ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-000253888

Parties:

Complaint(s):

Date of Adjudication Hearing:  30/01/2023

Workplace Relations Commission Adjudication Officer:  Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 [ and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

 Background:

Summary of Respondent’s Case:

The respondent’s representative submitted as follows:

 INTRODUCTION

1.1      This case concerns a complaint by the claimant   against her former employer, the Respondent, under the Unfair Dismissals Act 1977 to 2015.  The claimant alleges that she was unfairly dismissed.   All claims are denied by the respondent.  The claimant was dismissed on the grounds of serious misconduct arising from a situation concerning non-adherence to Standard Operating Procedures for the production of organic milk and the amendment of the relevant SOP document after an investigation had commenced.  The Respondent submits that the Claimant’s dismissal was both procedurally and substantively fair within the meaning of the Unfair Dismissals Act 1977 to 2015, Section 6(4)(b).

2.0        THE COMPANY  

2.1        The respondent company   employs in the region of 700 people directly and provides jobs for many others in transport and distribution.  Approximately 270 employees are represented by SIPTU, 50 by the Dairy Executive Association and 50 by Unite while the balance are not unionised.   

3.0         BACKGROUND TO THE CASE

3.1         The Claimant commenced employment with the Respondent on 01 September 2010. In July 2014 the Claimant moved internally within the Consumer Foods business to take up the position of Quality Manager at a new location.

3.2         Raw organic milk is collected from the supplier. It is then stored in a silo onsite until it is ready to be pasteurised, processed and packaged. According to the Company’s Standard Operating Procedure (SOP) 25, Organic milk should be pasteurised before conventional milk.  Original copy of SOP 25 is attached . On 05 Sep 2019 allegations were raised with the  Group Head of HR Ms. A during an employee meeting that documentation completed by pasteurisation operatives reflecting that organic milk is pasteurised first, had been falsified.  The employee alleged that organic milk was being collected from the supplier, stored in a silo and pasteurised after conventional milk and therefore not pasteurised first as per the SOP 25. Ms. A noted that the allegations were serious and would need to be raised with managements then discussed the allegations with Mr. A , Site Manager.

3.3         On 06 September 2019, Ms B,  the company  Internal Auditor was appointed to commence an investigation.  On 09 September, the Claimant was circulated with the terms of reference for the investigation and was invited to attend an investigatory meeting by Ms. B regarding alleged falsification of documentation at the milk processing site in the plant.

3.4         During the detailed investigation interviews were carried out on 5 separate dates. Fifteen Consumer Foods staff members were interviewed in total, comprising of 1 executive team member, 5 senior management, 3 supervisors, 4 pasteurisation operatives and 2 Quality Assurance personnel. The Claimant was interviewed on two occasions on 10 & 19 September.  The first interview was the initial meeting and served to gain an understanding of Quality Managements role in the process and to gain clarity regarding the C Audit Report.  The second interview was requested to obtain insights into changes made to SOP 25 by the Claimant, in particular after the investigation had commenced.

3.5         Ms. B finalised her investigation report on 20 September 2019. Ms. B found that the allegations regarding falsification of documentation were founded based on the information outlined in the report and therefore constituted a breach of section 5 (Disciplinary Code) of the Plant Procedural Agreement which could be considered to be serious misconduct.  Ms. B recommended that the matter be referred for a disciplinary hearing.

3.6         On 23 September 2019 the Claimant was invited to a Disciplinary Hearing to take place on  26th September 2019 at 2pm by Mr. B, GM of the Marts for the Respondent.  The purpose of the disciplinary hearing was to consider the following allegations:

• As Quality Manager, the Claimant had full knowledge of non-adherence to standard operating procedure and the falsification of documentation in relation to the production of organic milk.
• The Claimant failed to disclose and escalate the non-adherence to standard operating procedure to relevant management in an appropriate manner.
• The Claimant amended ‘SOP 25: Organic Milk Production’ to broaden the responsibility for the organic process from the QA Manager to the overall management team without informing her Manager and without updating the version control. This amendment was made only when the investigation into this matter commenced and is not reflected with relevant date change.

3.7         The Claimant was informed that the matter was being treated as alleged serious misconduct, in accordance with the company’s disciplinary procedures and that the outcome of this hearing could result in disciplinary action up to and including dismissal. Appended to this invitation was a copy of the investigation report compiled by Ms. B and a copy of the Respondents Disciplinary Procedures. The Claimant was further informed of her entitlement to representation in the form of a fellow employee or a shop steward.

3.8         The disciplinary hearing took place on 26 September 2019 and the Claimant was represented by Ms. W.  At the disciplinary hearing, the Claimant submitted a document in defence of the three allegations against her.  Mr. B invited the Claimant to read the document to present her defence against the allegations.  In summary the Claimants defence in respect of the first two allegations, rested on the assertion that the practices concerning the processing of organic milk were being carried out incorrectly for an extensive period of time and that this was common knowledge to all the management team.  With regards to the third allegation of changing SOP 25 the Claimant admitted changing the procedure as she felt that she was being victimised for having her name on procedures that had been custom and practise in the business long before she arrived. The Claimant accepted that she was in control of the SOP manual and did not inform any of the management team when she changed SOP 25 after the commencement of the investigation.  The claimant further accepted that she did not follow the correct procedures and regretted this.

3.9         The disciplinary hearing reconvened on Friday 27th September 2019 and Mr. B informed the Claimant that he had concluded that the allegations against her were upheld.  Having due regard for all the circumstances, the seriousness of the incidents and the possible alternative sanctions, Mr. B regretted to inform the Claimant that the decision of the company was to terminate her employment with immediate effect as her dismissal was by reason of serious misconduct as the allegations represented a fundamental breach of the trust and confidence necessary for the employment relationship to continue.  This decision was followed up in a written letter of dismissal thereafter. 

3.10       On 03 October 2019 the Claimant submitted a letter of appeal to Mr. C, Chief Financial Officer of the Respondent.  In summary, the grounds of the Claimant’s appeal was that she was a hardworking and loyal employee and that she was not given a full opportunity to present her version of events in a disciplinary hearing where she felt the outcome had been preordained.  Also, the Claimant accepted changing SOP25 as alleged, but felt the sanction of dismissal was a disproportionate outcome to the disciplinary process.

3.11       An Appeal Hearing was held on Tuesday 15 October 2019 by Mr. C.  The Clamant was represented by Mr Matt Carroll (MC) of the Dairy Executives Association.  At the outset the Claimant read out a summary of her appeal and gave a copy to Mr. C.  The claimant submitted a brief statement in writing.  Mr. C then proceeded to ask a series of questions to get a better viewpoint on the Claimants submission in respect of the three allegations: -

• As Quality Manager the Claimant had full knowledge of non-adherence to standard operating procedure and the falsification of documentation in relation to the production of organic milk.
• The Claimant failed to disclose and escalate this to relevant management in an appropriate manner.
• The Claimant amended ‘SOP 25: Organic Milk Production’ to broaden the responsibility for the organic process from the QA Manager to the overall management team without informing her Manager and without updating the version control. This amendment was made only when the investigation into this matter commenced and is not reflected with relevant date change.

3.12       In summary, the case of appeal put forward by the Claimant was as follows: -

• “The original disciplinary hearing was unfair and the Claimant alleged she was not afforded an opportunity to present her version of events
• The Claimant’s alleged that her previous manager and other managers were aware and condoned the incorrect processing of organic milk. The Claimant contended that she verbally flagged it internally, but the blame was placed solely on her.
• The Claimant acknowledged changing the SOP but stated she did so in response to pressurising circumstances. According to the Claimant, the words were changed to reflect the real situation in that the overall responsibility for processing organic milk was not the Claimant’s responsibility as her direct boss had condoned and required the procedure to be carried out the way it was.
• The Claimant submitted that the procedures in dismissing her were flawed and the whole situation was a sham. The Claimant believed she was the ‘fall guy’ for something that has been occurring for a very long time.
• The Claimant indicated that she had been caused to suffer severe stress and anxiety as a result of this investigation and the manner which she had been ‘interrogated’ and treated as a long-standing employee had been appalling”.

3.13       Mr. C concluded the appeal hearing and retested the Claimants assertions by re-interviewing several key witnesses.

3.14       On 31 October 2019, Mr. C convened an Appeal outcome meeting with the Claimant and  confirmed that based on all the evidence available, the procedures followed in both the investigation and the disciplinary hearing and on the balance of probability, he had concluded that the decision of the company to dismiss the Claimant was fair, proportionate and fully justified and that the decision to dismiss the Claimant on 27 September 2019 for serious misconduct stands.   Following the meeting this decision was confirmed in writing by Mr. C.

3.15       On 15 November 2019, the Claimant submitted a complaint alleging unfair dismissal to the WRC.

4.0         RESPONDENT POSITION

4.1         As Quality Manager the Claimant was responsible for ensuring that product quality, processing systems and factory practices were maintained at the Respondent’s high standards as a food producer.

