Complainant

Respondent

Parties

Irwin  Shaw

Schivo Medical Limited

Representatives

Seán Ormonde Sean Ormonde & Co./Rep Mr Breheny Solicitor

Sinead Morgan Shannon & O'Connor Solicitors LLP/Rep Ms Kiiwana Ennis BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035788-001

21/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00035788-002

21/04/2020

This case concerns the dismissal of the complainant for allegedly failing to follow work instructions.

The company manufactures products for the life sciences and medical device industry.

The products relevant to this case are used in critical medical settings that require zero defects. The  manufacture of the products requires human judgement; operator intervention to correct defects and inspection of the product to ensure that there are no defects. These processes are as detailed in standard operating procedures and work instructions.

The company had received a number of customer quality complaints that potentially could have led to it losing a large part of its business.

The company responded by communicating with all staff about the critical nature of the product; the adherence to procedures and work instructions and where appropriate retrained staff.

The complainant worked as a deburr operator. In October 2019 the complainant was informed by his supervisor that there were quality defects in work he completed and at the meeting he committed to be more vigilant.

The complainant underwent training on the exact work instruction to be followed. Step 6 on that instruction relates to the use of a blade to eliminate burrs. A scratch or burr is visually identified by eye or with the assistance of a magnification tool. The complainant contended that he was never shown how to complete step 6 with regard to the use of the blade; he had requested better light and or a magnifier that would more easily assist with seeing the scratch marks and the burrs. This request was not actioned by management.

The product when it has scratch marks or burrs should be polished and the edges removed by use of the blade. Failure to do this means that the product poses a real health risk to a vulnerable patient.

It is not disputed between the parties that this is required and crucial that all burrs are removed from the product.

After receiving training on the approved work processes and procedures to be followed;  more defects were identified on batches that he had produced and a formal investigation commenced. In turn that gave rise to a final written warning being issued to stay on his file for 1 year. That warning was issued on or about the 3rd February 2020.

On the 11th February 2020 the complainant signed an improvement agreement and attended deburr retraining.

On the 5th March 2020 more defects were identified. They occurred in 3 batches out of 7 and involved up to 10% of a batch. A batch has over 200 parts. The production of these batches had taken place over several consecutive days in February 2020.

The complainant stated at the hearing that he scrupulously followed the work instructions. The burrs that were identified by quality could not be seen visually and were minute. In fact quality had allegedly stated that to him.

The complainant was at a loss to understand why the parts were not sent back to him for rework. That had always been the practice up to this time. The team inspector hadn’t identified the burrs.  Quality had held back several batches when the practice was always to return the parts for rework.

The work instructions call for the parts that have burr marks to be identified and detailed. The complainant stated that this was not the practice, these parts were reworked in the area and then passed on for quality inspection. This was the practice that was overseen in the area by the complainant’s supervisor.

An  investigation concluded that the complainant had failed to follow the work instruction. The disciplinary hearing that followed concluded that the failure to comply with the work instruction gave rise to the burrs. Allowing for the fact that he had received a previous written final warning for the same issue and this was more serious, this amounted to serious gross misconduct and the company would terminate his employment.

The complainant was given the right to appeal. This appeal also concluded that the dismissal would stand.

The complainant stated at the hearing that he accepted the first final  warning and knew that it was very serious. Because of this he took extra care and always carried around with him the work instructions that he followed meticulously.

The complainant alleged that the second investigation was procedurally flawed. At no time was he presented with the defective parts to examine. The parts were referred to as being in a tray or batch; however, they were not physically taken out of the tray and shown to him.

He believed that he had followed the work instructions meticulously. He knew that the final written warning was on his file. The inspector in the work area failed to identify the burrs or scratches. He alleged that he was told by the quality inspector that the scratch marks were difficult to see. Later that account was changed.

The practice in contrast to the policy was always to rework parts when identified by any colleague in the work area or by quality. He was being scapegoated as others were not treated to such a harsh sanction.

The sanction in any case was disproportionate to the wrong committed.

He had requested better magnification tools and this was not acted upon.

The company was more than fair and reasonable.

The dismissal must be viewed having regard to all the circumstances and no one shortcoming can prove fatal based on the overall fairness and reasonableness demonstrated by the employer.

The fact is the investigation was not limited to one individual. It involved the work team.

The procedures clearly stated what was required. The complainant had received ample opportunity, training and time to improve. The burr marks in the complainant’s work batches were of such frequency it meant that he wasn’t concentrating and was  signing off on defective product. This could be catastrophic. He had been informally warned; formally warned and on a final warning, he had been trained and to expect more latitude based on the patient and business risk that this would create was not reasonable.

