John Jeffreys v Hospira Australia Pty Ltd
[2010] FWA 4945
•5 JULY 2010
[2010] FWA 4945 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
John Jeffreys
v
Hospira Australia Pty Ltd
(U2009/14046)
COMMISSIONER GAY | MELBOURNE, 5 JULY 2010 |
Termination of employment - arbitration.
[1] On 25 November 2009 Mr John Jeffreys lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy at Fair Work Australia. Mr Jeffreys (the Applicant) had been employed by Hospira Australia Pty Ltd (the Company, the Respondent) at Mulgrave Victoria in the production of pharmaceutical products from August 2000 until advised of his termination on 19 November 2009.
[2] The reason given by Hospira for the termination was that Mr Jeffreys had failed to check a fellow employee’s work which function also included verifying associated paperwork. An error in production had resulted in a very valuable pharmaceutical production run or ‘batch’ being manufactured beyond specification. As a consequence of Mr Jeffreys’ breach of Hospira’s manufacturing policy and bearing in mind previous performance issues, including a written warning given five months earlier, it was said that Hospira had lost the necessary confidence and trust permitting his employment to continue.
[3] The dismissal was said to be unfair because Mr Jeffreys was used as a scapegoat, that the events of the day were much affected by error not referable to Mr Jeffreys, that the policy said to have been breached was unclear, ambiguous or inconsistently applied, that the employment of others more directly and or equally or similarly responsible for the error was not terminated and that, in all the circumstances Mr Jeffreys’ action, of itself, did not justify dismissal.
The Hearing
[4] On 16 January 2010 the matter was listed for arbitration on 12 and 13 April 2010 with Directions for filing of argument, witness statements and material in support to occur during February and March. When the case came on Ms S Allison, solicitor, of the National Union of Workers (NUW) appeared for Mr Jeffreys and Mr R Dalton, of counsel, by permission for Hospira.
The Witnesses
[5] Mr Jeffreys gave evidence on his own behalf and Mr Anthony Davies, a Hospira employee of long standing in the work to be considered and also a NUW shop steward currently employed as a Subject Matter Expert, gave evidence for the Applicant. For the Respondent, evidence was given by Mr Scott Alexander Eckhardt and Ms Jacqueline Barbara Black, Production Coordinators on afternoon shift in the Filling Department, Mr Roger Frank Mercer the afternoon shift leader in the Filling Department, Mr Ian James Caddaye, Filling Manager and Mr Andrew Richard Hodder, Hospira’s Manufacturing Manager.
The Issues
[6] The case was hard fought, with many details considered and contested as to the work and as to: the events of the night in question; the relevant Standard Operating Procedures (SOPs) and Operator Instructions (OIs) said to apply; the real application of those policies on the shop floor; the matter of issuing warnings in the past, their present relevance and the application of the Company’s discipline policy generally; the disparity of treatment (in Mr Jeffreys’ submission) as between the varying penalties exacted; the procedurally flawed and unfair procedure adopted and, by misinterpretation and wrongly placing emphasis upon Mr Jeffreys’ response to the Company’s investigations inquiring into the events in question, and subsequently, wrongly concluding that Mr Jeffreys was neither contrite nor accepting of responsibility properly to be shouldered by him.
Jeffreys’ Duties
[7] In summarising the competing argument it is not my intention to recite all the evidence – although it has been considered in its detail. It will however be necessary to follow some of the lines of argument in detail – particularly as they relate to Hospira’s SOPs and OIs as interpreted by the Company and as to their application on the floor and said by the Applicant to be apparent in the evidence. Where a conclusion is reached on what I consider to be a key issue I have sought to set out my reasons for having arrived at a view or for having accorded an influence importance.
[8] Although Mr Jeffreys was engaged as a machine operator he had worked for some ten years on afternoon shift upon a range of duties which are given in his witness statement (Exhibit J1), as working in the wrapping room, equipment preparation, autoclave, operating hot air ovens, decontamination and filling machines and filter preparation and testing. These functions and that being performed at the time of termination of Mr Jeffreys’ employment, verification of mixing, can be seen to be central to the manufacture of pharmaceuticals – the mixing of raw materials according to exact standards of both quantity and quality.
Hospira’s Regulatory Obligations
[9] It is common ground that Hospira, in the national and international distribution of its products must comply with the pharmaceutical standards regimes of many lands. Quite apart from its principle goal of producing medicines on a commercial basis to benefit their users, one can readily appreciate concern for Hospira’s legal liability in the event of faulty preparations reaching the marketplace. The consequence commercially were Hospira found to no longer satisfy the regulatory standards of the many national food and drug administrations which currently grant licence for the marketing and the distribution of Hospira’s product is readily apparent.
[10] With these serious matters in mind Hospira, in manufacturing pharmaceutical products, can be readily understood to place at the highest level of importance the observation by its staff of its operating procedures intended to ensure the quality of its products. It does this by maintaining operating procedures which relate, where relevant, to the specific qualities of various compounds in production. The present case calls up many aspects of these practices and procedures, including training of staff, said to ensure quality control as its employees go about their day to day tasks.
The Termination
[11] Mr Jeffreys’ employment was terminated because of conclusions reached by Hospira as to the manner in which he had performed his duties on the afternoon and evening of 28 October 2009. On that day Mr Jeffreys had been working on Hospira’s afternoon shift as ‘second operator’, that is, in a subservient or support role, to Mr Roger Mercer. Mr Jeffreys and Mr Mercer’s task as ‘mixers’ on afternoon shift was to prepare and mix the ingredients which constitute an injectable drug used in treating cancer, Irinotecan.
[12] As will be set out below in some greater detail, the mixers, upon receiving from Hospira’s Dispensary the necessary ingredients, prepare the mixing area by ensuring clinical cleanliness, check the quantities of powders and any liquids delivered according to a Dispensing List and, after various paperwork is completed, literally mix the ingredients. Many of these activities are dealt with in the SOPs OIs and Batch Record Forms (BRFs) which set out the steps to apply to various mixers.
