

An observation meeting was held on 22nd November 2019.

The Complainant was advised that she was dismissed in a letter dated 6th December 2019 by Brendan Fahey, Production Manager.

The complainant appealed the decision to dismiss and her appeal was held on 18th December 2019.

A decision to uphold the decision to dismiss was issued on 7th January 2020 by Diarmuid Doherty Site General manager. 

The complainant commenced employment in February 2016 as a Production Operator and in 2018 she was promoted to Line Leader until her dismissal on 6th December 2019.  The Complainant’s training was up to date at the time of her dismissal.

The matter under investigation took place in an area of the production floor where printed circuit boards that make up the cameras are produced. The complainant’s role in this area included supporting the Production Supervisor, being a role model operator and ambassador for the organisation and performing operator duties as and when required. 

A complaint was made by a supervisor to the unit manager Mr Callan, around 3rd October 2019, that individuals on the next shift were deliberately bypassing the visual inspection process.  This visual inspection process in the area, identifies potential issues on circuits 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 quicker than 0.8 seconds. The reason for the delay on the button is to ensure that the visual inspection takes place. This process is critical in detecting issues so that faulty product will not be delivered to the customer - this could result in failures on the customer lines or warranty failures at a later stage. The cost to the company could run into millions.  All employees had been given clear instruction, following a similar previous customer issue, in that this behaviour would not and could not be tolerated. 

Mr Callan monitored the situation towards the end of night shift and noted that one of the production lines had stopped running early but was still hitting all its output targets, quicker than cycle times suggested, which was extremely unusual. Mr Callan asked the engineering team for a review of the cycle times and discrepancies were found at the inspection process where it appeared the system had been manually overwritten to bypass the system’s inspection process. As a result, an investigation was launched.  

The issue was highlighted again on 8th October 2019 involving the same operators involved on 3rd October. Between 8th October - 6th November 2019 background reviews were conducted including to identify the cause of the delay being switched off and back on again.  It was noted that that the line was finishing production early but still hitting its numbers. In addition, the information being submitted on the paperwork did not align with the machine activity observed. On 7th November 2019 the complainant along with two Operators were suspended from work pending investigation and their supervisor, Mr A, was also suspended with pay pending an investigation on 14th November 2019. 

It was submitted that complainant’s investigation invitation letter was clear in outlining that the allegation was one of potential gross misconduct, that the allegation related to the bypassing of the inspection process, that the Complainant was entitled to be represented during the process and that the matter would be investigated in line with the company’s disciplinary policy which was appended to the letter. The complainant was invited to attend an investigation meeting on 11th November 2019. 

The complainant attended the investigation meeting on 11th November 2019, represented by SIPTU. The complainant was afforded the opportunity to respond to the allegations against her and indeed brought a diary with her to the meeting, which she used to cross reference against the dates on which the alleged incidents occurred. The complainant acknowledged and agreed that it was impossible that adequate checks had been completed. While she maintained that she herself would not “skip a step”, she acknowledged that she had signed off on the rotation sheet as Team Lead. 

Furthermore, in relation to the shift on 10th October 2019, when asked why one of the sheets indicated that staff continued to operate the line until the end of the shift, contrary to system records, the complainant gave no credible explanation for this discrepancy.  The complainant agreed that it would not have been possible to complete targets an hour early on that date with the relevant processes in place. The complainant acknowledged that there were occasions on which the delay was turned off, however she stated that neither she nor the technicians knew how to fix this.

At the second investigation meeting on 13th November 2019, the complainant was afforded another opportunity to put forward her case and was again represented by a SIPTU.  Follow up questions were also asked in relation to the complainant’s assertion that she had observed activity on the line at times when the system information demonstrated that no activity whatsoever was occurring on the line within this timeframe. When asked why the line was not stopped if the delay was off, the complainant advised that it was not "up to her” to stop the line and that only the supervisor could make that call. The investigation officers took time to consider the totality of the evidence and an investigation report was issued to the complainant dated 19th November 2019.  The findings outlined in the investigation included that the complainant was aware that production was running with the delay turned off.  The complainant did not escalate the matter.  The complainant knowingly operated the machine with the delay turned off and that the complainant “did violate the Disciplinary and Grievance Procedure HRP052 and an act of gross misconduct occurred”. 