Procedurally the evidence presented to the complainant was never challenged. The batches could have been visually inspected. The quality systems and checks that took place are underpinned by international standards. The complainant accepted that no cover up or conspiracy existed and no fabrication of evidence had occurred. He accepted that the burrs and defects were identified. He stated after the event that they were difficult to see.

It is also clear based on the facts that this is not about  a lack of time to complete the task; it is about personal responsibility and accountability to do the tasks properly. The consequences of such a failure are potentially life threatening.

There is no substance in the allegation that the batches had burrs undetectable to the eye and most definitely were clearly visible under the magnifying tool.

The company followed a fair process, carried out two separate investigations; trained the complainant and had provided ample opportunity for him to improve. He could do the job, but failed to carry out his responsibilities consistently and thoroughly. The product is a medical device used in critical care situations. The level of defects were so great that it demonstrated a failure to comply with required work instructions; not just on one occasion but on many occasions and over a period of  several days that created a risk for the business and to patient care. It was not a matter that could be ignored.

The employee was not scapegoated; others also were investigated and where appropriate were disciplined.

The conduct of the employer must be viewed in the round and when having regard to the circumstances and actions of the employer over several months this decision was fair.

The presumption of unfairness must be rebutted by the employer.

The employee has stated that he was scapegoated. On the evidence others also were disciplined based on the same circumstances.

The employee stated that he never saw the defective product. However, he did not challenge that they existed or the veracity of the quality inspections that identified them.

The complainant does contend that the manufacturing process is flawed by relying on human intervention and inevitably a second line of defence or protection must exist to prevent defective product. The machine operation is not perfect and the burrs stem from that process.

The complainant stated that the work instructions and particularly step 6 involving the use of a blade to eliminate the burrs were not adequately explained to him.

The practice, it is argued always was to fix the product after any quality defects were identified at any stage of the process and such defects would not be recorded at the work area. Defects could be expected to occur.

The company had gone to extraordinary steps to stop bad practice. The work instructions after the first investigation were clarified and training provided.

The fact is that the volume of defects that occurred in February 2020 were significant and occurred over several days. Some batches were perfect. However, the number of defects in 3 batches was at a level that on the balance of probabilities clearly show that the work instructions were not being complied with.

The procedural deficit of not showing the actual  defective product to the complainant is at face value a flaw in the procedure to present the evidence to him so that that he could comprehend the magnitude of the mistakes and errors. However, he was on a final warning, he had been shown what he had to improve, he was on a formal improvement programme and the burrs on the product did exist and were not fabricated. These burrs were on product that he had approved as defect free.

The argument that the process is inherently flawed and prone to mistake and human error and must be underpinned with other quality checks may account for some defects; but on the balance of probabilities the number of defects in 3 batches out of 7 are not incidental mistakes or caused by a process flaw. It is due to operator failure to carry out the work instruction a lot of the time.

What turns the argument in favour of the employer is the scale of the defects over several days. This was not a once off occurrence but a serious and frequent failure to complete the deburring task properly.  The reliance on the operator to be always 100% perfect appears very onerous at face value. But this was not an incidental failure or a once off failure. The system of inspection at the work station by another operative and then by quality after that can correct such mistakes. This was a failure on a much greater scale and that does amount to a failure to consistently comply with the work instructions. The consequences of that failure to consistently fail to deburr is very serious both for the patient and for the business.

Redmond in Dismissal Law 3rd edition states at 13.14:

‘Perfect’ procedural justice has been defined as the ideal of a procedure guaranteed to lead to an outcome where justice is identified by some independent criterion. 24 The balance between substantive and procedural justice becomes most crucial in relation to the reasonableness of an employer’s decision to dismiss. Increasingly, procedural justice is being taken for granted by all concerned and the WRC’s function is to decide how exacting its tenets shall be. An employer will be regarded as having fairly dismissed an employee only if it both gave the employee the full benefits of a fair procedure and accorded him his just deserts or established a functional necessity for his dismissal. Section 6(7) of the Unfair Dismissals Act 1977 further emphasises the importance of reasonableness. In determining if a dismissal is unfair 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, and

In this case the employee is already on a written warning. The second incident based on the number of defects is based on a fact find and investigation; a disciplinary hearing and an appeal referral. The complainant while not provided with the defective parts does not challenge that they were detected and is clearly on notice that there are many such defects.

 What he does rely on is the fact that he followed the work instruction and the burrs were so minor that they were very difficult to see; his work area inspector never identified them and also that he was told that the defects were in any case hard to see.