4.2         The processing of organic milk after non-organic milk without carrying out a flush was a serious breach of those required standards.  During the investigation it was disclosed that the Claimant was aware of this practice but did not raise it with the new site manager as she ‘assumed’ he was aware of this fact. The site manager, Mr. A, had only started in role in January 2019, eight months prior to the investigation. In addition to this, and just after the investigation had commenced on 09 September 2019 the complainant was asked for a copy of SOP 25 by the Investigation Officer Ms. B, the Claimant amended ‘SOP 25: Organic Milk Production’ to broaden the responsibility for the organic process from herself, the QA Manager, to include the overall management team without updating the version control as required.

4.3      The fact of dismissal is not in dispute and the Claimant's dismissal was both substantively and procedurally fair. It is well established, that the standard for assessing the fairness of a dismissal is that of a reasonable employer as set out in Looney & Co. Ltd v Looney, UD 843/1984, is as follows:

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

It is clear that a “reasonable employer in the same position and circumstances” would have done and decided as the Respondent did. At the core of any organisation is the need for satisfactory standards of behaviour and conduct. The incident in question concerned a serious breach of trust on the part of the Claimant. The incident was one of “a fundamental breach of trust and confidence necessary for the employment relationship to continue in such a pivotal role as Quality Manager in a Consumer Foods sector production environment.”

4.4      Having considered all the facts of the case the Respondent did not consider the response or explanation of the Claimant to be reasonable one. The Claimant’s actions amounted to serious misconduct, as defined by the employer and understood by the employee. Furthermore, her actions represented a fundamental breakdown in the trust relationship between the employer and employee. This misconduct goes to the root of the contract of employment because it serves to undermine the trust and confidence which is essential to the maintenance of the relationship between the employer and the employee.

4.5      All aspects of the disciplinary investigation and disciplinary process were conducted in accordance with SI 146 of 2000 and company/union agreements. The Complainant was given the opportunity to state her case. The Complainant was afforded the right to representation at all meetings under the disciplinary procedure, including at investigation stage and availed of this. The Complainant was also informed of the possible disciplinary sanctions arising from the disciplinary process. All the evidence in its entirety was considered, including the Complainant’s representation before any decision was made or action taken. In light of all of the above, the company believes the dismissal of the Complainant to be procedurally fair in all respects.

4.6      The Claimant has indicated that the sanction of dismissal was disproportionate however both the disciplinary hearing and the appeal hearing found that her actions amounted toa covering of her tracks thus damaging organisational credibility in her role as Quality Manager beyond redemption.

5.0         CONTRIBUTION

5.1         Without prejudice to the foregoing, should the Adjudicator find in favour of the Claimant, the Respondent contends that the actions of the Claimant contributed fully to her dismissal. Accordingly, it is the Respondent’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts 1977 to 2015. This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council, UD 43/1978, where the Tribunal saw appropriate not to award any redress to the Complainant in light of his inappropriate actions.

6.0         CONCLUSION

6.1         The dismissal was substantively and procedurally fair. The Claimant's dismissal resulted wholly from her own conduct, and we respectfully request that the Adjudication Officer find in the favour of the Respondent.

6.2         The Respondent reserves the right to adduce any further information during the course of the investigation.

In summing up, the respondent’s representative  asserted as follows :

 In accordance with Section 6(4)(a) of the Unfair Dismissals Acts 1977 - 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee. The sanction of dismissal was justified in circumstances of the case. The Claimant’s behaviour amounted to gross misconduct and there were no mitigating circumstances in relation to this. The Respondents disciplinary policy clearly outlines Falsification of records and deliberately falsifying information requested by the Company as serious misconduct warranting dismissal without going through the earlier stages of the disciplinary sanctions available. 

The Respondent found that the claimant’s actions destroyed the relationship of mutual trust and confidence between employer and employee and so it was a fundamental breach of contract entitling the employer to dismiss without notice.

The test for unfair dismissal is a subjective one. This means that the Adjudicator must ask whether the decision to dismiss was reasonable and whether it was based on the employer's honest belief in the misconduct after a reasonably thorough investigation. 

The Adjudicator should make a judgment based on their own view of whether the employee should have been dismissed. Rather they must judge whether the employer's investigation and decision was within the band of reasonable responses of a reasonable employer. In some cases, an Adjudicator may consider dismissal to have been rather harsh but still to fall within the spectrum of reasonableness.

ADJ-00003869 An Employee and A Manufacturing Company where the Complainant contended that his length of service and good performance was not taken into account by the Respondent when deciding on an appropriate sanction where the Adjudication Officer decided that “In such circumstances of gross misconduct I do not believe that length of service and/or prior performance can be considered as valid mitigation.”

When considering what sanction to apply the company had regard to the seriousness of the allegations and also the representations made by the Claimant within the process itself. 

Fair procedures  

Firstly, the matters were “fully and fairly investigated” and at all times in the process, the Claimant’s rights were upheld. Drawing on SI 146/2000, the rights have all clearly been upheld:   

The Claimant was made aware of the allegations against her and was always aware that the matters were being considered under the disciplinary procedure, and the potential seriousness of the outcome.  

The Claimant was provided with an opportunity to respond fully to all allegations against her. There was a thorough investigation meeting into the incidents, and there was a comprehensive disciplinary hearing held where the Claimant was provided with a full and fair opportunity to present her case and to influence the decision.  

The Claimant was at all times advised of her right to representation.  

The Claimant was afforded a fair and impartial determination of the issues. All relevant information and evidence pertaining to the matter were taken into consideration and the Respondent considered the situation thoroughly before reaching a conclusion. Furthermore, the parties who were involved in the decision-making process were impartial and not previously involved with the process.  

The Claimant was advised of her right to appeal the decision, which she utilised.  

Compensation and Mitigation of Loss

Sec 7(1) Unfair Dismissals Acts 1977 to 2015

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

The respondent submits that the dismissal was wholly attributable to an action, omission or conduct by the claimant,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

UDD1974 case of Philip Smyth and Mark Leddy

The Labour Court set out;

“The Court expects to see evidence that employees who are dismissed spend a significant portion of each normal working day while they are out of work, engaged actively in the pursuit of alternative employment. In the instant case no such evidence was produced and the Court has no alternative but to conclude that insufficient effort was made to mitigate the losses incurred as a result of the unfair dismissal. In accordance with the requirements of Section 7 (2) of the Act this must be reflected in the compensation to be awarded”.

The LC reduced compensation from 12K to 2K In the case of ADJ-00023294 - Labour Court determination (UDD224) TOWNEY BAY FINISHING CO. LIMITED & DECLAN MCSHANE

“This is an involved process and one to which the Complainant appears to have devoted his full time and attention up until the end of December 2019 as there is no evidence of his having made any further attempts to source work until he had completed his driver training. It follows, therefore, that either the Complainant deemed himself unavailable for work during this period because of the training he was undertaking (which he denies) or he made no effort to mitigate his loss for this period.”

The respondent’s representative reiterated his assertion that the sanction of dismissal was justified owing to the serious nature of the misconduct. It was advanced that there were no mitigating circumstances – the company policy provided that falsification of records was misconduct. It was submitted that the claimant’s actions destroyed the relationship of trust. It was submitted that the company had acted reasonably and the provisions of ADJ-0003869 were invoked in support of this contention.  The key issue for the company was the changing of the SOPs. It was advanced that the claimant had significantly contributed to her own dismissal.

In concluding the representative emphasised that the conduct of the employee was at the core of this case – he asserted she was guilty of serious misconduct and there were no mitigating circumstances. She had fabricated records and destroyed trust. The respondent had behaved reasonably and he referenced ADJ- 0003869 in support of this assertion. In response to the complainant’s representative regarding the contact between the investigator and Mr. A , it was asserted that the evidence showed there had been little interaction between them.

Witnesses:

Ms. B Internal Auditor

Mr. A Site Manager

Mr. B Marts General Manager

Mr. C- CEO – formerly CFO

Summary of Pertinent Evidence of Investigator Ms. B

The witness set out the background to her career in the company – she said investigations fall to Internal Audit and confirmed she had completed training in Workplace investigations. She refuted any suggestions of bias and asserted that Internal Audit always had to act impartially. She chronicled her modus operandi for the investigation having being told of the allegations by Mr. A. She stated the complainant did not raise any issue with the Terms of Reference for the investigation. She said the allegations were very serious in nature; she had interviewed 15 people- some were interviewed twice or 3 times. When she met the complainant she asked her if she had any knowledge of the organic milk process she replied yes – the witness said it was clear that best practise was not being followed – the witness said she asked the complainant had she mentioned it to Mr. and she replied that she had not - she had been too busy. She said the claimant made no mention of improper representation. The complainant confirmed to her that she was aware the processing was not done in accordance with the SOP and said this was the way it had always been done. The witness said the C report was mentioned but there was no reference to organic milk in it. The witness said she looked at the SOPs and discovered changes when she looked at the older versions. The complainant had said to her that she changed the SOP because it placed all responsibility on her and there were other people involved in the processing of organic milk not just her. The witness said that when she spoke to Mr. A – he said he was unaware that the organic milk was processed in the wrong way. Mr. A said that when   he was asked a hypothetical question during the C audit he proposed amending the SOP but the complainant had refused to do so. The witness was asked if anyone else said Mr. A was aware of the organic milk process and the witness replied no.

