Complainant

Respondent

Anonymised Parties

Worker

Employer

Representatives

Eric Furlong Coghlan Kelly Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Section 13 of the Industrial Relations Acts, 1969

CA - 00056903

30th May 2023

The Complainant alleges the sanction of dismissal was disproportionate. The Respondent argues that the Complainant was dismissed during her probationary period for performance related issues.

The Complainant started working for the Respondent on 8th November. She did her JBS on  5th December. It took four weeks to complete it. She was then put on the training line. The more experienced people, prior to her completing her training, signed off on the sheets. She did it after her training was completed. She commenced that part of her role after 5th December. 

On 16th December, the Complainant whilst working on the production line, checked with Shane what size the bushing was. She admits that that was a mistake. A production ran using that bushing, the incorrect bushing. The following morning, she was asked about it. She immediately admitted that she relied on Shane’s observations and did not check the size of the bushing for herself.

There was a meeting about the incident on the 19th. She was invited to that meeting by letter dated the 18th. Ms O’ Hanlon then when on holidays on the 19th. Whilst she was waiting for a decision she was moved to a different line, a full working cell, to carry out the same tasks that she was under investigation for arising from her error on 16th December.  She worked there without issue until the date of her dismissal. She was even processed checked on that line by her trainer and she received full marks. She was then notified of her dismissal on the 8th February. She appealed that on the 9th February. Her appeal was not successful.

The Complainant started on the 8th November 2022. The Respondent is a medical device company and has 1000 employees. The Respondent has a very stringent training process. The Complainant was trained in QI 0084, it is a process control procedure for assembly. The Complainant was trained with another employee, who was a supervisor. That Supervisor would only sign off on her training if she was proficient in the task.  It is vital that all of the procedures are followed correctly at all times. Breaches of procedures can potentially have very serious consequences, up to and including the death of a patient.  

On 16th January 2023, the Complainant failed to follow this produce. She failed to verify a bushing. That was her role. She assigned her work number to the product.  In doing so she led the Respondent to believe that the procedure for verification had been followed. She actually didn’t check the bushing. At the disciplinary meeting she admitted that she didn’t verify the bushing. She just took her colleague’s word that it had been done and that it was the correct one. She also admitted signing her work number of the order confirming she had checked the bushing.

After the incident she was moved to a different cell, cell 3. She remined there for three weeks before she was dismissed. There were no issues with her performance on that Cell.

There was an investigation. However, the Complainant was never given the notes and/or statements taken from other employees. The Respondent admitted that they were relied on when making the decision in relation to the Complainant’s employment.

She was invited to and attended the disciplinary meeting.  Ms X was there as a note taker.

At the appeal hearing there were no additional circumstances and no mitigating submissions, so the appeal was not upheld. The Complainant wrote to the Complainant setting out the reasons for the error, what she as learned from it. She outlined her work record on cell 3 which was glowing. The issue in this case is not how she got on in Cell 3, it was the fact that she knowingly failed to follow the sign off process.

XY, He was the trainer. He trained the Complainant. The Complainant was trained on various tasks and jobs on machines etc. That can start and finish within a few weeks or can go on for years depending on the type of work they are doing. QI00084 – That is a verification procedure. If you are trained to verify a bushing, you are trained to check what the operator has written on the paperwork, and what should be written down on the paperwork and is physically in the machine. They all should be the same.  Once you confirm it has been written down correctly and is the same as that printed on the paperwork and is the same as what is on the machine you sign the paperwork to confirm that it has been checked and all if correct.  If the wrong bushing e.g. 35 diameter bushing  is placed on the welder but it should have been a 38 diameter busing,  that means that the run will go through but all of the product will be defective. You won’t be able to detect any defects in the welds. The consequences of that are that they could end up in a patient. That is extremely serious. The patient could die as a result.

On 16th January, the paperwork showed in print that it should have been 35 diameter bushing, the operator had written down it was 35 diameter bushing and the physical bushing was not checked. It was a 38 diameter. The verifier signed the paperwork to confirm it was all correct when it wasn’t. If that was placed into a patient, it would have been fatal.

The Complainant said that her training was not complete. She was trained on JBS (Job Breakdown sheet) 5th December 2022. It breaks down the job into steps. With each step there are key points and reasoning for each one. The practical side, there would be a person physically checking to see if she was doing it right. Then the Qi0084 theory is read out to the Complainant. If the trainer is satisfied that the trainee is competent, then and only then will they be signed off.

The Complainant stated that this mistake is common. It is not common. In the last year there hasn’t been one incident of it. She also said that it was a technical breach, therefore it was not a serious break. It was a very serious breach.

The Complainant states that she was told that her training would last six months. On this particular task, the subject matter of this claim, she was fully trained and signed off on. There is other training in relation to different parts of the role. That can go on for longer.

At the time of the incident, the Complainant was on a training cell. The person at the start of the line was a trainee and the welder was a trainee. There was an inspector who was very experienced on the line with them. Mr. XY did direct the experienced person what to do and when to do it. It was the trainee operator who told the Complainant the size of the bushing. That size was wrong. The other two people on the production line didn’t have any role in the error.