The complainant was afforded an opportunity to review the investigation report prior to responding to same. The complainant opted to attend a meeting to respond to same on 22nd November 2019 and the complainant was again accompanied by SIPTU and made observations on the findings of the report and put forward some mitigating circumstances in relation to her actions. This included that she escalated the issue of the delay to the Supervisor.  The disciplinary meeting took place and Mr Fahy considered all the facts and at an outcome meeting the complainant was informed that her employment would be terminated on the grounds of gross misconduct owing to her

“wilful disregard of a known quality process…and allowing potentially faulty product to pass through…This unethical behaviour has led to a complete breakdown of trust in the employment relationship and is considered an act of gross misconduct”.

A follow up letter was issued dated 6th December 2019, which noted the complainant’s position that she felt that it was sufficient to escalate the issue in question to her Supervisor but that this was inconsistent with an email she and others received in 2018, in advance of the events at the heart of this process. The email in question sent by Ms B, Quality Manager, outlined the severity of the potential consequences of the delay being turned off, and instructed the complainant and all those sent the email that:

“It has come to my attention that there are people trying to override some of the controls that are put in place in (X) area....If this is the case it can have serious consequences for Valeo. We will end up with 0km and warranty issues andescalations and costs.” 

“….can you please communicate to all your operators that the controls are in place for a valid reason, if there is a concern about them tell them to talk to you/APU Manager or me but NEVER CHANGE them.”

The complainant understood the seriousness of the issue and the potential damage that could be done for the business, based on previous issues of a similar nature.  The complainant had disregarded a known quality process that was put in place to protect the customer and the company, that it could have resulted in faulty product to pass through the production floor to a customer plant, and potentially a customer’s vehicle.  The company did agree to pay the complainant two-weeks’ notice, notwithstanding that this was a summary dismissal.

The Complainant appealed her dismissal to Diarmuid Doherty and was represented by SIPTU. The complainant’s grounds of appeal were discussed at this meeting and the Complainant was once more afforded the opportunity to put forward her position regarding same.  The outcome of the appeal, issued on 7th January 2020, upheld the complainant’s dismissal.  The respondent submitted that the Complainant was not unfairly dismissed but was dismissed by reason of her conduct.  The complainant breached a critical process which was in place to protect the company and the customer. The complainant was aware of the potential consequences of her actions and had received correspondence on 9th August 2018 from Ms B, Quality Manager.

In dismissing the complainant, the respondent took into consideration that the Complainant’s actions constituted a “wilful disregard of a known quality process that was put in place to protect thecustomer and the company”, and that this led to a “complete breakdown of trust in the employment relationship”. The decision to dismiss the complainant was upheld on appeal. 

The respondent submitted that the test to be applied in cases of misconduct is whether the employer had a genuine/reasonable belief, following a fair investigation that the employee was guilty of the wrongdoing of which they are accused and that dismissal was a proportionate sanction. It was submitted that the test is met and was the reasonable response of a reasonable employer.

The complainant was, at all times, afforded her rights of natural justice and fair procedures throughout the process, was aware at all times of the allegations against her, provided with an opportunity to respond to those allegations and to present her version of events.  The matter was investigated fully before a decision was made. The Complainant was afforded the right to representation throughout the process. The assessment of the facts and the decision made took into account the representations made by the Complainant and was an impartial determination. The Complainant was provided with, and availed of, the opportunity to appeal. This appeal was heard by a senior manager not previously involved and the Complainant was afforded a fair hearing. 

Case law cited included Scisloski v The Strand Hotel,Looney v Looney and Burtchaell v Premier RecruitmentUD1290/2002. 

At the first day of the hearing, and with no provision in statue for evidence under oath/affirmation,  Mr Callan gave evidence that was not under oath/affirmation and which mostly pertained to operations within the production area.  At the second day of the hearing, with no objection from parties and while some differences in how production lines operate; there was no serious and direct conflict in the evidence that Mr Callan had given day one. Mr Callan then proceeded with the remainder of his evidence under affirmation pertaining to his investigation of the complainant. Mr Callan, said that his role includes managing a team, including Mr A, the supervisor who was dismissed and ensuring that the correct products are made.  It was his evidence that operators are flagged if there are concerns and that the operator gets to make the decision whether to let the product pass.  There is a delay built-in to ensure that the operator examines the product and determines whether the product should be moved on.  Under cross examination Mr Callan said that it was brought to his attention about the by-passing of the system but that he did not get a formal statement from this supervisor who raised it with him and therefore, none was provided to the complainant and that he saw no reason to recuse himself from the process.  Mr Callan confirmed that no statements were given to the complainant from Mr A the supervisor, who was later dismissed, and Mr Callan did not know why the statements were not given to the complainant but that it was not necessary as she had all the relevant information.  Mr Callan gave evidence that if the complainant had an issue with that, then she could have brought it to his attention, but she did not.  It was confirmed by Mr Callan in his evidence that he did not interview any technicians who might have corroborated the complainant’s claim that she escalated it to them.  Mr Callan said that during the investigative interviews, operators gave statements that rotation did not always happen but could not explain why the complainant did not receive their statements.  

