Employee

Employer

Anonymised Parties

A Pharmacy Technician

A Pharmacy

Representatives

Hannah Cahill, BL

David Gaffney, Solicitor

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00035225-002

13/03/2020

The employer runs a number of pharmacies around Ireland and the employee commenced as an intern in a Munster store on May 20th 2019.  The internship was arranged through a youth employment scheme run by the Department of Social Protection and was for three months.  On August 19th, the employee was offered a permanent job, subject to nine months’ probation.  She was paid €10 per hour and she worked 40 hours per week.

On October 17th 2019, the employee attended a probation review meeting with her supervising pharmacist, who I will refer to as “Mr F,” at the end of which, Mr F indicated that improvements were required concerning her attitude to the manager and pharmacist, her accuracy, responsibility, accountability, initiative and drive. 

On October 30th, the employee attended a probation review meeting with the HR manager and Mr F, who had carried out the first review meeting on October 17th.  For reasons related to mistakes she made on the drug delivery system for nursing home residents, known as “the Tosho machine,” the employee was told that she had not passed her probation and her employment was terminated.  She was too anxious to attend work the following day and she did not return to work, having been certified as unfit until December 9th 2019.

The employee has submitted a grievance concerning the process that ended with her dismissal.  She claims that her former employer failed to provide her with a proper disciplinary process or hearing and that she was not permitted to ask questions or to present her defence.  She claims that she was denied the right to representation and that the employer did not take account of her replies to the allegations made against her.  Finally, she claims that the sanction of dismissal was disproportionate.

Summary of the Written Submission

During her internship between May and August 2019, one of the pharmacists in the store, who I will refer to as “Ms P,” acted as a mentor to the employee.  The employee said that Ms P indicated that her work on the Tosho machine and on all aspects of her work in the pharmacy was satisfactory.  On the strength of her internship, she was offered a permanent job.

The employee and two other employees who were not qualified pharmacists were trained on the Tosho machine.  In her submission, Ms Cahill said that the employee was given a general overview by the machine installer but that her training was scant and informal.  She said that the employee was instructed to watch her colleagues working on the machine and to ask questions.  Her duties on the machine were to fill cannisters with drugs, to complete patient orders issued by the pharmacy technicians, to order medication, to clean the machine and to change the ink and paper for the individual pouches.

In her submission, Ms Cahill said that most of the employee’s time was spent on general duties, such as dealing with customers, ordering stock and keeping the displays clean and in order.  She also carried out stock control, answered the telephone and cleaned the pharmacy premises.

In September 2019, the employer’s stock manager visited the pharmacy and suggested that the employee should spend more of her time working at the counter on sales and assisting customers.  The manager proposed that the employee should attend a sales course in March 2020.

On October 7th 2019, the area manager visited the store and instructed the staff not to order drugs directly from the United Drug website.  On October 14th, when this manager returned to the store, the employee had the United Drug website open along with the correct website for ordering drugs.  The employee said that she was checking availability before she ordered products through the standard website.  The employee did not consider this instruction as a criticism or a warning.

On October 17th, the employee attended a probation review meeting with Mr F.  It is her view that Mr F was not the appropriate person to carry out her review, as he was new to the store, having joined in September.  At the meeting, the employee told Mr F that she had not had an induction, despite having commenced in her role on August 19th.

On the review document, the employee said that there was a mismatch between her perception of how she was getting on compared to Mr F’s view.  Mr F noted that the employee was exceptional in terms of her attendance, her attitude to co-workers and her flexibility.  She met expectations regarding her appearance, conduct, communication skills, health and safety, mobility and speed.  Mr F said that she needed to better understand the role of the pharmacist.  He said that she needed to demonstrate consistency regarding her performance and that she needed to take ownership of tasks.  Finally, he said that she needed to recognise what work needed to be done.  Mr F conceded that there were times when the employee was pulled between jobs because of the conflicting priorities of the two pharmacists and he acknowledged that the inconsistencies that emerged was an outcome from these conflicts.