[13] Mr Mercer was the Team Leader of the relevant staff on afternoon shift, having held that position for several years. Prior to his appointment as afternoon shift Team Leader, Mr Mercer had had an even more senior role, as Supervisor on night shift, a position he was forced to relinquish for family considerations. Mr Mercer is a very experienced Hospira employee having performed such roles, and others, over his 18 years of employment with the Company. As his role on the occasion in question is central to the dismissal in several ways a good deal of attention must, regrettably for Mr Mercer, centre on him. None of this no doubt unwanted attention should have the affect of attracting any further opprobrium to Mr Mercer, it being generally acknowledged that, despite the events of 28 October 2009, he is a very good career employee. Like Mr Jeffreys he made a very serious error – which in turn in large part was a consequence of the Dispensary making several serious errors – and this case is about the confluence of these events and then their consequences.
Jeffreys’ Experience and Capacity
[14] Before setting out the narrative of events of the afternoon in question it is useful to note the competing descriptions of Mr Jeffreys’ experience in the mixing function. While Mr Jeffreys’ decade long experience in the departments and roles given above included significant periods mixing – including with Mr Mercer and Mr Eckhardt – Mr Jeffreys felt his training to be incomplete and ad hoc as it related to mixing. Mr Jeffreys’ evidence was that his exposure to mixing, via a ‘buddy’ system, had not given him a soundly based, confident expertise. Hospira’s extensive training paperwork painted a quite different picture.
[15] In Mr Jeffreys’ evidence he had been pressured in mid 2009 by afternoon shift Production Coordinator Mr Eckhardt, to sign a training form signifying that he had been fully trained in mixing (Exhibit J1, paragraph 6). After Mr Jeffreys had initially declined to sign, having indicated that in his view he was not yet competent in mixing, it was Mr Jeffreys’ evidence that Mr Eckhardt became frustrated. Mr Jeffreys said he felt particularly that he “needed more experience in weighing the raw materials and the calculations. Mr Eckhardt said that I needed to sign the document” (Exhibit J1, paragraph 6). A few days later Mr Jeffreys said Mr Eckhardt again sought for him to sign, and after several such episodes, Mr Jeffreys signed the document (Exhibit J1, paragraph 8).
[16] Mr Eckhardt’s evidence was that having known and worked with Mr Jeffreys for approximately 10 years before being appointed as Production Coordinator they had often ‘mixed’ batches together in the period from 2002 to 2004 and that Mr Jeffreys was “…more than competent” (Exhibit H1, Mr Eckhardt’s witness statement, paragraph 6 and TPNs 1183-4 and 1196). It was Mr Eckhardt’s evidence that he had never pressured Mr Jeffreys to sign training forms and that Mr Jeffreys’ evidence to that effect was false (Exhibit H1, paragraph 13(a) to (d)). Mr Mercer’s evidence was that he had mixed with Mr Jeffreys on six or seven occasions over the last decade. On each of those occasions in Mr Mercer’s evidence Mr Jeffreys “… was aware of what was required to perform the mixing tasks in accordance with GMP standards (Exhibit H3, Mr Mercer’s statement, paragraph 9).
The Events of 28 October 2009
[17] Hospira contend that by his actions on 28 October 2009, Mr Jeffreys failed to discharge his duty as a ‘second operator’ in verifying the production process surrounding the Irinotecan. In performing his functions in the way set out below the employer alleges a breach of its Good Manufacturing Process (GMP) occurred, together with a breach of its SOPs and OIs for batch formulation. It is with these breaches in mind, considering Mr Jeffreys’ previous work record and his attitude and response after the 28 October that the termination is said to be justified.
The Work and the Regulatory Regime
[18] Mr Jeffreys’ description of the work being performed on the shift in question is described in his statement as follows:
“4. Mixers are responsible for weighing and preparing raw material for a mix, preparing the tank, warming and mixing the mixing batches. The mixing role is considered one of the most important roles in the factory because of the responsibility it entails. If a batch is not mixed correctly, the end product is ruined and the whole production is wasted. Consequently, it is crucial to ensure that the right materials and right amount of materials are mixed. There are a number of checking processes to ensure the correct materials are used. I have summarised the process below.
a. Dispensary initially selects and weighs the raw materials for a batch. The weighed raw materials are placed in sealed bags with a sticker on the outside of the bag identifying the raw material, the used by date of the raw material and the weight of the raw material in the bag.
b. The raw materials are then provided to the mixing department. The mixing department is also provided with a “bill of materials” which details which raw materials are required for mixing and the weight of the raw materials.
c. A mixing operator then reweighs the raw materials to ensure the right weight and amount of raw materials has been provided by dispensary. The mixer checks the amount and weight of the raw materials against the bill of materials. A mixer prints out the weight of raw materials which should correspond to the weight on the bill of materials.
d. A second operator then checks that the bill of materials and the weight correspond, and that the identification stickers and the bill list correspond. The second operator must verify the paper work by signing off on it.
e. Prior to the raw material being mixed, the identification stickers are taken off the bags and placed on the bill of materials.
f. The raw material is then mixed.
g. Before the mixed raw material is filled, the co-ordinator must check and approve all paperwork.
h. After production the batch auditors check paper work.
i. Finally, the finished product is tested by Quality Assurance.” [Exhibit J1]
The term “bill of materials” is interchangeable with the terms “Dispensing List” and the latter term is used in this decision to refer to the detailed list of ingredients sent by the Dispensary to mixers Mercer and Jeffreys.
[19] The pharmaceutical product relevant to the present case is, in its finished form, to be injected into cancer patients. It will be readily appreciated that great care is taken in the production of such drugs to ensure scrupulous adherence to operating procedures designed to eliminate, as far as possible, error, including human error. Such standards are required and sought to be assured on a number of planes. It is necessary not only to ensure that the compounds are manufactured wholly according to their scientifically detailed list of constituents and in sterile or properly cleaned rooms but also by ensuring that those who carry out the ordering, delivery, preparation, mixing, storing and packaging for distribution do so subscribing to stringent documented procedures.
[20] There is also however a further layer of procedural oversight by which means the careful activities of a Hospira worker (in this case Mr Mercer), whose prime function is to receive, authenticate and mix the production, is superintended. The additional vigilance is the responsibility of a ‘second’ operator who is closely involved (occasionally their roles interchange) in the preparation of facilities and ingredients and then with the first operator in the actual mixing of a batch. By this ‘second’ operator, Mr Jeffreys, functioning with but insofar as the verifying role is concerned independent of, the primary mixer Mr Mercer, the integrity of the process and thereby the product is sought to be assured.
[21] Although disputation, regrettably, attends several aspects of the process (as will be seen by the outline given below) the function of a person checking or verifying the work of another is as important in this industry as it is in any other where life is at risk. Disregarding the more exotic potential threats to pharmaceutical production (such as sabotage or psychotic behaviour), being guarded against is the consequence of such a manufacturer’s most insidious opponent, human error by an otherwise conscientious employee.