Mr Cassidy accompanied Mr Callan, who investigated the complainant and gave evidence that he did not believe suspension without pay is a sanction within the respondent’s policy and that the complainant was interviewed twice during the investigation and that he was satisfied that the complainant knew to raise issues if they occurred but that she did not.  His evidence was that the complainant was asked questions to shed light on other issues that came to the respondent’s attention but did not form part of what she was investigated for.  Mr Cassidy said that there was no need to give statements where the complainant was mentioned as she admitted that she was aware that the system had been by-passed and these other statements had no bearing on her investigation.  Under cross examination, Mr Cassidy confirmed that the investigation report made no mention that the complainant had said she escalated the issue and that the investigation report did not mention that the complainant had said she reported the issue to technicians and the supervisors.  He was not aware if the technicians were investigated for their alleged failure to inquire further into the complainant’s allegations that she had reported the by-passing to them.  When asked why the complainant was originally accused of by-passing the machine and later accused of being aware that the machines were by-passed, Mr Cassidy responded that these were the same things. Mr Cassidy said that he did not check if the complainant was on holidays when the email from quality was sent out in 2018 regarding the importance of not bypassing the system.  Mr Cassidy gave evidence that even if the complainant was on annual leave then she should have read her emails. 

The evidence of Mr Brendan Fahy was that his role is that of Production Manager and that he received the investigative report, and it was up to him to review the findings and accept or reject them.  It was clear to him that it would be very difficult to sit at the machines and not to know that the alert system had been turned off.  He determined that the allegations were serious and that this had occurred previously, and an email had been sent to people about it, therefore, the complainant was aware of how serious an issue it was. The complainant’s role is to lead, guide and coach and earns 10% extra for this and it was unacceptable to proceed and not to escalate it.  In his evidence he said that there were no other sanctions open to him other than to dismiss, as the complainant is a senior person in the organisation.  Mr Fahy said that he did consider demotion but others at a lower level than the complainant had been dismissed and therefore, there was no alternative as she should be a role model.  Under cross examination Mr Fahy said that as a result of this incident there were 3 other employees dismissed and he was involved in their dismissal and saw nothing wrong with this as he was satisfied that he could work off each individual investigative report.  Mr Fahy confirmed that he did not put the details of the interview with Mr A to the complainant as he did not believe it was necessary as he did not use the information gleaned from Mr A’s investigation in the decision to dismiss the complainant.  Mr Fahy confirmed that the complainant’s seniority is one level above a general operator. 

Mr Diarmuid Doherty, Site lead who heard the appeal gave evidence that there three grounds for the complainant’s appeal and that he had accepted that the complainant had escalated the issue of bypassing the machine.  He considered her appeal and found that she was experienced enough and knew what was needed, that she had been on leave during the period that Ms B from quality sent the email but it would have been impossible not to know the significance of the event that had occurred previously and, therefore, dismissal was the only option.  He did not know if demotion is mentioned in the policies or if suspension was a possibility.  Under cross examination Mr Doherty said that he was involved in 3 other appeals and believed he was at arm’s length to hold the complainant’s appeal.  It was his view that the complainant was aware the delay was not in place.  He said that he considered other alternatives to dismissal but in his opinion, dismissal was the appropriate sanction. 

The complainant was suspended on 7th November 2019 following an allegation of gross misconduct, namely that she allegedly by-passed an inspection process and her gross at dismissal was €775.  The letter she received did not say when this alleged bypassing had occurred or when the respondent became aware of it.