The review document also set out next steps and objectives, which were summarised as doing the same task every time to the same standard and taking action to get work done, such as putting away product when it is delivered to the store.  Mr F signed off the document saying, “Improvement needed to meet standard required.  Employee was very receptive to the issues discussed and seems to have taken feedback in a positive manner.”  Following the meeting, Mr F gave the employee a list of the things that she needed to do.  The employee claims that, because the list was on a scrap of paper, and because of the relatively casual approach to her review meeting, she did not think that her job was at risk.

In her submission, the employee said that, on October 29th, the HR manager asked her to meet him the next day for a chat.  Later that day, The HR manager sent the employee an email with a letter attached indicating the issues to be discussed at the chat: 

§    Ordering medication through the United Drug website;

§    Failure to carry out the role of Tosho operator to the level expected;

§    Carelessness causing potential medication errors;

§    Failure to follow management instructions.

The HR manager told the employee that she had the right to be accompanied at the meeting, but in her submission, Ms Cahill said that the employee had no time to find someone to accompany her because she did not read the HR manager’s email until the day of the meeting itself.  The HR manager attached four documents to the email:

1.               A copy of an email on Saturday, October 5th from Mr F to the managing director of the company, in which Mr F set out his concerns about mistakes that the employee made on the Tosho machine on Friday, October 4th.

2.              A copy of an email on Tuesday, October 15th from the area manager to The HR manager, in which she said that she had to speak to the employee about her instruction not to order items from United Drug’s website.

3.              A copy of the probation review form dated October 17th 2019.

4.              A copy of an email from Mr F to the HR manager dated Tuesday, October 29th in which Mr F listed his ongoing concerns about the employee’s performance.

At the meeting on October 30th, Mr F attended with the HR manager.  The employee didn’t ask anyone to accompany her, although she was advised to do so by Mr F.  Despite the employee reporting that she felt she was doing well in her job, the HR manager told her that she had failed her probation.  She was informed that the employer had lost a contract with a nursing home due to mistakes she made on the Tosho machine.  This had not been raised previously with the employee.  The HR manager told the employee that she could stay in her job until the end of the year, but that he couldn’t guarantee this.  He also said that he would help her to find another job but, Ms Cahill said that the HR manager couldn’t guarantee this either.

The next day, the employee sent an email to the HR manager, asking to meet him again.  She said she was a bit in shock the day before, and that she would like a meeting to discuss the allegations regarding her performance that led to her dismissal.  She said that she would like to have someone at the meeting with her.  The HR manager told the employee that he had written to her to confirm that her employment was terminated and he asked her to provide him with a written submission with additional information that would allow him to reconsider the outcome of the meeting the previous day.  He asked her to provide this submission by 5.00pm on Monday, November 4th.

The HR manager had written to the employee on October 31st, confirming that she would be dismissed six weeks later on December 12th.  It was the employee’s opinion that The HR manager had no interest in engaging with her on the issue of a review of the decision to dismiss her.  She had planned to take holidays from November 3rd to 7th.  Before she went on holidays, she wrote to The HR manager telling him that she was not satisfied with the decision to terminate her employment and that she would contact him in due course regarding how she wished to proceed.  Due to stress and anxiety, she did not return to work and she sent her employer a medical cert stating that she was too ill to attend work from November 8th to December 9th 2019.

The Employee’s Statement

The employee said that she was excited at the prospect of working in the pharmacy, and she thought it could lead to a career in the pharmacy business.  She said that she had worked in a certain department store after leaving school and she got the internship through the Department of Social Protection’s Youth Employment Scheme.  She said that she felt that the internship went well.  She said that she did mainly OTC duties.   The person who generally supervised her was Ms P, who, the employee said, seemed happy with her.