Under cross examination the witness clarified that she reported to Mr. C who was the Chief Financial Controller at that time- she said she was asked by Mr. A to conduct the investigation – when asked how did she identify 15 people she said initially there were 3 people identified – people had different roles and it evolved to 15. When asked if Mr. A was part of the investigation as a senior manager the witness responded that she did not make her report to Mr. A – she said she presented her report  to Mr. B. She said she had little contact with Mr. A during the investigation .HR and Legal had assisted with the terms of reference. She said her report would contain findings and the allegations would either be founded or unfounded. She confirmed that the management team were investigated including Mr. A, the Production Manager, the Quality Manager and the Maintenance Manager. It was put to her that the production manager brought her husband to accompany her even though external representation was not provided for in the terms of reference and that the complainant was restricted to bringing a junior member of staff. When asked why the disciplinary code was referenced in her report, the witness replied that there had been a breach arising from the falsification of documents. The witness was unaware as to how many employees were disciplined following the investigation. The witness said the fact that Mr. D was no longer an employee was sufficient grounds to exclude him in the investigation. It was put to the witness that she preferred the evidence of Mr. A over 4 other people including Ms. H and that she should have contacted the C Auditor to clarify the matter raised regarding the evidence of the parties about the discussion that took place on changing the SOP. The complainant’s representative referenced the interview with Mr. R who was unaware of the RSI sheet and who acknowledged he should have been aware of it. It was put to the witness that she had not challenged 4 managers about whether or not they should have been aware of the process and it was suggested that this was a question of deference on the part of the investigator.

The investigator accepted that the complainant was authorised to change the SOP without approval from someone else but stated that the change was not done correctly. She said the complainant acknowledged the change she had made – the essence of which was to assign responsibility to the management team.  It was put to the witness that she had accepted Mr. A’s assertion that he was unaware of the organic milk without challenge. The witness was asked if this was credible in circumstances where Mr. A was in the job for 6 months and she preferred his evidence to the evidence of the other workers who had said that everyone knew how the organic milk was processed.

It was put to the witness that she went beyond her terms of reference as there was no provision for the investigator to find a breach of the disciplinary code. The witness stated that she was advised by HR and legal to send her report to Mr. B.

The witness said she was not reporting to Mr. A – he asked her to conduct the investigation and he had no involvement in the terms of reference. She said that no issue had been raised about external representation. The witness said she asked Mr. A if he knew about the RSI sheets being falsified and he said no and she asked him to clarify about the C audit. The witness said she prepared the draft of her report and conferred with legal and HR to ensure it was in the correct format.

Pertinent Evidence of Mr. A, Head of Operations.

The witness referenced his initial appointment to the post.  He stated that his predecessor Mr. D never acknowledged there was any falsification of records and if it had been raised with him - he would have ordered an investigation.  He advised that he terminated the handover with Mr. D early. The witness said he was unaware of any concerns by the complainant in relation to organic milk. The witness said that when he was asked about what would happen if the organic milk did not come in first, he said he did not know but he enquired what would happen and was told about a flush. He instructed that the SOP be changed to provide for a flush - the witness said he suggested that he was happy for the complainant to take the decision. The witness advised that the SOP was correct and that the falsification was happening to the production sheets. He advised that he asked for the SOP to be amended in terms of intake. The witness said the complainant did not want to go ahead with the change.

 The witness was referred to the letter of appeal by the complainant to Mr. C. The complainant had asserted that at the time of the C audit Mr. A should have been aware of the processing issue.  With respect to the references regarding the quality challenges during the summer, the witness said the Quality and Technical team were expected to have the skills to do an effective withdrawal of the contaminated cream. He said when he spoke with the complainant, she checked the number of returns - there were some irregularities and he got them corrected. He did not feel there was any need for disciplinary action.

The witness disputed that he provided very little support for the complainant. He moved the Quality Team into a larger room and appointed an external auditor to do a gap analysis with a view to strengthening the team. The witness asserted that the complainant got more help from him than any other manager. The witness referenced his recruitment of a Technical Manager to whom the complainant would report. He submitted that when he met the complainant on the 29thAugust, she appeared happy with the appointment of the Technical Manager - he said she did not indicate being isolated – she could have contacted HR – the witness said the complainant warmly welcomed the appointment. The witness observed that the complainant stopped attending meetings.

When the witness was informed by Ms. A  of the organic milk issue , the witness contacted the Production Manager who confirmed that the paperwork  was being falsified. Ms. A suggested the appointment of Ms. B to investigate. The witness said he had limited contact with Ms. B and it was mainly about availability of meetings rooms.

Under cross examination, the witness was questioned on events after the operative had made the disclosure about the organic milk and he advised that Ms. A wanted to establish if there was any validity to it. The witness was asked why was it discussed with him given that everyone on site was a potential suspect. The witness confirmed that he met the operative and Ms. B was there. He denied that he had any contact with Ms. B’s manager. He accepted he booked rooms for the investigation. The witness advised that he was informed he would not be able to perform any suspensions. He said he had no input into any disciplinary proceedings and he did not get a copy of the investigators report and was unaware of who conducted the disciplinary hearings.

The witness advised that he received a copy of Ms. D’s (Technical Manager) CV and her skills and experience were phenomenal. He met her a few times. He acknowledged he had a Quality Manager but thought she was struggling. He did a gap analysis. When it was put to him that he appointed the Technical Manager above the Quality Manager he replied that there was no change to the complainant’s terms and conditions of employment, and he thought the complainant welcomed Ms. D’s appointment. The witness said he was trying to strengthen the team and he wanted to audit the technical library. He said this was the right thing to do. The witness did not explain why the position of Technical Manager was not advertised internally in the first instance.

It was put to the witness that the complainant and 3 to 4 other people had an entirely different version of events regarding the C audit. He was asked who concurred with his version of events – it was put to him that the Production Manager was not sure – was that an endorsement of his version of events. The witness said he was just proposing an amendment. It was put to the witness that from that moment on he knew that organic milk was a problem. The witness said that no one had told him about falsification of paperwork. The witness said other managers had indicated they were unsure about the falsification of paperwork. The witness understood that 3 Supervisors and the Production Manager had been disciplined. The witness reiterated that he had been advised that suspension was not an option owing to developments in case law. The witness referenced the product return in the summer of 2019 . He reiterated that he knew the complainant was struggling and referenced the gap analysis which was completed in mid to late April. He referred to the Technical Library, HACCP Flow , Critical Points  , supplies , dispatch checks and documentation. He reiterated that the complainant’s terms and conditions of employment did not change on the appointment of the Technical Manager.

Summary of Pertinent Evidence of Mr. B

In his direct evidence Mr. B said that Mr. A had at all times indicated he was unaware of the organic milk process and this was why he was not disciplined. The complainant had accepted she should not have done what she did – interfering with an SOP to extend the blame without letting them know. The witness said this was the straw that broke the camels back. There was a relationship of trust – interfering with a document was extremely serious. The witness denied that the process was predetermined – he said he was going to be leaving the company and had no axe to grind – he made his decision based on what he thought was the right thing to do. He said he asked at the end of the hearing if the complainant had any further questions and the witness said she replied No.

The witness said the company was a significant player – a lot of people were relying on it – he said there was no way the decision was predetermined. The witness said in response to a question as to whether he had considered any other outcome that the relationship of trust had broken down and referred to incorrect practises on a food line. The witness said the most substantive issue was allegation 3 – if the only allegations were 1 & 2, he said we would not be here.

Under cross examination the witness said he had no involvement with the plant. He was contacted by the Head of Legal to consider the Investigators report and go through the findings. He said he received no instructions and he would deal with the report as he saw fit.  The witness said he identified the allegations and 3 other managers to determine their awareness of the organic milk process. He confirmed he asked Legal and HR to draft the letter of invite to the hearing – he came up with the allegations from the Investigators report and set out the sequence of his disciplinary investigation. The witness referred to the alteration of documents in the food chain. The witness was asked if he considered SOP 25 and he replied No. When asked about the plant procedural agreement he said he was aware of it from previous experience. While the Investigators report had referred to procedures he did not recall  if he looked at them .It was put to the witness that if he had looked at codes /  procedures he would have seen there were other alternative sanctions open to him. He had a memory of the company staff handbook. The witness said it was now 2.5 years since the event. The witness said the complainant was asked if she had interfered with the document and had admitted she was wrong to do so. The witness said he did not believe there was an alternative sanction - he said this was a food company and what we say we do. He said he made his mind up after due consideration.