An investigative meeting took place on 11th November 2019 led by Mr Paul Callan.  At the investigative meeting the complainant was asked whether she had ever run the machine with the delay turned off.  The complainant advised that she had noticed it turned off a few weeks previously and had reported it to her supervisor Mr A who reported into Mr Paul Callan.  The complainant advised that she never instructed anybody to run the machine with the delay turned off and that she had never turned the delay off. 

A second investigative meeting took place on 13th November 2019.  The complainant was asked at this meeting if she had correctly rotated operators and the complainant confirmed that she would sign the rotation sheet without being certain that rotation had occurred.  The complainant was asked if had she been instructed to run the line with the delay turned off.  The complainant said that she had never heard Mr A tell workers directly to turn the delay off.  When she had noticed the delay turned off, she brought it to Mr A’s attention who advised her to ask the technicians, which she did and the technicians advised they did not know how to correct it.  An investigative report dated 19th November 2019 was issued and the complainant was invited to respond to its findings and conclusions within five working days.  The report found that the complainant was aware that production lines were running with the delay turned off and did not escalate the matter and that the complainant was guilty of gross misconduct.  The bypassing of the machine was now referred to as “alleged”.

An observation meeting took place on 22nd November 2019 and the complainant submitted that she did escalate the matter and that she did not believe she could stop the line.  The complainant was invited to an outcome meeting attended by Mr Brendan Fahy, Production manager, and by letter dated 6th December was issued a letter of dismissal. The complainant was advised in this letter that her actions were unethical and had led to a complete breakdown of trust in the employment relationship.  The letter also mentioned an email dated 9th August 2018 from Ms B Site Quality Manager regarding how important it was not to by-pass the delay switch and that the complainant was regarded a senior member of the team.  The complainant submitted that this email also said that :

“we will monitor the situation and review it in 1 month, if another breech(sic) is found, the matter will be taken to HR”. 

No review took place.

The complainant appealed the decision to dismiss at a meeting held on 18th December 2019 heard by Mr Diarmuid Doherty, Site General Manager. The complainant submitted that she had received no training for her ‘senior’ role; that she believed the delay was happening sporadically and had not identified a pattern; that she had escalated the delay issue to Mr A on several occasions and that she had been on annual leave when an email from a quality person had supposedly been sent to her.  The complainant also submitted that there had been no further protocol updated since August 2018. On 7th January 2020 her appeal of dismissal was not upheld and the complainant submitted her complaint to the WRC in March 2020.

The complainant submitted that it is not the role of the WRC to reinvestigate the allegation that led to the procedures that led to the dismissal.  The complainant submitted that the employer’s actions were unreasonable and not within the band of reasonableness and therefore, the dismissal was unfair. 

The complainant had been initially told that the allegation against her was that she bypassed the process and that the investigative team could change the allegation against her if they wished.  The respondent then changed the allegation against her, and the investigative report makes no finding on this and finds that the complainant was aware that production was running with the delay turned off.  The investigative report, therefore, made a finding regarding whether the complainant was aware the delay was turned off and did nothing about it.  The letter of dismissal issued by Mr Fahy says that the “main issue” was in relation to the delay being bypassed, therefore, dismissing an employee for an allegation which was not initially put to her was unfair and unreasonable.

It was further set out that the investigative process went beyond fact finding and moved into the area of the disciplinary officer when the investigative team found that the complainant committed gross misconduct.  Mr Callan submitted in his report that the complainant bypassed the inspection process and then improperly asserted a right to change that allegation during the course of the investigation.  Mr Callan then changed it back to what was in the letter and Mr Cassidy stated it was an investigative meeting in relation to “allegedly changing in the system of a parameter”.  The terms of reference were the “alleged bypassing of the” process.  However, the report did not make any such finding and find that the complainant “was aware that production lines were running with the delay turned off”.  The complainant was told the investigation was whether she had done the bypassing of the machine.  Furthermore, the complainant was found to have shown “wilful disregard” for the process and was dismissed for this and not dismissed for bypassing the process.  The complainant submitted that Mr Callan should never have been involved in the investigation as the supervisor who had reported the issue in the first instance, reported it to Mr Callan.  It was not appropriate that Mr Callan was allowed to investigate something that he might have been under investigation for himself as Mr A reported into Mr Callan.

The investigation team found that the complainant violated the disciplinary and grievance procedure and an act of gross misconduct occurred.  This was not the role of the investigation team.  Mr Fahy, therefore, was not provided with a report of just facts but was instead also provided with an investigation team who determined that the complainant was guilty of gross misconduct.