[22] As will be seen in the present circumstances, a clearly wrongly manufactured production run passed layer after layer of Hospira’s surveillance dragnet until ultimately identified by a vigilant Quality Assurance Officer. The value of the wasted batch of Irinotecan was given as $800,000.
[23] As with any forensic examination of cause, reasons are seen to exist which go to explain, if not excuse, error made by staff otherwise committed to their task. In more explicit terms this case is about Hospira’s action in selecting Mr Jeffreys alone of those involved for the harshest sanction and turns also upon Hospira’s training standards, upon the existence of procedures said to be extant but not followed, upon an unfair and selective reliance on previous infractions, on a disparity of treatment with fellow employees and upon a wrong headed determination to punish Mr Jeffreys for his failure to appear sufficiently contrite to the Hospira inquirers and to “accept responsibility” in a way which, of itself, then required punishment.
[24] For Hospira’s part, Mr Jeffreys is a careless employee, who, despite encouragement, is slow to assist in the workplace, quick to blame others – fellow employee or management – experienced in mixing, (albeit restricted to the supporting role), who well knew the meaning and obligations of the verification function; that it required care and thoughtful involvement in the work.
[25] Persuasive cases can be made out by both sides to this application as I hope will be clear from an analysis of the events of 28 October and the argument put.
The Events of 28 October 2009
[26] A considerable amount of detailed material went into evidence much of it contested so that for the conclusions which follow to be understood, a detailed treatment of the events and the processes is necessary.
[27] In Mr Mercer’s account the afternoon shift in the mixing department at Hospira’s Mulgrave, Victoria plant was “very busy that day and there were a number of things that we had to get done and it made if difficult because we were short staffed” (Exhibit H3, Mr Mercer’s Statement, paragraph 10). Work was being carried out in both of the Hospira ‘clean’ rooms available to these employees to mix the various chemical ingredients provided to them by the Hospira Dispensary. As will be seen, it is vital to the mixers’ verification of the ingredients received from the Dispensary that scales, sometimes to fine tolerances, be used. The scales produce a printed read-out and bar-coded receipt slip which, inter alia, states the weight and time of weighing an ingredient.
[28] Of the two relevant mixing rooms, only one, Mixing Room 4, was available for the purposes of weighing verification on that evening because the scales in Mixing Room 6 were not operational. The evidence was that the Room 6 scales had been unserviceable, on and off, for over two years. This prosaic and entirely avoidable intrusion upon the work of the already hard-pressed mixers, a failure to maintain operational scales, was to have a major impact upon Mr Jeffreys and Mr Mercer, their colleagues and Hospira’s commercial interests.
[29] Having commenced their duty at 2.30 pm on 28 October 2009 Messrs Mercer and Jeffreys took the evening meal at about 7.00pm. It is convenient to rely upon Mr Jeffreys’ witness statement, Exhibit J1, in taking up the narrative. It will assist to recall that where Mr Jeffreys refers to the “bill of materials” that is a reference to the principal document received by the mixers from the Dispensary and referred to elsewhere in this decision as the ‘Dispensing List’.
“11. I returned from dinner at about 7.30pm to find out we had to mix a batch of ‘Irinotecan’ by end of shift. I had to return to Mixing Room 6 to finish my duties of cleaning equipment.
12. While I was cleaning equipment in Room 6 Mr Mercer went into Mixing Room 4 to weight (sic) the raw materials up for the batch as there was no scale in Room 6. Mr Mercer did not tell me what he was doing. However, as far as I was aware, it was not unusual practice for a mixing operator to perform duties in paragraph b and c above (see the excerpt at paragraph 12 above) on his or her own. Mr Mercer returned to Room 6 with the raw materials already weighed up, and I started to prepare the tank.
13. As the second operator, I had to verify Mr Mercer’s paper work. In accordance with d above (see the excerpt at paragraph 12 above) I checked that the bill of materials and the weight document corresponded, and that the identification stickers and the bill list corresponded.
14. At the time I noted that the original bill of materials recorded two amounts of lactic acid, but we only had one amount of lactic acid. However, Mr Mercer had amended the bill of materials by crossing out the second amount of lactic acid and writing “NA”. With this amendment the bill of materials and weight document and the bill of materials and identification stickers corresponded. Accordingly, I verified the paper work.
15. I didn’t think to question Mr Mercer on the amendment, as he was an experienced operator, and I was still learning all the processes.
16. I now understand that some mistake had been made by dispensary in only providing one amount of lactic acid instead of two.
17. After we finished mixing the raw materials all the paper work was provided to Mr Scot Eckhardt, Supervisor to check before the batch was filled. Mr Eckhardt did not pick up the mistake in the paperwork, and the mixed material was released for filling.
18. After production of the faulty product, the paper work went to the batch auditors. I understand the batch auditors did not pick up the mistake.
19. I understand that quality control finally picked up the mistake.”
[30] The work performed by Messrs Mercer and Jeffreys could not proceed without the associated paperwork being checked by Mr W Maxfield, the Night Crew Coordinator. Mr Maxfield approved work on the Irinotecan batch continuing after reviewing and approving Mr Mercer’s and Mr Jeffreys’ paperwork, most particularly the Work Order Dispensing List (the Dispensing List). The following morning the Day Shift Coordinator, Mr M Flynn, also approved the documentation in question which permitted a further step to be completed in the batch’s progress to finished product.
[31] Mr Scott Eckhardt Filling Coordinator for afternoon shift was the final supervisorial Hospira employee to deal with the batch paperwork relevant to the questioned Irinotecan. It was Mr Eckhardt’s evidence that he completes two to three such overall audits per shift and attempts to do so thoroughly and quickly. (Exhibit H1, Mr Eckhardt’s statement, paragraph 14(f)). Like Messrs Mercer, Jeffreys, Maxfield and Flynn, Mr Eckhardt also missed the Dispensing List error. The Quality Assurance Department fortunately were more vigilant than these five employees and the fault was finally brought to notice before the Irinotecan was dispatched from Hospira.
The Dispensing List
[32] It will be appreciated given the need for mixing employees at Hospira to understand with certainty what it is that they have to do and what powders and liquids have been given to them with which to do it, that there is real precision required in the handover of material from the Dispensary to the ‘hands on’ operators in the mixing rooms. It should be added that there was no evidence that the operators have academic training in chemistry or pharmacy and it seems that the dispensary lists of chemicals for mixing are generated by computer.