On redirect the witness was asked if he considered the matter as to whether the complainant was authorised to amend the SOP, the witness said the complainant did not raise it at the hearing  and in any event the issue was not telling the affected people she had changed it.

Summary of Pertinent Evidence of Mr. C.

The witness clarified that he was CEO of the company and had been Chief Financial Officer at the time of the appeal. He outlined his approach to the appeal , the people he contacted and read through  the documentation and the complainant’s letter of appeal of the 3rd.Ocober 2019.He stated that he viewed the appointment of the Technical Manager as assistance for the complainant and did not accept that her role was being usurped. He referenced his enquiries about the allegation that Mr. A was aware that the organic milk was not processed first and said that while the complainant, the Production Manager and others said he was aware and said they presumed he knew, none of them said as a fact that he knew. The witness said the complainant had no choice but to admit to her actions in changing the SOP during a workplace investigation. The witness said he was never asked to facilitate the complainant or her representative in cross examining witnesses. The witness did not accept that the claimant changed the SOP in the best interests of the company as had been set out at the appeal by her representative. The witness said he thought it was done to broaden the responsibility to the wider group. The witness did not accept that the Investigator had acted outside the scope of her Terms of Reference. He was satisfied she was a competent party to investigate and had done a number of courses on investigations. He said she was not making decisions and was just outlining her findings. The witness said he took account of the evidence of Mr. A and Ms. H.

In outlining his thinking on the appeal  , he set out his consultation process – he met various people  some of who admitted to being aware that the organic milk was not processed first .He said some people got warnings but the complainant had deliberately amended an SOP – as Quality Manager that led to a breakdown in trust .He stated that the Quality Manager had to be above reproach. The witness said he did consider other sanctions to dismissal. He said the Quality Manager was the gatekeeper for quality, all trust had broken down and there was no alternative to dismissal.

Under cross examination the witness said that he had met with Mr. A twice on the 15th.and 24thOctober. He was asked why he met Mr. A before the appeal and replied there was a follow up matter he wanted to explore further. The witness was questioned on his consideration of the complainant’s allegations of unfairness and bias – he said he read the submission, spoke with 4 other people – it was put to him that he failed to interview Mr. B and Ms. W despite his commitment at the appeal hearing to comprehensively follow up. It was put to the witness that the complainant had asked for Mr. D to be interviewed and the witness responded that he was a former employee and was not involved in the investigation in to changing the SOP. The witness was questioned as to why the C audit personnel were not contacted. The witness said there was disagreement on the matter of the hypothetical question. It was put to the witness that when Mr. A said “you do a flush” that he knew this was not the case. It was asserted that the SOP only deals with pasteurisation and the question was about intake and that was what was asked by the auditor. It was put to the witness that even though this matter was raised in May, the process remained the same until September when the whistle blower made his disclosure. It was put to the witness that he received not many reassuring answers from Mr. A before he decided to exonerate Mr. A. The witness responded that the question was whether Mr. A knew about how the company was processing the organic milk or not and that Mr. A said he did not know.

The witness confirmed he received advice from Legal in relation to the matter of suspension. He was pressed further on the appointment of the Technical Manager and the subordination of the Quality Manager and replied that it was not uncommon to change the structure. The witness was referred to submissions made by the complainant in relation to resource shortages and data. It was put to the witness that ultimately the Technical Manager ended up doing the work of the complainant for over 2 years. The witness said he was not appointed until January 2020.

It was put to the witness that was it not the case that all managers were responsible for quality -the witness said there would not have been a problem if consultation had happened. It was put to the witness that there was no evidence to support the assertion that the complainant was not forthcoming during the investigation. The witness said she admitted to it when she was found out. The witness did not accept that Mr. A was proposing to change the SOP retrospectively – the witness said changing was not a problem provided the date was correct. It was put to the witness that the company had suffered no detriment.

Under re-examination, the witness asserted that nobody could confirm that Mr. A was aware that organic milk was processed after pasteurised milk .

Summary of Complainant’s Position       

1.1 Ms. S"Claimant") was recruited by ("Respondent") as a Graduate on 1st September 2010. On 28th July 2014, the Claimant was promoted to the position of Quality Manager as their Consumer foods site at site X.

1.2     On 5th September 2019, Ms. A (Group Head of HR) was approached by an Operator at the site who informed her of an alleged practice of falsification of documentation in relation to the pasteurisation of Organic milk at the site.

1.3 On 9th September 2019, a hastily convened internal investigation was delegated to Ms. B (Company Internal Auditor) with terms of reference already decided. The Claimant was instructed to attend an Investigation meeting on the following day.

1.4     On 10th & 19th September 2019, the Claimant attended Investigation meetings. The Investigation Report was finalised on 21st September 2019.

1.5     On 23rd September 2019, the Claimant was instructed to attend a Disciplinary meeting on 26th September 2019.

         1.6         On 26th September 2019, the Claimant attended a Disciplinary meeting heard by Mr. B                                                and he informed her on the following day 27th September 2019, that she was dismissed with immediate effect from her employment on the basis of serious misconduct. . On 3rd October, the complainant submitted a letter of appeal.

1.7     On 15th October 2019, the Claimant attended an Appeal hearing heard by Mr. C (then Chief Financial Officer) accompanied by her union representative, Mr. Matt Carroll.

1.8     On 31st October 2019, Mr. C confirmed to the Claimant that her appeal against dismissal for serious misconduct had been unsuccessful.

1.9     On 15th November 2019, the DEA submitted a claim on behalf of the Claimant to the WRC under Section 8 of the Unfair Dismissals Act, 1977, on the basis that the dismissal was unreasonable and wholly disproportionate to the gravity and context of the case. The Claimant argues that the decision to dismiss was both substantively and procedurally unfair within the meaning of the Unfair Dismissal Act, 1977 — 2015.

        2.0         CASE BACKGROUND

2.1      The Claimant was recruited by the Respondent as a Graduate on 1st September 2010. From the day she started, she has been a very dedicated, hardworking and honest member of the team. Her career started with operations, laboratory and quality work. She was appointed Quality Supervisor in January 2013. She worked diligently in the following months to address critical non-conformances and ensure successful audit outcomes. On 28th July 2014, the Claimant was promoted to the position of Quality Manager at their Consumer foods site at another plant and relocated there.  Between 2014 and 2019, the site took on huge extra milk volume growing to 120 million litres approx. per year with very little additional resources. Throughout this period, the site was audited successfully on an annual basis by key customers. The Claimant was consistently praised by auditors for the systems she had in place and her helpful and enthusiastic manner.

2.2      In general, the Quality Manager role at the plant was a high pressure, responsible and stressful role but the Claimant worked extremely hard to ensure all tasks were completed successfully.

2.3     The Claimant acknowledges that the Summer of 2019 was one of the worst seasons on record at the site for 'so called' Quality problems. However, the root cause of many of these problems lay in the maintenance and production areas. In her 5 years' service at  the plant , she had never experienced anything like the range and volume of issues and problems as in that Summer of 2019, e.g. homogeniser issue, bad tasting milk and cream withdrawal.

2.4     With regards to the bad taste issue, this came to a peak with a very large number of           complaints being received in early July 2020. The Claimant convened emergency meetings with

the staff to address the issue. From a thorough investigation undertaken by the Quality team, it was clear that the issue was arising from post pasteurisation contamination. This was confirmed by Group Technical Manager, who although on annual leave took a call to discuss the issue. Regardless of the investigation analysis, the complainant received very little support from fellow managers and more so resistance from the Maintenance Manager who insisted it was a raw milk issue. Mr. A (Operations Manager) was also on annual leave at this time. As a result, given the seriousness of the issue and the lack of support from her colleague managers, the Claimant took the initiative and travelled to the respondent’s Head Office and met and explained the quality issues to two senior executives. As a result, the plant   was shut down and the root cause of the problem was quickly identified as a production/maintenance issue.

2.5      In late July 2019, a problem arose with specification of cream — this coincided with the visit of a Technical Manager to undertake an audit. As most of this cream had already been dispatched to customers, the Claimant had to urgently arrange its withdrawal from the market. It is submitted that Mr. A.  Operations Manager subsequently sought to lay the blame for a less than fully successful cream withdrawal from the market entirely at the hands of the Quality Manager — though the Production team was more culpable due to poor internal department communications. The Claimant was working very long hours in extremely stressful circumstances during this period and received very little support from the Operations Manager.