The complainant’s job description sets out that she is required to escalate safety matters to “supervisor and/or safety manager” which the complainant did and it was not the complainant’s role to supervise or monitor the work of her supervisor.  The respondent also submits that the complainant was a senior member of staff but it should be considered that the complainant earned less than €17 per hour, held the role on a temporary basis and had received no additional training for such a “senior role”.

The email of 9th August 2018, a year prior to the event, and when the complainant was on annual leave, did not direct recipients to report their supervisor and it must be assumed that Mr Callan was also in receipt of that email as well as Mr A.  Furthermore, it has not been established if the complainant in fact, received that email.  The complainant had unblemished service and her dismissal was disproportionate.

Case law cited included British Leyland UK Ltd v Swift [1981] IRLR91, Smith & Leddy UDD1974, Employee v Employer UD13555/09. 

The direct evidence of the complainant was that she had received a promotion to the Line Lead role in 2018 and was trained by other operators but no formal training was given to her.  In the line lead role she reported to the supervisor Mr A who reported to Mr Callan.  She advised that it came as a shock when she was called over by Mr Callan who read her letter of suspension and took her badge.  It was her belief the investigation was whether she had personally turned off the delay on the machine and she had not done that.  The complainant confirmed that she understood the significance about flags and alerts.  In the year and a half as a Line Lead she could remember 3 occasions where this had happened and she had escalated it to the supervisor verbally.  She recalled being there when the supervisor asked the technicians if they knew how it was turned off but they did not.  The complainant gave evidence that she is on the line 80% of the time but there is a lot of paperwork also involved.  The complainant said that she did not go over the level of the supervisor as the issue was not a continuous issue and it occurred on random occasions and was not continuous.  The complainant submitted that she did not believe she had done anything wrong and did not know that she had anything to worry about.  She was not offered the Employee Assistance Programme.  The complainant said she was angry when she saw in the report that she had not escalated the issue as she had and upset that Mr. A’s statement were not shared with her.  She had never heard Mr A tell operators to turn off the delay.  Under cross examination the complainant denied that principles of natural justice had been applied.  The complainant confirmed that the EAP is mentioned in the disciplinary policy.  The complainant confirmed that her training was up to date and that she could not recall if she had ever read the email sent in August 2018 as she was on annual leave but that it should have been communicated to her on her return. 

The complainant gave evidence regarding efforts to mitigate her loss and that she secured employment in January 2020 through an agency in a temporary capacity.  Thereafter, she started working in an organisation in September 2020.  She said that she received more intensive training for about 6-8 weeks compared to when she moved into the role at the respondent.  She submitted her gross at the respondent was €775 which was higher than her current gross and provided details of other losses.  She submitted that her original form said that she sought reinstatement by way of redress but she is very happy where she is and her preference is now compensation if she is successful.  Under cross examination, the complainant confirmed she did not seek a role on a higher rate of pay since her dismissal as she secured work in January and that she was not permitted to apply for a role at a more senior level within her current employer.

Evidence of Ms Mullins was that she is a member of SIPTU and accompanied the complainant at the meetings to support the member and take notes.  She said that she made representation on the complainant’s behalf for Christmas bonus when a decision was made to dismiss.  Ms Mullins did not recall any mention of alternative sanction for the complainant other than dismissal and that she was not aware of a previous recall around the issue.  Under cross examination when asked if she ever phoned her manager with queries she replied that her manager had phoned her once regarding a shipment.  She said that any escalations that she has made has been through her supervisor.

The complainant was dismissed and submits that the dismissal was unfair.  The respondent submits that the dismissal was not an unfair dismissal.

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 is 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.

Section 7 of the Act, in relevant part, makes provision as follows:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had….

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal 

For most of the first day of the hearing, submissions were read and Mr Callan gave some evidence which mostly pertained to how production operates. There was no provision in relevant statue for evidence under oath/affirmation at the first hearing.  At the second day of the hearing and with no objection from parties and although some differences, there was no serious and direct conflict in the evidence about production operations.  Mr Callan then proceeded with the remainder of his evidence under affirmation.  This evidence on Day 2 and thereafter, pertained to the investigation that Mr Callan carried out and was under affirmation. 

The investigation report that was issued to the complainant determined that the complainant:

“did violate the Disciplinary and Grievance Procedure HRP052 and an act of gross misconduct occurred”. 