[33] One can appreciate that for their part too, the staff in the Dispensary have to be able to show, in a fashion that is later objectively verifiable, that they have handed over to the mixers the materials, in the required quantities, which accord with the ‘recipe’, in this case for Irinotecan, set out in the Dispensing List. The Dispensary staff does this in their inter-departmental dealings by having the materials accompanying the Dispensing List checked off and weighed into bags. The individual bags are then bagged and these ‘larger’ bags are weighed. When the Dispensary staff have satisfied their own checks, the goods required for a batch are transferred to the Mixers with the Dispensing List.
[34] Colourful stickers (being the relevant weighing receipts), coded and dated are attached to the bags of ingredients by the Dispensary staff. It is not necessary to plumb the depths of detail surrounding the check lists and receipt stickers, except to acknowledge that following transfer to the mixing department and at a time set out in Hospira’s standing orders, the stickers and receipts are taken from the bags of raw materials and, having been re-weighed, are annotated by mixers and glued on the Dispensing List. The system permits verification at each juncture by a second person, either the dispensing verifier, or, after transfer to mixing, by the second operator, in this case Mr Jeffreys, initialling the form.
[35] What is set out above holds true for all forms of ingredients other than liquids. Liquids are dispatched from the Dispensary in bottles which are then required to be decanted by the staff in the Mixing Department, to the exact requirement called for by the Dispensing List. Where there is an amount remaining in a bottle it is returned to the Dispensary. The fine quantities of liquids to be poured and weighed require scales with a fine tolerance.
[36] It was in decanting a liquid ingredient for Irinotecan, Lactic acid, that Mr Mercer failed to subscribe to the Dispensing List and, in turn, Mr Jeffreys and those salaried officers following, failed to realise that the annotation made by Mr Mercer to the Dispensing List had had the affect of significantly diminishing the quantity of Lactic acid to be taken from the single bottle provided. Those who followed Mr Mercer, that is, Mr Jeffreys, Mr Eckhardt, Mr Flynn and Mr Maxfield did not detect that the change to the Dispensing List initialled and dated by Mr Mercer was in error.
The Bottle and Quantity Error
[37] There are multiple pages of procedural steps required to be checked off by the first operator, in this case Mr Mercer, as the mixing process is undertaken. At various stages relevant to the second verifying operator, in this case Mr Jeffreys, he too is required to attest as to his, Mr Jeffreys’ job, having been done. In referring to Mr Jeffreys’ job having been done it is important to state what that means.
[38] Mr Jeffreys’ job required, amongst other functions, that he initial a work sheet to reflect that he had verified that the work said to have been done by the first operator had been done, and done in conformity with Hospira’s SOPs and OIs. Mr Jeffreys’ physical functions extended to the preparation phases of the room’s cleanliness, the equipment and the means of mixing and periods of actual mixing. Mr Mercer’s functions included the checking of the pre-weighed solids/powders received from the Dispensary and the decanting and weighing, for the first time, of the liquid required by the recipe that is the Dispensing List.
[39] Without describing the Dispensing List in a literal way, it is replete with lengthy item numbers for each issue of drug, with work orders, ID numbers, Batch numbers, lot and serial numbers and, by reference to the accompanying GMP and OIs, are coded ‘remarks’. Each chemical item is described, its required quantity given, then the quantity issued given with separate columns for, in this case, Mr Mercer to initial as having received that quantity and for Mr Jeffreys to initial in a “Verified By” column.
[40] The second page of the Dispensing List dealt with Lactic acid – which, as a liquid, is decanted by the mixers, not by the Dispensary. The quantity of Lactic acid required is set out towards the top of the page as 117g. There then appears the necessary detail which set out that two bottles of Lactic acid had been dispatched by the Dispensary. Against the first bottle appears its serial number and then the quantity required to be drawn from that bottle, 80.12g. Space is then given for the mixer to record the “Qty Issued” and then, in the next column space for the mixer issuing the quantity to place their initials identifying them as having issued the amount recorded. Mr Mercer completed the “Qty Issued” column by writing “80.1g” and he placed his initials in the “Issued By” column. There then appears the “Verified By” column mentioned above, which contains Mr Jeffreys’ initials. Finally, there is a “Received By” column containing, I think, Mr Mercer’s initials.
[41] Below this line of information, in an identical format, is the line relevant to the second bottle issued, in the quantity necessary to complete the Dispensing List’s Lactic acid total of 117g, that is, 36.88g. The two bottles, by combining 80.12g and 36.88g, made up the order of 117g to complete the batch – insofar as Lactic acid was required.
The Actual Error and Its Causes
[42] There are several constituent reasons evident in casual relationship to the errors that occurred on 28 October in Mixing Rooms 4 and 6.
[43] The first is that, contrary to what Hospira describes as the practice required by its SOPs, Mr Mercer decanted the Lactic acid alone in Mixing Room 6, having earlier told Mr Jeffreys of his plan to do so, that is, to go to Mixing Room 6 to prepare the ingredients, leaving Mr Jeffreys to perform preparatory work alone in Mixing Room 4. As he organised their duties in this way Mr Mercer said, finally, to Mr Jeffreys “You verify later…” (TPN 1987).
[44] The second is that, for reasons never explained during the course of the case, despite the fact of the Dispensing List, providing to Lactic acid to be drawn from two bottles, only one, not two, bottles of Lactic acid, the ‘first’ bottle (referable to 80.12g), was dispatched by the Dispensary to the mixers.
[45] The third is that, in Mr Mercer’s account, which I have in a general sense accepted, he correctly dispensed the amount called for by the Dispensing List to be taken from the first bottle, that is 80.12g.
Mercer’s Action
[46] It may be recalled that Mr Mercer is the afternoon shift Team Leader. His evidence was that he did not work in mixing very often (2-5 times per month) but on 28 October 2009 as two staff were absent he was required to substitute as Mr Jeffreys’ first operator (Exhibit H3, Mr Mercer’s statement, paragraph 5). Mr Mercer describes himself as qualified in mixing having been involved ‘on and off’ for about 15 years and that he has developed a ‘good theoretical’ understanding of the process.