 2.6 On August 2019, the Claimant was informed by the Operations Manager that a new Head of Technical (Ms. D) was being recruited for the site and that the Claimant would report to this person going forward. This new position had not been advertised beforehand. The Claimant immediately felt victimised and scapegoated for the quality issues over the Summer of 2019. She was quite stressed to learn that after 5 years in charge of Quality on the site, she was now subordinated to another Quality role. The Claimant highlighted to the Operations Manager that most of the quality issues arising over the previous Summer arose from various Production and Maintenance issues. He responded that he would look at those issues in due course but Technical was his immediate priority.

A week previously, the Claimant had emailed her analysis of the Technical/Quality issues arising over the previous Summer together with her recommendations for dealing with these issues going forward to the  Operations Manager,  the National Account Manager,   the General Manager, Dairy, and the Group Technical Manage). The Claimant did not receive any response to this email.

        2.7    On 9th September 2019, the Claimant received a letter from Ms. B (Internal Auditor) instructing her to attend an Investigatory meeting on 10th September 2019. The purpose of the meeting was to investigate alleged falsification of documentation at the milk processing site. The terms of reference for the investigation were set out in the letter. The Claimant was required to attend a follow up meeting on 19th September 2019. The Claimant was accompanied to these investigation meetings by junior colleagues — the Sales Coordinator and the Quality Coordinator respectively.

2.8     On 11th September 2019, Head of Technical Ms. D commenced employment at the site. With immediate effect, the Claimant was excluded from regular meetings, decision making, and email circulation lists that she had participated in over the past 5 years. The Claimant was, thereafter, ignored by Mr. A Operations Manager.

        2.9                  On 21st September 2019, the Investigation report was finalised.

2.10    On 23rd September 2019, Mr. B (Marts General Manager) wrote to the Claimant requiring her to attend a Disciplinary Hearing alleging serious misconduct on 26th September 2019.

        3.0          DISCIPLINARY HEARING

3.1      On 26th September 2019, the Claimant attended the Disciplinary Hearing alleging serious misconduct convened by Mr. B (Marts General Manager). She was accompanied by a junior colleague, Ms. W (Quality Coordinator) who took notes only.

3.2      First allegation was "You as Quality Manager had full knowledge on non-adherence to standard operating procedure and the falsification of documentation in relation to the production of organic milk". In response, the Claimant stated that,

3.2.1     It was custom and practice since before she started at the site back in 2014 to undertake this practice.

3.2.2    The site senior management team were fully aware of this practice, i.e. Mr. D        Former Operations Manager until January 2019, the Maintenance Manager,  the Production Manager and the Claimant (Quality Manager). She was the junior member of the team in terms of service and age.

3.3      Second allegation was "You failed to disclose and escalate this to relevant management in an appropriate manner". The Claimant replied,

                    3.3.1      The Standard Operating Procedure (SOP25-Organic Milk Procedure —) and related records were in general circulation prior to her joining in 2014 and known to all the senior management team.

3.3.2     As the site capacity had grown significantly over the previous five years, the SOP25 had been relegated behind other more pressing priorities. While the Claimant had raised this issue verbally from time to time, she had not unfortunately done so in writing.

3.3.3     As there had been a lengthy 4 weeks handover period in January 2019 between the departing Mr. D and the incoming Mr. A as Operations Manager, she assumed all these matters had been discussed between them.

3.3.4    Mr. A Operations Manager would have been aware of the relevant organic milk process as it was raised at many management meetings and particularly at a C Group audit in May 2019. She stated that Mr. A had been specifically asked about the organic milk intake during the course of the latter audit and had sought to change the SOP on the day but she had declined to misrepresent the changed SOP to the C Auditor. Mr. B Marts General Manager said "scope of investigation was around falsification of documentation".

3.4      Third allegation was "You amended SOP 25: Organic Milk Production to broaden the responsibility for the organic process from the QA Manager to the overall management team without informing your Manager and without updating the version control. This amendment was made only when the investigation into the matter commenced and is not reflected with relevant date change". The Claimant replied,

                   3.4.1    The Claimant stated that from 29th August 2020 when she was informed by Mr. A  ( Operations Manager) that a new Head of Technical (Ms. D ) had been appointed, she felt vulnerable and stressed as she was no longer head of the Quality department. As a consequence, once she learned of the Investigation, she believed that the outcome was pre-determined.

3.4.2   She felt she was being victimised for having an Operating Procedure that had been established custom and practice in the business long before she arrived in 2014. She felt that all the responsibility for ensuring the process was correct lay with her and was not shared across the senior management team as is the normal practice. She admitted that due to stress and the perception that her position was vulnerable, she acted in haste and changed the SOP. She acknowledged that she should have revised this procedure on initial review when she started in the position in 2014 and regretted not following the correct procedure.

3.4.3    She did not inform the Operations Manager of the change to the SOP as this would not be normal practice with her in changing the SOP manual.

3.4.4   In response to Mr. B's question, she stated that she had raised concerns about operating procedures with the previous Operations Manager, Mr. D , but just verbally.

3.4.5  In response to Mr. B's question about telling Mr. A Operations Manager, she stated that she believed he was fully aware of the non-compliance with the SOP since the C audit in May 2019 at the latest.

3.4.6     Regarding Mr. B’s query about not documenting changes to SOP25, the Claimant admitted that she had been wrong to do so.

3.4.7     Mr. B stated that "the result of the investigation was not predetermined and it was his job to go through the process and make a decision", and advised the Claimant to attend a further meeting with him on the following day.

3.4.8   The Claimant stated that anything she did was in the interests of the business and she had no financial or other gain from any of these allegations.

3.5   On 27th September 2019, the Claimant attended the reconvened Disciplinary Hearing again accompanied by her junior colleague, Ms. W. Mr. B Marts General Manager informed her that he had concluded that the allegations against her were upheld. He continued, "having had regard for all the circumstances, the seriousness of the incidents and the possible alternative sanctions, I regret to inform you that the decision of the company is to terminate your employment with immediate effect. Your dismissal is by reason of serious misconduct as the above-mentioned allegations represent a fundamental breach of the trust and confidence necessary for the employment relationship to continue."

3.6     The Claimant was advised of her right to appeal the decision to dismiss.

        4.0        APPEAL HEARING

4.1    On the 3rd. October 2019, the Claimant wrote her letter of Appeal to Mr. C CFO,  setting out her grounds of appeal and expressing her dissatisfaction with the manner in which the Disciplinary Hearing had been conducted, i.e. constant interruptions as she sought to read her prepared statement responding to the 3 allegations levelled against her and numerous requests for "new facts". She contended that she had not been afforded an adequate opportunity to present her version of events. Also, the Claimant is adamant that she did not answer "no" to a question as to whether she had any additional points to make. She highlighted in her Appeal letter the following issues as contributory to the dismissal decision:

4.1.1     She believed she was wrongly portrayed as a weak and ineffective Quality Manager as a result of the bad tasting milk and cream withdrawal issues arising earlier in the Summer. The root cause of these problems was equally attributable to both the Production and Maintenance departments but Mr. A Operations Manager unfairly directed the blame in her direction. This greatly undermined her trust and confidence in the new Operations Manager.

4.1.2     Her trust and confidence were further eroded when the Operations Manager informed her on 29th August 2019 that a new Head of Technical (Ms. D) had been recruited and would commence employment on 11th September 2019 — she was informed that she would be reporting to this person going forward. Once this person came on board, she was isolated and no longer included in key decision making. Feeling vulnerable and victimized, she unfortunately reacted under severe pressure and made an unauthorized change to SOP25.

4.1.3    She stated that she had admitted at the earlier Investigation hearing that she had updated SOP25 in an inappropriate manner and explained that this had arisen due to job insecurity and severe stress.

4.1.4     During the C audit in May 2019, Mr. A (Operations Manager) had instructed staff to amend the SOP25 to reflect that current practice is to carry out a flush at milk intake — this update was to be carried out without updating the Revision number as per correct procedure. There were witnesses to this exchange. The Claimant declined to undertake this instruction and stated that she would prefer to accept a non-conformance in the Report than misinform the Auditor. In any event, the C Auditor did not inspect the SOP25 and incorrectly assumed site compliance. Clearly, the Operations Manager was aware from this audit, if not earlier, that the Organic Milk SOP25 was inaccurate.

4.1.5     The Organic milk process was long established before the Claimant took up the role of Quality Manager at the site. She was never instructed to introduce a revised process for Organic milk.

4.1.6     A majority of senior management, both current and past, knowingly processed Organic Milk in breach of company policy without any sanction indicating that little importance was attached by the company to this policy.

4.1.7    She believed the outcome of the Investigation/Disciplinary Hearing was predetermined and that she did not get a fair hearing.

4.2      On 9th October 2019, Mr. C (CFO) wrote to the Claimant requiring her to attend an Appeal hearing on 14th October 2019 .

4.3      On 14th October 2019, the Claimant attended the Appeal meeting convened by the CFO and she was represented by Mr. Matt Carroll (Dairy Executives Association) — she had only recently joined the DEA. She read and submitted a short summary of the arguments that she had made in her Appeal letter.