The investigation report also referenced another “major breach of procedure” by the complainant pertaining to rotation of employees. 

The complainant’s letter of dismissal issued by Mr Fahy sets out the complainant was dismissed for:

“wilful disregard of a known quality process…and allowing potentially faulty product to pass through…This unethical behaviour has led to a complete breakdown of trust in the employment relationship and is considered an act of gross misconduct”.

It was not in dispute that the machine ran with a delay turned off.  The delay is necessary to ensure that an operator takes the time needed to examine product before passing the product on.  It does not appear to have been established who turned the delay off.  The respondent submitted that it was not a simple matter to turn the delay off and it would appear that it required detailed technical knowledge of the information technology files.  I note that this file is now protected by a password to prevent someone turning off the delay.  The complainant submitted that the machine ran on occasion with the delay turned off but that she never turned it off and brought it to the attention of her supervisor, Mr A, and technicians when it occurred and that no scrap loss was incurred as a result of the delay turned off.  The respondent submits that the complainant operated a machine knowing the delay was turned off, did not escalate appropriately and while there was no scrap cost to the company; operating in this manner could have had serious ramifications for the company and she was, therefore, dismissed. 

It was not in dispute that the complainant and 3 others were investigated and dismissed, including the complainant’s supervisor, Mr A.  Mr A subsequently brought a complaint of unfair dismissal against the respondent to the WRC but it was not upheld.  It was not in dispute that technicians were not interviewed as part of the investigation into the complainant’s version of events, namely that the complainant informed them that the delay was turned off.  Mr A was provided with a copy of what the complainant said about Mr A during the investigation, but the complainant was not provided with a copy of what Mr A said about the complainant.  Witnesses for the respondent said that they did not believe it was necessary to provide any such statements to the complainant as she had accepted that she had knowingly worked on the machine with the delay turned off.  I note that the investigation became somewhat ‘distracted’ by inquiries into whether the complainant had followed appropriate procedure pertaining to rotation of operators, and while a distraction, it would mostly appear the complainant’s dismissal was unrelated to rotation. 

The Court in Looney v Looney UD 843/94 set out that it is not the function of the Court to establish guilt or innocence, but rather to determine whether a reasonable employer in the Respondent’s position would have dismissed or if dismissal was within the bounds what a reasonable employer would do. 

 In re Haughey ([1971] I.R. 217), O'Dalaigh C.J. stated that: “Article 40 s 3 of the Constitution is a guarantee to the citizen of basic fairness of procedures”. The principles in Haughey were implied into contracts of employment by the Supreme Court in the case of Glover v BLN Ltd ([1973] I.R. 388). Walsh J, giving the majority judgment for the Supreme Court in Glover v. BLN Limited[1973] IR 388, also set out:-  

"This court in re Haughey[1971] IR 217 held that [Article 40.3] of the Constitution was a guarantee of fair procedures….. It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures. It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.”

The protection to be afforded to a person whose conduct is being investigated may vary depending on the particular circumstances.  Furthermore, Frank Shortt v Royal Liver Assurance Limited (1998, 3571), sets out that the disciplinary process may not be perfect, but it must come within the perimeter of what could reasonably be considered a fair response by the employer in the circumstances.  In Mooney v An Post ([1994] E.L.R. 103), the Courts point out that the requirements of natural justice may differ in each case but as in Glover v BLN Ltd [1973] IR 388 (and referenced in Kolsaran Concrete Kilsaran International Ltd v Vitalie Vet [2016] 27 E.L.R. 237) there are some fundamental requirements of fair procedures that:

“cannot be dispensed with, regardless of the particular circumstances that arise in an individual disciplinary matter. They include: 

(i)                  the requirement to make the employees who is the subject of the investigation aware of all the allegations against him or her at the outset of the process;

(ii)                (ii) the requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process;

(iii)               and (iii) in the event that an allegation against the employee is upheld, any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.” 

The respondent submitted that the complainant failed to adhere to an email that was submitted on 9th August 2018 from Ms B Site Quality Manager.  It would not appear that the respondent made appropriate enquiries as they did not seem to be aware that the complainant was in fact on annual leave when this email was sent and this came to light at the appeals meeting.  I note also that the letter sent to the complainant advising that her appeal had not been upheld is very brief.  Although reference is made in the minutes of that appeal to the complainant’s annual leave, it is not obvious from the letter of appeal that Mr Doherty gave sufficient weight to this additional information.  It is of concern also that if employees overwriting the delay was considered so serious in August 2018, then why appropriate follow not was not made with absent employees, such as the complainant, and/or why the referenced review in a months’ time did not appear to take place.