[47] It is noteworthy for present purposes to record that Mr Mercer, not a person, events were to show, to shrink from personal responsibility, says in his witness statement, in qualification of his theoretical accomplishment, “However, at that time, I had not recently done a great deal of mixing on a regular and consistent basis.” (Exhibit H3, paragraph 8).
[48] Mr Mercer says that while weighing the materials he was interrupted with two or three telephone calls and was therefore “a little distracted” (Exhibit H3, paragraph 14). Whatever the reasons may have been, Mr Mercer decanted only the 80.12g described above and in the column relevant to the ‘first’ bottle completed the ‘Qty Issued’ column by writing ’80.1gm’ and initialled the ‘Issued By’ column. Against the identical columns relevant to the ‘second’ bottle, Mr Mercer added the annotation, ‘N/A’, the date in the ‘Issued By’ column and drew a line across the page in the middle of the ‘second’ bottle entry.
[49] It seems that as part of an inventory control activity the Dispensary will from time to time send more than one bottle of a liquid to the mixers. Mr Mercer opined that in such cases the aim was to use older stock first. It seems also that occasionally an entirely unnecessary bottle is dispatched by the Dispensing Department in which case it is sent back to Dispensary and the Dispensing List marked with the notation ‘N/A’. On such occasions Mr Mercer acknowledged that it was, of course, necessary to ensure that the total amount required (in this case 117g) was taken from the bottle which was supplied.
[50] Having dispensed the 80.12g Mr Mercer, regrettably, did not refer again to the total amount of Lactic acid required, 117g. This total amount required, 117g, was clearly set out towards the top of the Dispensing List above the bottle details with their two amounts 80.12g and 36.88g already described. Having decanted the 80.12g called for from the ‘first’ (and only) bottle provided, Mr Mercer went on to perform the remaining elements of his duties. It followed from these actions that the batch of Irinotecan mixed by Messrs Mercer and Jeffreys shortly afterwards contained not 117g of Lactic acid but 80.1g.
Mercer Returns to Jeffreys in Mixing Room 6
[51] When it came time for the literal mix of the ingredients he had prepared Mr Mercer left Mixing Room 4 (with the operating scale) where, alone, he had performed the role of weighing and decanting the non-liquid and liquid Irinotecan ingredients and came to Mixing Room 6, where Mr Jeffreys had been cleaning equipment and preparing the room for the Irinotecan mix then to occur.
[52] Mr Jeffreys described what occurred then at paragraphs 12 to 14 of his statement as follows:
“12. While I was cleaning equipment in Room 6 Mr Mercer went into Mixing Room 4 to weight the raw materials up for the batch as there was no scale in Room 6. Mr Mercer did not tell me what he was doing. However, as far as I was aware, it was not unusual practice for a mixing operator to perform duties in paragraph b and c above on his or her own. Mr Mercer returned to Room 6 with the raw materials already weighed up, and I started to prepare the tank.
13. As the second operator, I had to verify Mr Mercer’s paper work. In accordance with d above I checked that the bill of materials and the weight document corresponded, and that the identification stickers and the bill list corresponded.
14. At the time I noted that the original bill of materials recorded two amounts of lactic acid, but we only had one amount of lactic acid. However, Mr Mercer had amended the bill of materials by crossing out the second amount of lactic acid and writing “N/A”. With this amendment the bill of materials and weight document and the bill of materials and identification stickers corresponded. Accordingly, I verified the paper work.” [Exhibit J1]
[53] As will be seen from the Hospira argument set out below, the Respondent takes many points of objection to Mr Jeffreys’ evidence and to his conduct.
The Post 28 October Review
[54] On 10 November 2009 Mr Jeffreys and Mr Mercer were spoken to by Mr Eckhardt, (in the presence of Ms Black), who advised that there had been a problem with the Irinotecan mixed on 28 October. In the account of Mr Mercer, when he was shown the Dispensing List he understood immediately the dispensing mistake that he (Mr Mercer) had made, in that the total amount of Lactic acid required had not been included in the mix, but that Mr Jeffreys had had to have the ‘problem’ explained to him (Exhibit H3, paragraph 28).
[55] It is convenient for the narrative to take up the account of the Company whereby:
• the Applicant was advised on 10 November 2009 of the seriousness of the matter and that the Company was further considering the events;
• at a meeting on 12 November of Hospira management and supervisory staff involved in the inquiry including Mr Eckhardt, it was determined that all employees involved, Messrs Jeffreys, Mercer, Eckhardt, Maxfield and Flynn, would receive at least a written warning;
• that, because Mr Jeffreys had received written warnings in 2002, in 2005 and 2009 for failing to meet GMP standards and other policies, and had also been counselled verbally since a 2008 round of redundancies, on 12 November 2009 he was stood down with pay until the finalisation of the Company’s investigation;
• that a further meeting was held with Mr Jeffreys and Mr Davies, the NUW shop steward, on 17 November 2009 when Mr Jeffreys was given a further opportunity to outline the events of 28 October in response to the Company putting to Mr Jeffreys that he had, by his method of verifying Mr Mercer’s preparation of the batch, and particularly by not being present in the mixing room when the materials were weighed or decanted, been guilty of ‘falsifying’ the documents by verifying Mr Mercer’s paperwork; and
• that on 18 November 2009 the decision to terminate Mr Jeffreys’ employment was taken, relying upon – the seriousness of the GMP breach, Mr Jeffreys’ work record, Mr Jeffreys’ “lack of remorse and unwillingness to accept responsibility for his actions” (Written Outline of Submissions, paragraph 23(c)), and the loss of faith, said to result, in Mr Jeffreys’ ability to carry out his duties carefully and without a repeat incident.
The Case for Jeffreys
[56] Mr Jeffreys’ case relied heavily on his claim to have not received any official training for the mixing role. Mr Jeffreys had been expected to learn the mixing role by being teamed with an experienced mixer, Mr Chahal, on afternoon shift. This ‘buddy’ system was the subject of criticism from the Applicant as being no substitute for a ‘proper’ training programme.