4.3. I    Mr. C acknowledged the Appeal letter contents and stated that he had already spoken to Mr. A (Operations Manager) about the C audit in May 2019 — he claimed that he had instructed staff to amend the SOP 25 to reflect the practice, going forward only, of undertaking a flush at milk intake. Also, he claimed that the C Auditor had posed a hypothetical question only. The Claimant strongly contradicted this version of events and claimed that she was not prepared to sign off the retrospective change to the SOP 25 in the manner sought by Mr. A (Operations Manager) and that she was quite prepared to have the Organic milk intake noted as a non-compliance in the report and requiring a corrective action afterwards.

4.3.2   The CFO clarified that he had pursued the Organic milk issue with Mr. A (Operations Manager) and stated, "I think an important factor in this case is whether your manager knew about organic milk being pasteurised after conventional milk, or not. I put this question to Mr. A and he has indicated that he didn’t know about it and he didn't make the connection. Others in the business said that they assumed he knew but no one has said they discussed it with him. With regard to the C audit Mr. A said that he was answering a hypothetical question from the auditor, and that he wasn’t suggesting to put the process in place retrospectively".

4.3.3 In relation to allegation #1, "You as Quality Manager had full knowledge on nonadherence to standard operating procedure and the falsification of documentation in relation to the production of organic milk", the Claimant clarified, "Organic milk would often be pasteurised in the middle of the day. Mr. A would have been on several emails re: not receiving enough organic milk and needing more organic milk throughout the day. He also attended 10:20am meetings".

4.3.4     Regarding allegation #2, "You failed to disclose and escalate this to relevant management in an appropriate manner". The Claimant stated that Mr. D (former Operations Manager) was fully aware of the Organic milk process. Also, she stated that there may be emails within the Production department concerning situations where Organic milk had to be pasteurised after conventional milk in the middle of the day due to supply or quality issues. Mr. C replied that, "I will follow up to this to the best of my ability. If it were the case that your manager knew about organic milk being pasteurised after conventional milk, that would be new evidence, but I don 't have any evidence of this".

4.3.5     Responding to allegation #3, "You amended SOP 25: Organic Milk Production to broaden the responsibility for the organic process from the QA Manager to the overall management team without informing your Manager and without updating the version control. This amendment was made only when the investigation into the matter commenced and is not reflected with relevant date change", the Claimant replied that Mr. A (Operations Manager) had proposed to change the SOP 25 in the same incorrect manner during the C audit in May 2019 to state that the flush was undertaken at milk intake when that was clearly not the case.

4.4      Mr. M. Carroll (DEA) stated that the Claimant had readily admitted to changing the SOP25 in an incorrect manner — Mr. A   had sought to make similar changes in an incorrect manner during the C audit in May 2019. Additionally, M. Carroll (DEA) stated,

4.4.1    that Ms. B (Investigator) had drawn conclusions in her Investigation Report that were outside the terms of reference for the Investigation.

                    4.4.2     believed that there had been an early rush to judgement in this instance — on 9th

September 2019, the Claimant was instructed to attend an Investigation on 10th September and on 27th September she was dismissed from her employment with immediate effect for serious misconduct.

4..4.3 described that there had been a long-standing custom and practice whereby conventional milk was being regularly pasteurised prior to Organic milk. This practice pre-dated the Claimant's transfer to the site in July 2014.

4.4.4     that Mr. D (previous Operations Manager) had completed a lengthy handover with Mr. A (Operations Manager) in January 2019 — the previous long-serving manager should be prevailed upon to give his version of events.

4.4.5     noted that everything was nicely choregraphed with a new Head of Technical (Ms. D) commencing in mid-September and the Claimant dismissed two weeks later.

4.4.6     sought that the Claimant be re-instated into her position as the Dismissal sanction is completely disproportionate and inappropriate. A total of 15 staff participated in the Investigation, i.e. I executive team member, 5 senior managers, 3 supervisors, 4 pasteurisation operatives and 2 Quality Assurance personnel. Only a small number of these staff were issued with Disciplinary Warnings, and most were exonerated.

4.4.7 that the Claimant was a loyal, hardworking and trustworthy member of management staff since September 2010. The sanction of dismissal would do irreparable damage to her professional career. She had suffered extreme anxiety and occupational stress since the Investigation process has commenced.

4.5      Mr. C (CFO) stated that he needed to meet a number of others to complete the Appeal process.

4.6     on 31st October 2019, Mr. C(CFO) met with the Claimant and M. Carroll (DEA). He informed her that her appeal against the dismissal decision had been unsuccessful. He concluded that the decision was fair, proportionate and fully justified.

4.7 On 15th November 2019, the DEA submitted a claim on behalf of the Claimant to the WRC under the Unfair Dismissals Acts.

         5.0           SUBMISSION ON BEHALF OF CLAIMANT

5.1     The Investigation undertaken by Ms. B was fatally flawed. Once the Operative had made his allegations known to Ms. A (Head of HR), she discussed this matter with Mr. A Operations Manager even though he was a central figure as the most senior manager on the site.

5.1.1     Ms. B (Investigator) was employed as an Internal Auditor with the respondent  and clearly not an 'Independent Investigator'. Also, her lack of competence and experience in undertaking such a serious inquiry was apparent, e.g. the Husband of the Production Manager was allowed to be her representative though he was not employed by the respondent.

5.1.2     The falsification of data sheets relating to the processing of Organic milk was an established practice since the onset of Organic milk over 15 years ago. The Production Manager confirmed in her statement that the practice continued after the respondent acquired the site in 2012 and was patently obvious to anyone looking at Organic milk production in progress.

                   5.1.3   It was common knowledge across all site staff interviewed that the Raw Silo

Identification (RSI) sheets were being completed incorrectly. However, Mr. A (Head of Operations) claimed he was unaware of this practice thought employed at the site since 16th January 2019 and having had a lengthy handover period with the outgoing Operations Manager (Mr. D).

5.1.4     The Claimant had confirmed to the Investigator that she had amended SOP25 during the Investigation to move responsibility from Quality Manager to the wider management team. The overall task of processing Organic milk requires the inputs of Production, Maintenance, and other staff.

5.1.5 The scope of the investigation was focused on an allegation of falsified documents relating to the pasteurization of organic milk. Yet, Ms. B

(Investigator) made a critical finding that "the allegations regarding falsification of documentation are founded based on the information outlined in this report and is therefore in breach of section 5 (Disciplinary Code) of the Plant Procedural Agreement which is considered to be serious misconduct. I recommend that this matter be referred for a disciplinary hearing. “ Clearly, this Investigation went way beyond a fact gathering exercise. The recommendation as to disciplinary action clearly demonstrates the overlap between the investigative and adjudicative functions.

5.2     As was the case during the Investigation stage, the Claimant did not have professional representation during the Disciplinary Hearing. The hearing was conducted in a hurried fashion and she was not afforded an adequate opportunity to present her version of events, i.e. she was confronted with frequent interruptions as she sought to read her prepared statement addressing the 3 allegations levelled against her and numerous requests for "new facts".

5.3 The Appeal Hearing on 14th October 2019 was convened by Mr. C  (CFO) .The Claimant was represented by a DEA Official. In relation to Mr. C’s (CFO) follow up meetings with other staff, we highlight from the Minutes:

5.3.1    with respect to Mr. A (Operations Manager) participation in the C Audit in May 2019, the complainant statement of Ms. H strongly suggests that he intended to retrospectively amend SOP25, "My impression was that Mr. A was happy for me to change the SOP retrospectively, but I cannot be sure what he was thinking at that time. When I made the change to the SOP, I printed the SOP off I asked the claimant to sign it and she wouldn't, she was happy to take it as a non-conformance and that the corrective improvement could be acted on going forward'.

5.3.2     the witness statement of the Production Manager states that in relation to when Organic milk is pasteurised, "There would have been emails referring to it (DK shows printed emails) ". In reference to an email specified by Mr.C (CFO), she responded, "Yes that would be organic. There's also another email from Mr. A  in relation to what time organic milk will be pasteurised."

5.3.3     with respect to Mr. A’s (Operations Manager) participation in the C Audit in May 2019, the complainant statement of Ms. W describes his efforts to incorrectly amend SOP 25, "The SOP was changed on the computer only, but it was not changed properly because the Quality Manager  did not want to go ahead with the change".

5.3.4 the witness statement of Mr. A (Operations Manager) dated 24th October 2019 reveals that, "I called an independent investigation and I was advised by HR and Legal not to suspend the claimant” even though Mr. A himself would be one of the central figures under investigation. Furthermore, on being shown an email dated 8th May 2019, Mr. C questions, "It's obvious from reading this email that organic milk was clearly coming in when it shouldn't have been" and Mr. A answers, "I didn't pick up on that. The thing we need to think of here is: were we doing the flush or not? What happens if it doesn't come in? The SOP has now been changed to state that a flush would be completed if the organic milk didn't come in before the conventional milk". On being questioned about an earlier email dated 22nd January 2019 concerning a review of organic milk, he answered, "To be honest with you, I was in the job seven days, I was trying to get a handle on the business. I don't remember. If it had been a technical issue, I would have had the technical team involved on these emails".