Her JBS was finished on the 5th December. She was still categorised as a trainee. On 4th January the theory was read to her by Mr. XY. She states that there are booklets on the lines. There are lots of JBS’s in the manual. There is only one applicable to verifying the bushing.

The devices in question did not make it out of the factory. She was asked to explain what she did. She said she did explain it all in detail and it was because of that that the mistake was spotted. That is not correct. The person who came in on the shift after her spotted it and it was only then that she was asked about it. She admitted what she had done. She was moved off the training line then and was moved to a production line, two lines over. It was a full production line. There are more experienced people working on that line and therefore more people to keep and eye on her. She worked on that line for three weeks. The fact that she knew what she did was wrong and acknowledged it was a good thing, but she needed to be monitored carefully.

Ms. ZZ. She is one of the Senior HR officers.  In relation to the appeal she received and reviewed the work order, the disciplinary process and the appeal letter.  She did not hear the appeal. Mr. CC heard it. The Complainant was invited to the hearing by letter. She was asked if she had read everything and if she wanted to say anything.  She confirmed that she had not carried out the third part of the process. It was on that basis that we upheld the dismissal. There were mitigating circumstances submitted but we did not deem them to be relevant.  She said that were colleagues who would confirm her work performance. That wasn’t relevant because she had admitted the error. The dismissal was upheld due to the seriousness of the breach. If that device had made it way out of the factory a patient could have died. That is extremely serious.

The Complainant stated that another employee breached a procedure but only got a warning. That person did not have to sign their name on any document verifying that something was done. The Complainant did. The consequences of the breaches are very different. It is not comparing like with like.

The Complainant states that if it was such a serious breach, she should have been suspended pending the investigation. She wasn’t. She was allowed to work for another three weeks. It is accepted that none of the progress she made in those three weeks was taken into consideration.

The Complainant was dismissed during her probationary period. That period didn’t expire until the 8th May 2022. The Respondent is entitled to dismiss someone during their probationary period. Her dismissal was purely performance related.

The Complainant worked for the Respondent, a medical device Company. She commenced her employment on 8th November 2022. She was trained by Mr. XX. On the day of the incident that led to her dismissal she was working on a production line. There was a three- step verification process in relation to the bushing used on the machine. The Complainant accepts that she only personally checked two out of the three steps. She relied on someone else to tell her the size of the bushing instead of checking it herself. Unfortunately, the size of the bushing was incorrect. The consequence of that could have been extremely serious. Had the product made it way out of the factor and into a patient, that patient could have died. The error was spotted by another employee on the following shift. The Complainant when asked about it the following day and did immediately admit that she did not check the bushing size herself but relied on someone else’s word.  She knew that that was the wrong thing to do. Despite the seriousness of the breach of procedure, the Complainant was moved to a different line where she continued to work, without issue for the next three weeks. The Complainant argued that if the breach was as serious as the Respondent is saying that it was, she should have been suspended pending the outcome of the investigation. Instead, she was allowed to work on. The Respondent states that there is a process they had to work through before coming to any conclusion on the Complainant’s future. She was moved to a line with many more experienced people on it so they could all keep an eye on her.

Save for the investigation notes not being given to the Complainant, the Respondent’s disciplinary process was satisfactory.

The Complainant argues that the sanction was disproportionate to the breach. Before I deal with proportionality it is important to note that the Complainant was dismissed during her probationary period.  The Respondent argues that it is perfectly entitled to dismiss the Complainant for poor performance during her probation period with or without a disciplinary process. They rely on the recent Court of Appeal decision O’ Donovan v Over – C- Technology Ltd 2021 IECA 37 wherein it was stated “Firstly, that an employer can terminate employment for any reason or for no reason, provided adequate notice is given. This applies whether or not the dismissal occurs during the probationary period. Secondly, that the principles of nature justice apply to cases involving dismissal for misconduct, but not to termination on other grounds”. “During a period of probation, both parties are and must be free to terminate the contract of employment for no reasons or simply because one parties forms the views that the intended employment is for whatever reason not something with which they want to continue. Neither party can hold the other to the continuation of the employment against the wishes of the other. I do no accept that a Court can imply a right to fair procedures …….”

It is not contested that the Complainant was dismissed during her probationary period. It is also not contest that she was dismissed for a performance related issue. Furthermore, it is not contested that she was paid in lieu of her notice.  Therefore, the Respondent was entitled to dismiss her up to the 8th May for no reason at all. In this case, she was informed at the commencement of the procedure that she could receive a sanction up to and including dismissal. She was given the right to have someone with her at the meeting, but she declined. She was given an opportunity to be heard. She was given a right of appeal. The Respondent did not actually have to go through this process however in the interests of fairness to the Complainant they did. Based on that the issue of proportionality isn’t something that I have to address.

Having considered all of the evidence, I find that the complaint is not well founded. The Complainant is no longer working for the Respondent and I can find no fault (save for the investigation notes referred to earlier) in the process, Therefore, I am not making any recommendation.

The Complaint is not well founded. For the reasons set out above I am not making any recommendations in this case.

Dismissal, Probationary Period, Poor Performance.