Howell v Forest Laboratories Ireland Ltd

• Jurisdiction: Ireland
• Judgment Date: 16 July 2015
• Judgment citation (vLex): [2015] 7 JIEC 1603
• Date: 16 July 2015
• Docket Number: UD1660/2012
• Court: Employment Appeal Tribunal (Ireland)

EMPLOYMENT APPEALS TRIBUNAL

CASE NO. UD1660/2012

APPEAL OF:

James Howell

and

the recommendation of the Rights Commissioner in the case of:

James Howell

and

Forest Laboratories Ireland Limited

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman: Mr D. Hayes B.L.

Members: Mr T. O'Grady

Mr S. Mackell

heard this appeal at Dublin on 16^th January 2014 and 16^th July 2015

1 The determination of the Tribunal was as follows:

2 This case came before the Employment Appeals Tribunal by way of an employee appealing against the decision of the Rights Commissioner reference r-114402-ud-11/JT dated 10^th October 2012.

Respondent's Case

3 JW told the Tribunal that he is the manufacturing production supervisor and has responsibility for the safety of employees. He has to ensure that product is manufactured within the guidelines.On the 10^th March 2011 he was in Room PR25 and he observed the appellant asleep in the ante room of PR24. Employees have to gown up and put on masks in the anteroom. He knocked on the door to get the appellants attention. The operator BH who was in the PR room came to the ante room. The appellant awoke and he spoke to the appellant through the door. BH was loading a blender at this time and this is a two man operation. The material is added to the blender in sequence and it is the practice that two employees do the physical work to ensure that the correct sequence is completed. He spoke to the appellant and reprimanded him. The appellant gowned up and the supervisor was not on the site. He documented the details in an email to his manager GMc on the 10^th March 2011.

4 He met with the appellant, PMcG the appellant's representative and GMc. GMc went through the sequence of events. The appellant admitted sleeping on the job and that it was not his first time to fall asleep on duty. GMc told the appellant that this was a very serious matter. The appellant and BH were both responsible at this time. The fact that the appellant was asleep could have resulted in the quality of the batch being called into question. The appellant did not approach him to tell him that he was tired or fatigued. If the appellant had not woken up it could have been a problem for the respondent.

5 In cross-examination he stated that Room PR 25 is a separate room from 24. They are sealed and separate apart from a window. The witness was doing a clearance at this time and MR was in the room. He could not recall two other people being in the room. He did not feel it was necessary to interview the three people in the room. He interviewed BH but he did not have it documented. The appellant commenced work at 6.30a.m. The product was checked at 7.30a.m. The QA checked the standard of the material and he did not ask the QA staff if the appellant was asleep. A check is undertaken prior to the product being signed out.

6 The witness commenced work at 6.30am on the 10^th March 2011. He entered PR25 between 7.40-7.45am. He went to PR 25 and checked raw materials. After he checked the material he observed the appellant sitting in a chair and he banged on the window vigorously.

7 BH told him he did not know what the situation with the appellant was. It was an awkward situation for BH who knew that the appellant was asleep. BH entered PR 24 and the appellant stood up. He was aware that the appellant's wife just had a baby. The appellant did not mention any difficulties in this regard. GMc was responsible for the investigation, the witness was party to the investigation and he had no input after that. BH was interviewed before the appellant was suspended. He attended the disciplinary meeting and he met with FH (the head of manufacturing) and GMc before the disciplinary meeting. The decision to dismiss the appellantwas made by GMC and FH. The witness was not asked for his view of the dismissal. He did not offer anything at the meeting regarding the decision to dismiss the appellant.

8 In re-examination he stated that the appellant did not deny that he was asleep. The appellant told him the reason for his tiredness was that his wife had a baby and he did not get much sleep.

9 The meetings were held within twenty minutes of each other on the 10^th March 2011. The appellant was suspended after the two meetings. He could not remember if he spoke to the appellant...