The employee described her duties on the Tosho machine, which is for packing bulk orders of medicines for nursing homes.  A pharmacy technician sends information to the machine, and the employee said that she had to click on a page to produce the medicines that were ordered.  She said that errors were identified on a small screen at the front of the machine, and they could be fixed manually.  She said that Ms P would usually check the order and sign it off for sending to the nursing home.

The employee said that she got no formal training on how to use the machine and that “a man from Dublin” came to the shop to show her how to use it.  She worked with a colleague who had more training than her on the machine.

To manage errors on the machine, the employee said that the managing director introduced a logbook.  The purpose was to identify problems and why they happened.  She said that this logbook was not in use when she was working in the pharmacy.

The employee described her other work in the shop, and she said that she preferred OTC work.  She said that this was easier than working on the Tosho machine and that she preferred being “out the front.”  In September 2019, she said that she was advised that she would be sent on a training course in March 2020, to prepare her to do more over-the-counter work.

The employee described the visit to the shop on October 7th 2019 by the area manager, who told the staff not to order from the United Drug website.  On October 14th, the area manager called to the shop again when the employee was putting through an order.  She had the United Drug website open, but it seems that the manager assumed that she was ordering stock from United Drug.  The employee said that she was checking availability.

The employee described the probation review meeting she had with Mr F on October 17th.  She said that Mr F “seemed to think I was doing less of a job than what I thought.”  She said that he gave her three out of four for most things, but he noted that improvements were required in some areas.  Following the meeting, the employee said that Mr F wrote out a list of duties that she had to do.  These were related to working at the tills and general upkeep of the shop.

The employee said that the HR manager phoned her in the shop on October 29th.  He said that he would like to have a chat with her.  The employee said that The HR manager didn’t come to the shop very often, but he didn’t say what the chat was about.  She said that she read The HR manager’s email the following day.  It was headed, “probation review” and listed four allegations regarding her performance.  The letter said that she had a right to be accompanied at the meeting.  The employee showed Ms P the letter and she asked her if she was in trouble.  She said that she didn’t bring anyone to the meeting, because she didn’t think it was serious.  The HR manager went through the four allegations and told her that she had failed her probation and that she would be let go.

Regarding the errors made on the Tosho machine on October 4th, the employee said that the HR manager told her that they had lost a contract with a particular nursing home because she made mistakes.  The employee said that the error with the nursing home order was discussed at her probation review meeting on October 17th.  She said that she fixed this error with help from Ms P and she told Mr F this.  She said that she doesn’t remember the second error.

Addressing the fact that she was instructed not to order products from the United Drug website, the employee said that the area manager thought that she was ordering from that website, when she was checking the availability of the product.

At the end of the meeting on October 30th, the employee said that the HR manager offered to buy her lunch or he gave her the option of going home.  She said that he told her that he would help her to look for another job and that she might be required to stay on at work until December 31st.

The following day, the employee said that she sent an email to the HR manager, asking for another meeting.  He replied, asking her to send him a written submission.  She said that she was going on holidays which had been planned well beforehand and she hadn’t got time to write a submission.  She didn’t go back to work because she was on sick leave.  She said that the dismissal affected her and caused her stress levels to increase.  She had high blood pressure and suffered from anxiety.

Response to Questions from the Employer’s Representative

The employee agreed with Mr Gaffney that she was employed as a Tosho operator.  During her probation, she said that she didn’t work a lot on the Tosho machine, but that she watched others working on it to see how it was done.  She agreed that she was very familiar with how the Tosho machine worked.

At the start of her internship, the employee said that the man from Dublin who installed the Tosho machine was in the pharmacy for a few days.  There was also a colleague who was more experienced than her and she asked her questions about how to use the machine.  She said that she often asked Ms P questions, although it was not her job to work the machine.

Mr Gaffney referred to the notes of the probation review meeting that the employee attended on October 17th.  On the final page of the notes, she wrote, “Willing to work on things discussed.”  Mr Gaffney asked the employee if she considered contacting the HR department about her review.  She said that she had spoken to HR in the past plenty of times, but that she didn’t speak to anyone in HR about the Tosho machine.  If she had a query about Tosho, she said that she would have spoken to Ms P and if she couldn’t fix it, they would contact the technician from Dublin.