5.4     It is submitted that the Appeal was flawed and didn't take into account the contents of the above statements the Quality Assurance Representative ,   the Production Manager,  the Quality Coordinator and the(Operations Manager) respectively. The WRC has commented in An Employee v An Employer ADJ 0000381 (12 April 2017) as follows "An appeal is not just an afterthought or a procedure that must be completed as a matter of course. It is a very' important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance. An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty procedures or disproportionality of sanction". O'Hora v Dakota Packaging Ltd UD 372/1991 is authority that no appeal will succeed in putting "a stamp of respectability" on a decision to dismiss which was flawed in the first place.

5.5     On 11 September 2019, a new Head of Technical (Ms. D) commenced employment at the  site and assumed many of the Claimant's responsibilities and executive duties. The claimant would henceforth report to this new appointment even though she held full responsibility for the Quality function for the previous 5 years. This appointment amounted to a repudiation of the Claimant's contract of employment or was an indication that the respondent was no longer prepared to be bound by an essential term in her employment contract. Her confidence in her employer was greatly undermined and she suffered severe anxiety and occupational stress as a result. Furthermore, the role of Quality Manager occupied by the Claimant up until her dismissal on 27th September 2019 has not been backfilled. Ms. D (Head of Technical) continues to carry out the duties of that role.

5.6     No witnesses were made available to the Claimant for cross-examination as to facts either at the Disciplinary Hearing or the Appeal Hearing. This conflicts with the principles outlined in the WRC Code of Practice on Grievance Disciplinary Procedures (SI No 146/2000) requiring "that the employee concerned be allowed to confront or question complainantes". Similarly, Ikore v Woodies DIY Limited UDD1739 (3 August 2017) Labour Court, stresses the principle that an employer must ascertain the full facts before taking disciplinary action,i.e. the investigation must be "comprehensive to the degree that the outcome could be assured to provide a basis for conclusions to be drawn on the balance of probabilities following the conduct of the Respondent's disciplinary process".

5.7 The respondent accepted a long-standing custom and practice relating to the processing of Organic milk. As highlighted in Redmond on Dismissal Law, 3rd Edition, Desmond Ryan, Bloomsbury 2017, p290, “Where an employer has tacitly accepted or condoned a particular practice and decides to take a firm disciplinary line, it must give adequate warning to employees that it is taking a new approach. If it has previously tended to interpret a disciplinary rule lightly, a sudden decision to dismiss employees for breaking that rule without adequate warning of the change in approach may be unfair".

5.8 While the respondent invoked Governor and Company of Bank of Ireland v Reilly [2015] IEHC 241 as authority for not suspending the Claimant during the course of the Investigation, it showed no such concern when dismissing her with immediate effect prior to the Appeal hearing being convened thus causing irreparable damage to her reputation and standing. As Noonan J stated, "It is potentially capable of constituting a significant blemish on the employee's employment record with consequences for his or her future career".

5.9     It is submitted that the respondent's decision to dismiss the Claimant fails the band of reasonableness test, i.e. that having regard to all the circumstances, no reasonable employer would have dismissed the Claimant. O'Brien v Dunnes Stores Limited UDDI 714 (7April 2017) confirmed the applicability of the British Leyland test and it is respectfully submitted that the respondent's decision to dismiss did not fall within the "band of reasonable responses".

5.10   The Respondent relied fully and uncritically on the statements of the newly recruited Mr. A (Operations Manager). Despite being specifically requested at the Appeal hearing, Mr. C (CFO) did not contact Mr. D, the former long serving Operations Manager at the  site up until January 2019 for a statement.

5.11 Dismissal of the Claimant was both disproportionate and inappropriate. McAndrew v Eagle Star Life Assurance Co Ltd UD 134/2002 is authority for employer ensuring they act consistently in treating anyone whose conduct is unacceptable is the same way. Where a co-employee in a similar situation to the Claimant is not dismissed, dismissal will be unfair. It is submitted that Complainant v Respondent 00000381, 2017 the WRC advises caution in deciding on the fairness or otherwise of dismissal, "the decision to dismiss is the ultimate sanction an employer can take against an employee. Dismissal has substantial ramifications for an employee and a decision to dismiss should only be taken as a last resort, where no other sanction is possible or suitable".

         6.0        CONCLUSION

6.1      The Claimant's dismissal was both substantively and procedurally unfair. Her treatment at the hands of the Respondent was abominable. An internal Investigator could hardly be expected to act impartially and without being exposed to undue influence and bias. The facts and merits of the case were pre-judged before the Disciplinary Hearing and Appeal.

6.2      It is respectfully requested that the Adjudication Officer deems this dismissal to be unfair. Maximum financial compensation is sought given the career, salary and pension detriment suffered by the Claimant.

In summing up the complainant’s representative submitted as follows :

SOP25 ORGANIC MILK PRODUCTION PROCEDURE

Concerned with the segregation of Organic and non-Organic milk

SOPs were changed/authorised by the Quality Manager.  Confirmed by the Site Mgr. that there was no requirement for further approval.  There was no provision within the SOP for consultation.

The complainant sought to change the statement, “It is overall responsibility of Quality Manager to ensure that the organic process flow is correctly followed and maintained” to “It is the overall responsibility of the Management team to ensure that the organic process flow is correctly followed and maintained”.

The complainant was entitled to make the suggested change albeit a new Revision number should have been affixed to it.

C AUDIT (May 2019)

Auditor raised question concerning milk segregation.

 Mr. A sought to present Auditor with revised SOP25.  Claimed he was acting on “hypothetical” question and change was “prospective” only.  No revised Revision number was affixed.  This evidence is contradicted by all present on the day, i.e., Ms. H and the complainant.

It stretches credulity to believe that the Mr. A was unaware of the problem with SOP25 following the C Audit.

The draft change to SOP25 proposed by the Site A has never been opened to the hearing/Adjudicator.

INDEPENDENT INVESTIGATION (Ms. SB)

Whistle-blower’s disclosures on 5th Sept ’19 to Ms. A was immediately discussed with Mr. A  (Site Manager).

App. 2, p14 – terms of the investigation “(11) At the conclusion of the investigation, the Investigator will provide a written report which will contain findings in relation to the incident. (12) Depending on the outcome of the investigation, the Company may refer the matter to a disciplinary decision-maker following the investigation.”

Investigator Ms. B found that the falsification of documentation is “a breach of Section 5 (Disciplinary Code) of the Plant Procedural Agreement which is considered serious misconduct.  I recommend that this matter be referred for a disciplinary hearing.”  Clearly,the Investigator exceeded the task of a fact-gathering exercise and made damning findings in relation to the Claimant.

A back channel to the Site Manager was maintained by the Investigator during the course of the Investigation.  Also, the draft final report was reviewed by the Head of HR and Head of Legal before publication.

Disciplinary Hearing (Mr. B)

Appointed by Head of Legal.  “I would go through the report and deal with it how I feel fit”.  Determined that A (Site Mgr) was not aware of the organic process.  Identified 3 staff – Maintenance Mgr “knew that organic milk wasn’t being processed the way it was supposed to be but it wasn’t his job”; Production Mgr and Quality Mgr.

Mr. B : emailed SMcC on 23rd Sept to attend Hearing on Thurs 26th Sept.

Mr. B: “I had nothing to do with… I wasn’t aware with any actions on any of the others”

Admitted that he consulted with the Head of HR and Head of Legal during course of his Disciplinary hearing process.

Mr. B failed to follow up with previous Site Manager Mr.D who had managed the site from 2008 to February 2019.

Mr. B : re Allegation 3, “serious to go interfering with documentation concerning an item in the food chain”.  Mr. B said he reflected overnight but “decision was clear cut…the falsification of documentation”.  “No matter what was in any book, the third allegation in her case would not be acceptable in any shape or form”

When asked whether he consulted with S1 146 of 2000 before reaching his decision, Mr. B answered “being honest today did I look at it then, I can’t remember…. It wouldn’t have had a bearing on my decision anyway”.  Clearly, contrary to Para 10 of SI 146 that outlines that disciplinary action to be considered may include “* oral warning * written warning * final written warning * suspension without pay * transfer to another task, or section of the enterprise * demotion * some other appropriate disciplinary action.”

APPEAL Hearing Mr.C

Did not interview Mr. B despite complaints made in respect of the Disciplinary hearing re constant interruptions, calls for ‘new facts’, etc. contrary to S1 146 of 2000, Para 6 that states that “the employee concerned is given the opportunity to respond fully to any such allegations or complaints”.

