Orr v Boston Scientific Ltd

CourtEmployment Appeal Tribunal (Ireland)
Judgment Date21 May 2007
Judgment citation (vLex)[2007] 5 JIEC 2102
Date21 May 2007

Employment Appeals Tribunal

EAT: Orr (claimant) v Boston Scientific Limited (respondent)


Claimant(s) :

Mr. Jarlath McInerney, McInerney, Solicitors, Cleggan House, 46 Eyre Square, Galway

Respondent(s) :

Mr. John Brennan, I B E C, Ross House, Victoria Place, Galway


Employment law - EAT - Unfair dismissals - End of production line - Defective product - Dangerous breach of quality procedures - Final written warning - Gross misconduct - Whether dismissal unfair - Unfair Dismissals Act 1977 to 2001





Margaret Orr, 77 Rian Luachra, Ballybane, Galway


Boston Scientific Limited, Ballybrit Business Park, Galway



I certify that the Tribunal

(Division of Tribunal)


Ms. E. Kearney BL


Mr. J. Redmond

Mr. T. Kennelly

heard this claim at Galway on 27th March 2007

and 21st May 2007

Facts The claimant was dismissed as a result of breaches in her monitoring duties on a factory production line that were alleged to amount to misconduct. The claimant was already on a final written warning and did not receive notice of termination. The claimant alleged that she felt unable to go through the grievance procedure fully.

Held by the EAT that the evidence adduced did not demonstrate that the respondent had no alternative but to dismiss the claimant. The entire reason for the dismissal was not conveyed to the claimant. The decision to dismiss was based on the fact and not the substance of the final written warning. The claimant would be awarded Eur16,380 pursuant to the Unfair Dismissals Act 1977 to 2001.

The determination of the Tribunal was as follows:-
Respondent's Case

The respondent (hereafter referred to as R) called to give evidence a HR executive (hereafter referred to as LM). LM said that R employed some three thousand people in the manufacture of medical devices for the human body. Product quality and integrity were crucial. R was heavily regulated by monitoring entities in many countries. Such monitoring entities could close down R. In 2005 R had less than twenty dismissals but the claimant (hereafter referred to as C) was dismissed with effect from 7 July 2005.


The Tribunal was furnished with a copy of a letter to C dated 19 July 2005. It contained the following:


“… Having conducted a full and thorough investigation, we are left with no alternative but to terminate your employment due to an act of gross misconduct whereby you failed to comply with Company policies and procedures and you disregarded Company protocols. …


On June 22, 2005 it was discovered that 2 units frombatch number 7759922 from the PTC 1 product family were damaged. The damage to these units consisted of the tip end of the units being pressed, and subsequently damaged between the lid and the tray of the unit. This product had been assembled on June 15, 2005.


On June 15, 2005 you were working on the Label reconciliation and Final Inspection step as per Procedure 90031968. The Operations Log shows that you worked on this step….


As per the procedure …, you are required to inspect the product to, “…visually inspect each unit to ensure that the seal is uniform and continuous and the unit is secure in the pouch, SBS card or tray per the relevant pouch/tray seal procedure.” Your step is the last inspection before the unitleaves the cleanroom.


The 2 damaged units were brought to your attention on June 27 2005. This was the first opportunity to speak to you about the damaged units because you had been on holidays during the week of June 22, 2005.”


The 19 July 2005 letter continued by saying that a supervisor had alerted C “to the fact that there had been an issue on the PTC 1 product” and that the said supervisor, together with a “Quality Engineer” then met with C to go through the “Quality Note” which outlined the product issue and C's role in it. The letter went on to say:


“At that meeting you said that you had seen the units and that it was clear that the units were rejects.


During the meeting in Human Resources on June 27, 2005 you admitted that the units were damaged and that it was obvious the units had not been properly picked up at the Final Inspection Step. You also said that you were aware that the situation would be a Quality Incident. You said you understood the seriousness of the issue …. Due to the seriousness of the issue at hand you were suspended with pay until the outcome of the investigation.”


The 19 July letter stated that the witness (LM), the supervisor and C met again on 6 July 2005. The letter continued:


“At this meeting you were given an opportunity to add further points that you wished to add before the Company took a final decision in the matter.


A final meeting took place on July 7, 2005 to inform you of the outcome of the investigation. The outcome of the investigation is that you clearly did not comply with the Procedures outlined above. No other possible explanation could be identified as a result of the investigation. If the procedures you were responsible for had been adhered to then the 2 damaged units would have been found during your inspection.


As you are aware, our finished products are used in the human body and, had any of these products made their way into general supply, the outcome could have been fatal.


You were advised that the company was left with no alternative but to terminate your employment with immediate effect taking into account the findings of the investigation. In this regard we have further noted that you are already on a Final Written Warning for Breach of Procedure and that dismissal is the next step in our Corrective Action Procedure. Notwithstanding this, however, given that the incident in question amounts to Gross Misconduct, you are not entitled to notice of termination of employment.


You were advised at our meeting that if you wished to appeal this decision, you may do so by writing … within two weeks of this letter, July 19, 2005, setting out the reasons for your appeal. Your P45, other documentation and all monies owing to you will follow by post.”


LM told the Tribunal that R (the abovementioned respondent company) had met C to get C's “side of the story” and that C had said that she had told her supervisor that she felt uncomfortable working in that area of R's operation. However, C had not been able to recall when this had happened. C said that it had made her nervous that someone else had been terminated. Also, saying that she had had family in hospital, C spoke about her personal circumstances.


LM stated to the Tribunal that C had received written warnings for absenteeism and, in February 2007, had received a final written warning for a quality incident. LM did not believe that C had appealed the February warning which would be active for twelve months. When someone was on a final written warning the next step was to terminate. Asked if this was always the case, LM replied that sometimes people get extensions to warnings and that each case was taken on its own merits.


It was put to LM that C had said on her E.A.T. claim form that she had felt under pressure and had asked for a move. LM replied that she had not been told of any such discussion. At a meeting on 6 July 2007 C said that she had told her...

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