[57] In summary form Mr Jeffreys relied upon:
• the pressure put on him to sign various in-house training forms accepting that he was fully trained and competent in mixing;
• the evidence showing that, contrary to the Company’s assertion that two operators were required by policy to weigh raw materials together “in real-time”, it was a standard practice for one Hospira operator to weigh raw materials alone and for another operator to later verify the first operator’s work, by checking the paperwork including the scale receipts, as the last preparatory step prior to actual mixing commencing;
• the practice just described meaning that it could not be said that Mr Jeffreys had ‘falsified’ documents;
• the argument that, while Mr Mercer’s error had remained undiscovered, Mr Jeffreys had also made an honest mistake, given that by accepting his Team Leader’s amendment to the Dispensing List (by Mr Mercer having written “N/A” and initialling the ‘second bottle’ part of the document) he had been also incorrect, but had certainly not neglected his duties;
• his inexperience in not having discovered Mr Mercer’s mistake, particularly when his ‘training’, occasioned by the Company sanctioned but ineffective, ‘buddy’ system, was based on him watching and following long-time mixers such as Mr Mercer but with him not yet fully au fait with the totality of the mixers’ duties.
The Termination as Unreasonable
[58] Again in summary form, Mr Jeffreys’ case relied upon a number of arguments intended to reveal that the Company’s decision was unreasonable. These included that at the time of terminating Mr Jeffreys’ employment the Company was aware of a range of factors which had combined in the production of the faulty batch. These were the Dispensary’s failure to provide the correct raw materials ie. two bottles; the failure of Mr Mercer to detect the Dispensary’s mistake; Mr Mercer’s act of amending the Dispensing List, Mr Jeffreys’ verification of Mr Mercer’s amendment to the Dispensing List; and the failure also of coordinators and batch auditors alike to ‘pick up’ the mistake in the paperwork (Applicant’s written outline, 15/2/10, paragraph 34(a) to (f)).
[59] Under the ‘unreasonable’ rubric it was also put that with the above considerations in mind one should conclude that the Applicant’s role in the flawed production was minor and that, as the least experienced, yet only dismissed employee, his treatment should be found to be unreasonable.
The Termination as Harsh
[60] It was put for Mr Jeffreys that the decision to terminate was harsh because it was disproportionate to any mistake made by him. The consequences for the Applicant were also stressed, with attention being given to Mr Jeffreys’ age (50), that he had found it difficult to obtain equivalent employment after the termination, despite taking up a training course, being prepared to embark on a new area of work and that it had taken until 29 March 2010 for Mr Jeffreys to take up employment on a fixed term contract (with the possibility only of extension) but at a very significantly reduced rate of pay.
Section 387
[61] Ms Allison addressed the provision of s.387 which Fair Work Australia must consider. Section 387 is in the following terms:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employers enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
Section 387(a)
[62] As to s.387(a) it was said that for the reasons summarised earlier, the basis for Mr Jeffreys’ termination were not “sound, defensible or well founded” when regard is had for the entire relevant factual matrix, including the Hospira inter-departmental factors, that is the unexplained Dispensary failure as to the bottles and the failure of the Dispensary employees or Dispensary computer responsible at source for the mistake, the standard practice as to weighing raw materials prior to a mix, Mr Jeffreys’ lack of experience, his insufficient training and that he had, some time prior to the incident, brought his own view of his lack of mixing competence to official notice.
Section 387(b) and (c)
[63] As to s.387(b) and (c), the notification of reasons and opportunity to respond, it was submitted that there was not in this case adequate notification of the reasons for termination or the affording of a legitimate opportunity to respond. In this respect it was submitted that:
“
• At the meeting of 12 November 2009 the Company notified the Applicant that his involvement in the production of a faulty batch (sic) being investigated and his employment was to be suspended.
• On 17 November 2009 the Company asked the Applicant a number of questions regarding the production of the faulty batch. In particular the Company asked the Applicant questions relating to the ‘falsification of documents’, and his role in verifying documentation when he had not witnessed the raw material being weighed.
• On 18 November 2009 Amy Richards, Human Resources told Tony Davies, NUW delegate, that the Applicant’s past performance was the issue. When Mr Davies said this matter had not been raised in the meeting on 17 November 2009, Ms Richards said that the Applicant had already had his chance to respond.
• On 18 November 2009 the Applicant was terminated for grounds including past performance issues.” (Written submissions, 15/2/10, paragraph 45).
Section 387(d)
[64] It is conceded that the Applicant was permitted representation at the meetings of 18 and 19 November 2009.
Section 387(e)
[65] In relation to Mr Jeffreys having been warned of unsatisfactory performance, Mr Jeffreys acknowledged having received three warnings over the course of his employment since 2000. It was said of these warnings:
• that none related directly to the reason the Applicant was terminated;
• that the first, in 2001, related to an allegation of a tank not being properly cleaned;
• that the second, in 2006, involved the Applicant and a number of fellow employees not wearing a particular sort of helmet (which style was soon replaced) in a specified area;
• and the third, that in June 2009 Mr Jeffreys was warned over the blow drying of a filter.
Section 387(f) and (g)
[66] As to these subsections it was noted that Hospira is a large company having over 200 employees and benefits from dedicated Human Resource employees.
Section 387(h)
[67] Mr Jeffreys relied on the elements of his case summarised at paragraphs 30-38 of the written submissions of 15 February 2010 and, in a shorthand form that:
• he was not guilty of the misconduct upon which Hospira acted, or that he had falsified documents, as it was standard practice to weigh alone;
• he had carried out the task of verification in error but not in a way reflecting neglect of duty;
• with limited experience and training it was unfair to expect that he could detect the first operator’s error.
in support of the non-specified s.387 matters.
Remedy
[68] It was put as to s.392(2) matters that the maximum should be awarded because:
• the Applicant had significant service, on the Applicant’s count over ten years;
• the Applicant had made significant efforts to mitigate, including taking an ambulance driving course prior to taking up fixed-term employment; and
• the Applicant is 50 years old and unlikely to find such remunerative employment including regular overtime.
It was noted that Hospira was a large company with dedicated human resource advisors.
The Case for Hospira
[69] A comprehensive case was put by Hospira seeking to rebut the major elements of Mr Jeffreys’ position and relying fundamentally on Mr Jeffreys having failed to follow the Respondent’s published procedures and policy – its code for Good Manufacturing Practice (GMP), the SOPs and OIs.
[70] In setting out the Respondent’s positions both as to the narrative of events already summarised and in response to the case put for Mr Jeffreys, I do not propose to recite all the detail explored.
[71] Hospira relied upon the following limbs of its argument, that:
• the policies set out above are basic to employment with Hospira and explicitly provided for in Mr Jeffreys’ Position Description (Exhibit H2, tab 6, page 1) requiring, with associated obligations, for Mr Jeffreys to “Complete and verify accurately and in full production documentation in accordance with relevant SOP’s (sic) and OI’s (sic)”. The Position Description signed by Mr Jeffreys on 18 December 2008 also provided at page 3, as a Personal Competence/attribute an “Ability to maintain attention to detail in relation to quality of product and processes and completion of documentation”.