The employee said that she had a good relationship with Ms P, and that she was always happy with the answers she got from her regarding how to use the Tosho machine.  However, she said that she got no formal training on the machine, and that she got the “bare minimum training” compared to her colleague, who went to Dublin for two or three days to train on the machine.

Mr Gaffney referred to documents in the employer’s book of papers which list standard operating procedures (SOPs) that the employee was trained on.  SOP 822 is titled, “Transferring patient data to the Tosho machine” and the employee has signed that she completed this training.   The employee asked, “how can you be trained by just reading something?”  She said that she would have liked the same kind of training that her colleague got.  Mr Gaffney reminded the employee that she was given SOP documents to show her how to work the machine.  Her colleague helped her.  Her manager, Ms P helped her and the technician from Dublin spent a few days in the pharmacy.  The employee said that she didn’t think this was formal training.

Mr Gaffney asked the employee why she didn’t ask for more training.  He said that, by not asking questions, it is presumed that she understood how to work the machine.  The employee replied that she doesn’t think that what she got was formal training.  Mr Gaffney asked the employee if she ever mentioned this to anyone.  She said that SOP documents were issued, and if she needed help, she would ask Ms P.

Addressing the outcome of the review of her probation on October 17th, the employee agreed that the primary function of her job was as a Tosho operator.  She agreed that, if there was a problem with how she worked on the Tosho machine, that this meant that there was a problem with the biggest part of her job.  Referring to the hand-written notes of Mr F on the probation review document, Mr Gaffney asked the employee if she thought that there was a difference between how she thought she was doing and how Mr F thought she was doing.  The employee replied that the notes show the view of Mr F.  She said that it was unfair for him to do her probation review because he was only working in the pharmacy for a week or two and Ms P knew her better.  She said that she would have preferred if Ms P had done her review.

Mr Gaffney went through Mr F’s comments on the review form.  One of the issues was the employee’s attitude to the manager and pharmacist.  The employee said that she only worked with Mr F for two weeks and that he didn’t know how she worked.  Mr Gaffney reminded the employee that she reported to Mr F.

On the review form, there is a column where the employee rates their performance and the manager also provides a rating.  Across 14 performance headings with “5” as the top mark for each one, the employee gave herself a total score of 61 out of a possible 70 marks, whereas Mr F gave her a score of 40.  The employee said that she thinks Mr F gave her a low score because he didn’t work with her for long.  She said that she asked Mr F about the low score and this is where the list came into play.  The employee told Mr F that she was willing to work on her performance and he listed next steps and objectives.  The employee said that she accepts that there were things that she could have done better and that there was always room for improvement, but she said she didn’t get any formal training.  Mr Gaffney pointed out six areas where the employee gave herself a score of “5,” indicating that there was no requirement to improve.  Mr F did not concur with her “5” rating on any of these performance measures.  The employee agreed that Mr F had a different opinion. 

Mr Gaffney asked the employee about her description of the phone call from the HR manager on October 29th 2019, in which she said that he asked her if he could meet her for “a chat.”  The employee said that she didn’t think the meeting was important.  On the day of the meeting, the employee asked Ms P if she was in trouble.  She agreed with Mr Gaffney that, when she saw that the letter was about a probation review meeting, it was about something serious.  However, she said that nothing was brought to her attention to make her think that her probation should be reviewed.

Mr Gaffney referred to the four areas of concern which are listed in the letter from the HR manager:

1.              Alleged unauthorised use of ordering medication through the United Drug website;

2.              Alleged failure to complete your role as Tosho operator to the level expected;

3.              Alleged carelessness causing potential medication errors;

4.              Alleged failure to follow management’s instructions.

The employee said that she thought that the third point above was serious, the possibility that someone would think she was careless.  She said that she didn’t think she was careless.