The complainant stated that the sanction was too severe and that he should have been given one last chance. That is tacit admission that there is a failure to correct.

The company state that they can’t have trust and confidence in the employee as he does not accept that he was responsible for not correcting the defects and for allowing so many defects to leave his work area.

There is a failure in the investigation process in not showing the complainant the actual parts with the defects. However, importantly it is not disputed that the defects existed. There is also a conflict in evidence between the complainant and the quality inspector’s records. One party stating that the defects were difficult to see and that was also the case with the quality check. The quality records do not corroborate that account. The presumption of unfairness must be rebutted and the failure to show the defects to the complainant and also to rebut the complainant’s statement and that of another work colleague who both said that quality had informed them that the burrs were very difficult to see are deficiencies.

 However, what I must address is having regard to all the circumstances and facts presented and on the balance of probabilities was the dismissal fair? The complainant had been informally spoken to about his failure to comply with the work instructions. The complainant then was placed on a final written waring after more defects were not removed in parts that he had worked on and his failure to follow work instructions. The complainant was on a performance improvement programme. The final  pattern of defects that existed in his work;  were detected over several batches and also were very high in number. The fact that such defects existed was not denied.

And at 13.16 Redmond states:

The WRC will scrutinise an employer’s conduct very closely where the employer is faced with a problem requiring investigation. In Dunne v Harrington 26 its predecessor, the EAT, declared that an employer may investigate either:

‘(a) personally in a fair and reasonable manner, ie as fully as is reasonably possible, confronting the “suspected” employee with “evidence”, checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings/confrontations if the employee requests it or a union/management agreement requires it and to produce “counter evidence” 27 or he may:

(b)rely on the reports of others. If he does so without confronting the accused employee with the contents of the same, without hearing, investigating and giving value to his replies, giving him reasonable opportunity to produce rebutting “evidence”, and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice, viz, that the other party (ie, the employee in these circumstances) should be heard. In short, an employer acting on the reports of third parties and not acquainting the employee with same does so at his peril if it results in the dismissal of that employee.’ 28

There are procedural defects in the investigation by not actually presenting the physical evidence to the complainant. However, that must be countered by the tacit acceptance at the hearing that there was a problem in the batches and also that he did not refute that burrs existed on the product. If the complainant had completed the work instructions as he stated he did;  there would be little or no defects. There is no questioning  by the complainant of the veracity of the quality documentary evidence that detail a very large number of defects.

And at 13.22 Redmond cites:

The High Court in Loftus and Healy restated the issue thus. It was not a question of whether the ex-employees were deprived of procedures to which they were entitled but:

‘whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish ... [the basis of its dismissal] as the whole or the main reason for and justifying their dismissal

On balance the employer has established based on the balance of probabilities the basis for dismissal which was the recurring failure of the complainant to follow work instructions and to use the blade as shown to remove scratches and burrs. This posed a very serious business risk and also a patient risk.  The employee was on a final written warning. The evidence does prove that he did not follow the work instructions over several days despite only recently being placed on a final written warning. This omission  in turn gave rise to a very large number of defects. In turn those defects posed a real risk to patient care and a business risk. The employee was given ample opportunity to improve and adequate training. The failure of the employer not to show the actual product with the defects did not negate the fact that the defects existed and that was also accepted by the complainant. As the fact that those defects did exist and their existence was not questioned and were independently verified; meant that the operator failed to carry out the work instructions again. Not physically observing the defects  in a medical device company with very sophisticated quality systems that captures such defects was on the balance of probabilities the main reason why the complainant never challenged the existence that those defects existed. The decision to dismiss was objectively  and fairly made and had regard to other important facts such as the final written warning; retraining; a formal improvement programme and the threat to  the business of such volume of defects existing. Having regard to all of the circumstances in this case I determine that the conduct of the employer was reasonable and the decision to dismiss was not unfair.

CA-00035788-001 Unfair Dismissal

On balance the employer has established based on the balance of probabilities the basis for dismissal which was the recurring failure of the complainant to follow work instructions and to use the blade as shown to remove scratches and burrs. This posed a very serious business risk and also a patient risk. Having regard to all of the circumstances in this case I determine that the conduct of the employer was reasonable and the decision to dismiss was not unfair. The complainant was not unfairly dismissed.

CA-00035788-002 Minimum Notice

Section 8 of the Minimum Notice & Terms of Employment Act, 1973 provides for:

Right to terminate contract of employment without notice.

8.— Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.

The complainant was already on a final warning for gross misconduct and the employer was within its right to dismiss the employee for gross misconduct. This claim is not well founded.

Unfair Dismissal-Fair Procedures- Proportionate