• the need for each employee to comply was, or should have been, well understood by employees through training;
• work which fell to be performed by Mr Jeffreys on the day in question was work able to be allocated to Mr Jeffreys;
• although Mr Jeffreys had been involved in mixing and formulating batches for years, including with Mr Eckhardt and with Mr Mercer, Mr Eckhardt, as afternoon shift coordinator, had asked Mr Jeffreys in 2008 to learn the mixer role; and
• Mr Jeffreys’ skills in mixing were developed in 2008 and 2009 by a combination of on-the-job training with experienced mixers, through reading and by familiarity with the SOPs and OIs as they dealt with batch formulation, all of which are said to be reflected in Mr Jeffreys’ “extensive training and qualification documents”. (Written submission, 5 March 2010, paragraph 12).
These documents were tendered as Exhibit H2, documents 16 and 17.
Hospira on the Events of 28 October 2009
[72] Detailed submissions were put by Hospira as to the events of 28 October 2009 which reflect its perspective of the factual account already recorded. Three vital areas of difference are to be found in Hospira’s rendition which were said to properly characterise Mr Jeffreys’ “misconduct/unacceptable performance” (Mr Dalton, TPN 3105).
Real-Time
[73] The first is that Mr Jeffreys was required to be with Mr Mercer ‘in real-time’ when Mr Mercer weighed the Lactic acid and that to have not been present was serious misconduct because it was a serious breach of GMP standards. The second was that Mr Jeffreys’ ‘verification’ of Mr Mercer’s completion of the batch documentation was required to be an independent check by Mr Jeffreys to ensure, amongst other things, that Mr Mercer’s preparation of constituents accorded with the amounts set out in the Dispensing List – particularly because Mr Jeffreys had acknowledged “he had identified a discrepancy on that document … yet he did not think to question Mr Mercer or anybody else about that discrepancy which he says he noticed that afternoon” (Mr Dalton TPN 3106). The third was that by signing the Dispensing List Mr Jeffreys is saying to shift coordinators and others that he had verified the first operator’s weighing of the Lactic acid. This point was pressed, not only to highlight a real affect of Mr Jeffreys’ actions, but to buttress the Hospira charge of “falsifying documents”, of which more will be heard below.
[74] The key aspect associated with the latter point was Hospira’s argument that, as verifier, Mr Jeffreys is saying to the Coordinators and others down the manufacturing food-chain that he has checked Mr Mercer’s work; that it may be relied upon. The submission was put that the scrutinising task of the subsequent Shift Coordinators (Messrs Maxfield and Flynn) and Mr Eckhardt, who followed Mr Jeffreys, was “entirely different”, (Mr Dalton, TPN 3286). This was said to be so in that while there was a careless failure to pick up the “N/A, 80.12g versus 117g” inconsistency, it was not, as was Mr Jeffreys’ a failure to follow procedure.
[75] It was put in response, as explaining their different and lighter punishment, to the disparity of treatment argument, that the checking of batches of paperwork by those who followed was “inherently limited as to the rigour of that check…” (Mr Dalton, TPN 3269) as such officers are entitled to accept that operators have done what their signatures suggest that they have done. Because Messrs Maxfield and Flynn had no history of poor performance or warnings and Mr Eckhardt’s warnings were eight and ten years old there was said to be no substance in the view that their treatment was unjustifiably lenient or rendered Mr Jeffreys’ punishment as too severe.
Hospira’s Submissions as to the Investigation
[76] In setting out further stages of the chronology Hospira sketched the information gathering and investigative meetings of 10 November 2009 during which Mr Jeffreys blamed Mr Mercer for the error and of 12 November when Mr Jeffreys was told he was being stood down with pay pending further investigation.
[77] Mr Eckhardt, with Ms Black present, conducted the 12 November meeting and told Mr Jeffreys that the reason he was being stood down and Mr Mercer was not, “was because of his prior warnings and history of poor performance” (Mr Eckhardt’s statement, Exhibit H1, paragraph 34).
[78] The further investigation period was presumably concluded on 17 November 2009 when Mr Jeffreys attended a meeting with Mr Eckhardt, Ms Black, Ms Richards of Hospira’s HR and with Mr Davies attending as the Applicant’s representative. Mr Eckhardt gave the reason for this final meeting as being:
• to ask further questions of the GMP breach;
• to ascertain Mr Jeffreys’ understanding of the procedures; and
• to “give him an opportunity to clarify any issues or provide any information he thought was relevant” (Exhibit H1, paragraph 35).
[79] Mr Eckhardt, perhaps in summary of the Company’s position at that stage, said in his statement (Exhibit H1, paragraph 35) “I wanted to find out whether Mr Jeffreys’ (sic) understood the significance of his actions and was willing to accept responsibility”. The meeting was a structured one and the Hospira officers had prepared a list of questions which, together with some snatched notes of answers, was tendered as Document 14 of Exhibit H2.
The Termination
[80] The Company’s written submissions describe its consideration of the failure of Mr Jeffreys to explain his conduct or to acknowledge responsibility for his actions or that he was at fault.
[81] The decision to terminate was made on 18 November and was reached on the basis of:
• the seriousness of the GMP breach and its impact;
• Mr Jeffreys’ history of non-compliance with GMP standards, policies and procedures; and
• Mr Jeffreys’ lack of remorse and unwillingness to accept responsibility; and
• the Hospira officials’ loss of faith in the Applicant’s ability to undertake his duties “with the level of due care and diligence and without a repeat incident” (Written submissions, paragraph 23).
[82] It was put that there was a valid reason for the dismissal which was based on the Applicant’s misconduct, but that Mr Jeffreys’ conduct could also be characterised as performance related, thereby involving two statutory grounds.
Hospira on Valid Reason
[83] As to valid reason, well worn but necessary ground was traversed, in that the breach of such an important term of the employment was such as to constitute a valid reason. A great deal of detailed attention was given over to establishing that Mr Jeffreys had breached the Company’s policy as to verification generally and second operator real-time verification in the stages preliminary to the actual mixing of ingredients.