The employee said that she spoke to the HR manager on the phone on Tuesday, October 29th and she agreed that he sent her a letter by email the same day.  She said that she didn’t open the letter until the next day.  When she read the letter, she asked Ms P if she was in trouble.  Ms P advised her to show the letter to Mr F, and Mr F advised her to bring someone to the meeting.  The employee said that she didn’t think she needed anyone at the meeting.  The HR manager then asked Mr F to come in to the meeting.

The employee said that she had no previous indication that she did anything wrong and, although she was worried when she got the email from the HR manager, in her own head, she said that she didn’t think she did anything wrong.

Mr Gaffney referred to the letter from the HR manager to the employee on October 31st in which he confirmed that her employment would end on December 12th.  For the duration of her notice, the HR manager said that the employee would work as a pharmacy assistant and not as a Tosho operator.

The employee said, “even before all this, I was told to concentrate on OTC work and other jobs.”  She said that when she finished Tosho work, she would do cleaning and sorting stock and she was always doing something.  She said that if a big order came in from a nursing home, her colleague would process the order on Tosho because she was quicker.

In reply to a question from me, the employee said that her job was mainly as a Tosho operator.  She said that it was not a role that many people in the pharmacy could do.

When she got the letter from the HR manager on October 31st, the employee said that she thought that she shouldn’t have been fired and that she thought that it was unfair that she was dismissed.  She said that she should have got the same training as her colleague on the Tosho machine.

The employee finished setting out her position regarding this dispute on November 12th 2021 and the hearing resumed on May 18th 2022 for the employer’s side to present their case.  When the hearing opened on that date, the company’s managing director said that the HR manager left the company in early 2020 and was not available to attend.  Therefore, to arrive at a recommendation regarding the dispute I have to rely on the information provided by the employee.

I do not accept as credible, the employee’s assertion that, when the HR manager phoned her on October 29th 2019, she thought that he wanted to arrange to have a “chat.”  From the email he sent to the employee, it is apparent that he referred to the purpose of the meeting in his telephone call earlier in the day.  I also find it difficult to accept that the employee did not read the email with the letter setting out the reasons for the meeting until the following day.  She gave no explanation about why she decided not to read the correspondence until just before the meeting.

The employee was clearly on notice of the purpose of the meeting.  She was also informed that she could have brought someone to the meeting with her, but she decided to attend alone.  This was clearly not in her best interest and, it is my view that the HR manager should have delayed the meeting until the employee had an opportunity to re-consider the option of being accompanied.

This deficit could have been remedied if the employee had followed through with her request to attend a meeting after her dismissal.  In effect, this was an opportunity to appeal against the decision to terminate her employment, and, although she said that she was taking advice at that stage, she did not submit any reasons why she should not have been dismissed.

In her letter of dismissal, it is clear that the employee was expected to work her notice and to remain at work for six weeks, until the middle of December 2019.  She could have used this time to demonstrate that she was capable of carrying out her job to the satisfaction of her employer, but she was absent due to illness until the day that her notice expired.

It is my view that the process that ended with the employee’s dismissal, although not perfect, was not unfair and that the imperfection could have been remedied if the employee had pursued her right to appeal.

Aside from this conclusion, it is well established that, before submitting a grievance about any matter to the WRC, to attempt to reach a resolution of the matter quickly and with the least amount of inconvenience to the parties, an employee must exhaust the internal procedures in his or her workplace.  The decision of the Labour Court in the case of Gregory Geoghegan trading as TAPS v a Worker[1] provides guidance on this matter, where the chairman stated,

“The Court is not prepared to insert itself into the procedural process in a situation where the dispute procedures have been bypassed.”

It is regrettable that the employee decided not to pursue her right to a meeting with the HR manager after she was dismissed.  As she has declined the opportunity to persuade her employer of a different course of action, I have no role in resolving the matter at this stage.

I recommend that the employer takes no further action with regard to this dispute.

Dismissal, failure to pursue appeal