The supervisor Mr A was dismissed, and it is notable that he was provided with a copy of the complainant’s statements during his investigation, that he held a more senior position than the complainant and that he did not appear to have escalated the issue, unlike the complainant.  The complainant was not given a copy of all witness statements, such as Mr’s statement; was a Line Leader, a level just above an operator; had escalated the issue, despite what the investigation report outlined and suffered the same penalty as the supervisor.  There does not appear to have been sufficient weight given to any extenuating circumstances either in the investigation report, letter of dismissal or letter following appeal.  Furthermore, the respondent did not appear to have interviewed the technicians that the complainant escalated the matter to, and it is extraordinary that the complainant only found out at the hearing that the respondent did in fact, believe that she had escalated the matter.  Despite the respondent’s disciplinary procedure, setting out that “extenuating circumstances should….be taken into account,it would appear that the respondent proceeded down a tunnel of dismissal for all those involved and would not be swayed from that tunnel.  

The investigation report determined that “an act of gross misconduct has occurred”, and the only additional information provided was around alleged failures of the complainant regarding rotation, which was included, it might appear, to copper fasten a decision that had already been made, to dismiss the complainant.  The respondent’s disciplinary procedures provides that 

“in the instance of gross misconduct an employee will be dismissed without going through the previous stages of the procedure”.  

I note that this procedure uses the word “will be dismissed” and not “may” be dismissed.  This suggests that once the investigative team determined gross misconduct, then all those subsequently involved in the disciplinary and the appeal, continued this path.  

The disciplinary policy Stage4 provides for “Suspension without pay” in “exceptional circumstances” and oral evidence given was that demotion has occurred in the past as a form of disciplinary action.  There did not appear to have been any consideration of anything other than dismissal and the respondent failed to follow their procedures scrupulously when conducting their investigation, disciplinary and appeals process by their failure to make the complainant aware of all the statements, and failure to give consideration to all the circumstances.  I was struck by the complainant’s evidence that she believed the focus of the investigation was whether she had been personally responsible for turning off the delay and there was nothing to suggest that she had and she believed it was a random issue, that she had escalated to somebody more senior to her.  

Despite some ambiguity in the complainant’s evidence at times as to whether she did or did not knowingly operate the machine with the delay turned off; I am satisfied that the complainant must have knowingly operated the machine with the delay turned off.  While the complainant may not have received the email of 9th August 2018 owing to her annual leave, and indeed there might have been more appropriate methods to communicate such a serious message other than through email; I am satisfied that the complainant was aware that running the machine with the delay turned off was not appropriate.  If she did not believe so, she would not have escalated the issue to her supervisor and the technicians.  I did not get the sense that a culture of “stopping the production line”, is embedded in the organisation but it would appear the complainant did not act appropriately by continuing to operate the machine with the delay turned off. 

Having heard all the submission and evidence I determine that the dismissal was unfair as in all the circumstances the respondent did not “follow…..procedures scrupulously when conducting a disciplinary process” andI do not find that dismissal was “proportionate to the complaint that has been substantiated”.   The complainant, however, by continuing to operate the machine with the delay turned off did contribute to her own dismissal.  

Having considered the remedies available I do not believe reinstatement or re-engagement is a practical option and that compensation is the appropriate redress in this complaint. In terms of efforts to mitigate her loss, the complainant secured employment quickly, albeit in a temporary capacity initially and on less pay than she previously had.  I also note that should she have remained with the respondent she would have had a period of 5 weeks with reduced earnings owing to Covid payments.  Furthermore, I note that the respondent paid the complainant 2 weeks additional payment following her dismissal.  In all the circumstances I find that the dismissal was unfair and I award the complainant 12 weeks compensation of €9,300 which I reduce by 10% owing to the complainant’s contribution to her dismissal and therefore, the award of compensation is €8,370.

In all the circumstances I find that the dismissal was unfair and I award the complainant 12 weeks compensation of €9,300 which I reduce by 10% owing to the complainant’s contribution to her dismissal and therefore, the award of compensation is €8,370.

Unfair dismissal, procedure, extenuating circumstances, contribution to dismissal