Mr. B failed to follow up with previous Site Manager (Mr.D ) who had managed the site from 2008 to February 2019 despite being requested to do so.  The incumbent Site Mgr had an overlap of some weeks with the former in January 2019.

Mr.C did not attach reasons for his outcome of upholding the dismissal other than to state “Based on all the evidence available to me, the procedures followed in both the investigation and the disciplinary hearing and on balance of probability, I have concluded that the decision of the company to dismiss you Is fair, proportionate and fully justified”.

In addition the representative asserted that the SOP procedure provided for amendments authorised by the Quality Manager and there was no provision for consultation. He referenced the appointment of the Head of Technical who had been head hunted through an agency – he maintained that she carried out the complainant’s role for a full 2 years. He advanced that the sanction of dismissal was excessive and disproportionate. The company had  not suffered detriment and their response was not within the range of reasonable responses .He contended that fair procedures and natural justice were not observed. The complainant he submitted had a right to proper notice and her previous service was not taken into account. He argued that there had been a rush to justice. He advanced that the HR manager and legal adviser chose not to attend as witnesses even though they were integrally involved in the process. He submitted the dismissal was procedurally and substantively unfair. He invoked the provisions of ADJ-00027573 in support of these assertions.

Summary of Pertinent Evidence of Complainant

          In her direct evidence the complainant set out a chronology of her career history to date with the respondent company. She said 2019 was a tough year with new equipment, process changes and a number of horrendous quality problems. She said her former manager Mr. D was very hands on unlike Mr. A who was mainly office based and had a different management style. She itemised the quality problems that had arisen and her imput into resolving them. She said she had been wrongly blamed by Mr. A for improper returns of cream. She referenced lack of support and submitted the failures were of a technical nature. The complainant referred to SOP 25 and said there were 70 SOPs in place. She submitted that during the C audit, the auditor enquired if there was a separate pump for organic milk and what happened if the milk came in at a different time. The complainant asserted that Mr. A replied there’s a flush carried out and the complainant said this was not true. She said Mr. A went back to the office – according to the complainant he wanted to change the SOP to include a flush but her preference was for a non-conformance finding and she said she was not signing the proposed SOP change. When asked why she declined to sign, the complainant said she knew the process was not being done and hopefully this was a chance to do it properly. She clarified that organic milk should be segregated throughout processing from conventional milk. She advised that organic milk should ideally come in first. She submitted that the plant was not doing flushes. She referred to volumes of new milk being a difficult commodity to get – there was no excess milk and there were issues with fat content and water. She said you might put in a load later in the day – she stated we did not have the equipment to process properly. The complainant refuted the evidence of Mr. A to the auditor that the question raised during the C audit was hypothetical – she replied no – “why would he change the procedure if it was hypothetical.” The complainant insisted it was not hypothetical. The complainant advised that she was in charge of amending SOPs and assigning the new number. When asked if she needed to report to anyone else that such a change had taken place , the complainant replied No.

           The complainant referred to new appointments in late August. She sent an email to senior managers to the effect that we needed to beef up the team. She asserted that when the Technical Manager was appointed, she knew that Mr. A was presenting her – the complainant - as a problem. She said he did not ask the complainant about her appointment. The complainant said she was effectively demoted – she was disheartened and unmotivated, - she said she was presented as incompetent. She asserted Maintenance and Production had been a massive part of the problem. The complainant said that on the appointment of the Technical Manager, she – the complainant – faced exclusion and was no longer included in emails or invited to meetings which she would previously have attended.

 The complainant confirmed that at the second meeting with Ms. B she explained how she had changed the SOP to reflect responsibility for processing organic milk across the management team as it was not wholly her responsibility She did not change the version number which she wished she had done – it had painted her in a bad light. The complainant denied that she was not forthcoming re the change to SOP 25 – she said when Ms. B asked me why I told her and explained the reasons – the process had been in place before she came to site X and she insisted that she answered every question.

           The complainant referenced her disciplinary hearing with Mr. B  - she said she had prepared 3 responses to the allegations against her and she read it out but she submitted Mr. B kept interrupting her and was not listening .She disputed that he asked her had she any new facts .The complainant submitted a 9 page document in her appeal to Mr. C She was represented by Mr. Carroll  and had her responses prepared. She said Mr. C said he would follow up – he met a number of different people and asked questions. He compared her role as gatekeeper and accused her of falsifying documents. She insisted there was collective responsibility for the organic milk production – not just her. She said I should have changed the revision number but she was not thinking straight and was very stressed. She reiterated that as Quality Manager she did not have to consult with anyone on the change she made.

           The complainant said that after her dismissal she took time out until Christmas to destress.In January 2020 she was successful in getting a place on a Training in Leadership course. She worked at a Covid Test Centre for 9 weeks and was appointed Clerical Officer in the local hospital. Currently she works as a Grade V in HR in the hospital. She had been in receipt of illness benefit and had been prescribed antidepressants.

      Under cross examination, the complainant accepted that she had a pivotal role within the company as Quality Manager and confirmed the staffing structure. She confirmed that she received the terms of reference from Ms. B for her investigation. She confirmed that she did not raise Ms. B’s qualifications or independence with her. She said she would not have been familiar with disciplinary procedures.  The complainant did not accept that she was not forthcoming when the SOP change was raised by Ms. B. She confirmed that she mentioned the SOP to the Production Manager after she had changed it. She confirmed that it was normal practise to give a new version number on changing an SOP so that it is clear when it was amended. It was put to her that she wanted to share responsibility for the organic milk across all senior managers. She replied she did not control the whole process and that the other managers were involved in the production process. She accepted that SOPs were a big part of her role as quality manager and gatekeeper. It was put to her that she only decided to change the SOP after the investigation commenced when the matter of disciplinary procedures was raised. It was put to the complainant that she only disclosed her actions when it was discovered by the Investigator. The complainant accepted that she acted wrongly. The complainant accepted that she did not raise the issue of how hastily the disciplinary meeting was convened or raise any complaints about representation with Mr B.

           The claimant was asked if she was aware of the DEA and she replied she knew some colleagues in it but she never thought she would need it. She confirmed in her interview with Ms. B that she was aware the flushes did not happen and that it had always been that way since she started 5 years previously. When asked if she raised it with Mr. A she advised it was that way since she started. It was put to her that when Mr. A asked for the procedure to include a flush and the complainant opposed it that Mr. A accepted her position - she had last call on SOPs.

          The complainant indicated that she got on fine with Mr. A – he had a different management style to his predecessor Mr.D. The complainant confirmed she was aware that the outcome of the investigation was that serious misconduct was being considered by the company and that that could result in her dismissal if the case against her was found to be true. She was questioned as to why she did not seek different representation.

           When it was put to the complainant   that Mr. B gave her an opportunity to present her case, she replied he questioned me on allegation 3. It was put to the complainant that Mr. B gave evidence that he questioned her on all 3 matters, the complainant responded that that was not her experience. The complainant suggested that the process was predetermined and responded to the respondent’s representative that this was payback for the quality issues that had arisen during the year. It was put to the complainant that Mr. B said in his evidence he did not make any decision until he had given the complainant an opportunity to respond. It was put to the complainant that when Mr. B reflected on the matter he had concluded that because of the changing of the SOPS the relationship of trust and confidence was gone. The complainant said she explained why she changed the SOP and that quality was as important as production and maintenance. It was put to the complainant that the case at issue was changing the SOP and she confirmed that she changed it so that the change would not be visible.

           It was put to the complainant that when she lodged her appeal to Mr. C that she had formed the view that Mr. A had formed the opinion that she was incompetent and was a key influencer in her dismissal, the complainant responded that she believed Mr. A was propagating that quality was an issue. It was put to the claimant that Mr. A   had intended that the change to the SOP to be in the context of going forward - and that the change was not made owing to her input.  It was put to the complainant that this was different to her changing the SOP after an investigation had commenced. She replied she did not up the revision number, that Mr. A asked the girls to change it. It was put to the complainant that it did not happen when she gave her opinion on the matter. It was put to the complainant that she had contended that the appeal was flawed and did not take account of the statements of Mr. A and Ms. W re the C audit, that Mr. C did take account of the statements, that he had spoken with them and nobody had said that the  question posed by the auditor was not hypothetical. It was put to the complainant that Mr. C did consider sanctions short of dismissal but had found a fundamental breach of trust on the part of the complainant who had responsibility for overseeing SOPs.

           The complainant gave an account of her efforts to mitigate her loss following termination of her employment. She had applied for 50-60 jobs. She wanted to move away from Quality work after what had happened and was seeking work in the administrative field. The complainant said she had acted stupidly, she panicked and did not know why she did not update the version, she did not think it through and had reacted to the general treatment she had received.      

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Dated:   07/06/2023

Workplace Relations Commission Adjudication Officer:  Emer O'Shea

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