[84] The Applicant’s failure to follow his contract of employment was described in the following detailed way:
• Mr Jeffreys breached an operating procedure that required him to verify in real-time Mr Mercer’s weighing of the liquid ingredient ie. 117g of Lactic acid;
• Mr Jeffreys was derelict in checking the Dispensing List as, on his own evidence, he had identified a discrepancy on the List “indicating that only one lot of Lactic acid had been dispensed, yet he did not think to question Mr Mercer or anybody else…” (Mr Dalton, TPN 3106); and
• Mr Jeffreys had, by signing the Dispensing List and the Batch Record Form 200 (Exhibit H5), misrepresented to those that followed that he had verified Mr Mercer’s weighing of the Lactic acid in real-time when he had not done so (Mr Dalton, TPN 3106).
[85] Such failings were said in cases cited to have been found to constitute a valid reason for termination. The Company’s procedures themselves were said to be reasonable, particularly given their purpose in maintaining the standards of Hospira’s important products and in protecting the high value of the Company’s interests – bearing in mind that the ruined batch of Irinotecan represented a lost value of $800,000 to the respondent.
[86] Contrary to the Applicant’s case, the Company submitted that it was clear from Mr Jeffreys’ own evidence, and that of the Company’s witnesses, that the obligation was to verify the accuracy of the first operator’s work in real-time. Instead of having done this Hospira put that Mr Jeffreys’ evidence established:
• he had not verified the work of Mr Mercer in real-time;
• he had not queried the noticeable discrepancy relative to the ‘NA’;
• he did not weigh the Lactic acid himself – which was put by the Company as a step available to Mr Jeffreys given that the operators had been physically separated in performing part of their duties; and
• rather than look at the Lactic acid he had looked only at the paperwork.
[87] Hospira also relied upon Mr Jeffreys’ acknowledgment in cross-examination that the fact of the broken scales in Mixing Room 4 did not provide a reason excusing the Applicant from the need to verify the correctness of Mr Mercer’s work (TPN 332). The fact that some five days prior to 28 October 2009 Mr Jeffreys had attended a ‘good documentation practices’ course, whereby he was reminded of the need to conform to the standard practices was given a sound emphasis.
[88] It was put that regard had been properly had by the Respondent’s management at the time, and should be had by Fair Work Australia now, to the previous warnings and counsellings of Mr Jeffreys relating to applying instructions and due care and diligence. It was put that Mr Jeffreys had been told that his performance had to improve for him to have a future at Hospira (TPN 593-4).
[89] Strong emphasis was placed upon Mr Jeffreys’ failure to accept responsibility for his actions or to show remorse for the impact of his breach as having led to a significant breakdown of the relationship, which also went in significant part to constitute and justify the basis for the termination. The significant opprobrium attaching to Mr Jeffreys for his alleged failure to accept responsibility was not only pressed at arbitration but also, it is apparent from all the materials, was a factor of influence pressed by Hospira management upon the ultimate decision maker, Mr Hodder.
[90] As to proportionality it was submitted by Hospira that the decision to terminate was clearly open to it, not plainly wrong and not to be lightly substituted by another view. It was put that Mr Jeffreys’ failure to show insight into the implications of his actions led to a justifiable conclusion that he could not be trusted as a production operator (TPN 3326).
[91] In the alternative, it was put as to remedy that, but for the questioned termination, the employment would have continued for a short time only and, for the same reason, that projected earnings should be heavily discounted were an amount to be awarded.
In Reply for Jeffreys
[92] It was stressed for Mr Jeffreys that at stages in the giving of his evidence he became a little confused, so that his responses to questions were required to be carefully considered and read as a whole. As to verification in real-time Ms Allison argued that for Mr Jeffreys “… verification of the liquid, was visual verification on the papers” (TPN 3410), that this was normative.
[93] More generally, Ms Allison argued that the policy requirement for two operators to be present when dispensing or weighing liquid was, at best, ambiguous and nowhere to be found stated clearly.
[94] As to the error in checking it was put that there were mitigating circumstances relating to Mr Jeffreys’ experience, training and that the Team Leader was involved in the operational practice that led to the separation of the two men on the day in question. The disparity in treatment is then said to have been continued in the differential punishment meted out to Messrs Eckhardt, Maxfield and Flynn.
Consideration
The Obligation to Comply with Policy
[95] There is a great deal of conflicting evidence in this case about the meaning and application of the Hospira policies and procedures by which its manufacture of pharmaceuticals is sought to be regulated. At the same time there can be no doubt as to the obligation resting on all Hospira employees to strictly comply with these edicts. Given the nature of this work it would be likely, in my view, for compliance with Hospira’s quality and manufacturing procedures to be considered a natural term of their contract of employment and every employee’s obligation to advance and safeguard the employer’s interests. It is also true that strict policy compliance is a specific feature in Mr Jeffreys’ position description (Exhibit H2, document 6). Several examples from Mr Jeffreys’ Position Description serve to make the point.
[96] The Position Summary, signed by Mr Jeffreys, provides:
“The role will involve producing product to specified quality standards while maintaining required production schedules and operational efficiencies. The role will include accurate completion of documentation and working collaboratively…”.
[97] As a ‘Key Result area/accountability’ the description reads, as to Quality, “Undertake production processes in accordance with GMP standards and Hospira Australia policies and procedures”. Under that heading more specific requirements are given as, “Identify non conformance of product”, and “Complete and verify accurately and in full production documentation in accordance with relevant SOP’s (sic) and OI’s (sic)”. The final ‘Key selection’ criterion is “A high degree of attention to detail, particularly in relation to the completion of documentation”.
Applying the Policies in Real Life
[98] Although it is not my intention to make a series of declarations as to what Hospira’s SOPs mean, or as to how they should apply for an employee to be sanction free, it is necessary to acknowledge the controversy surrounding Mr Jeffreys’ principal policy breach as second operator – verification of the detailed work of his first operator, Mr Mercer. Mr Jeffreys’ approach to the verification generally, and on the night in question, requires an appreciation of the policies’ application and of the errors of the Dispensary, of Mr Mercer and of the Applicant. Regrettably for Mr Mercer, an understanding of the nuances abroad in this case also requires a close understanding of Mr Mercer’s actions in addition to, and as they affected those of, Mr Jeffreys.
[99] As set out above the Company relies as providing the valid reason, on Mr Jeffreys’ misconduct, firstly, in having breached the SOP by not verifying the dispensed Lactic acid in real-time by being present when it was dispensed, or it was submitted by Mr Dalton, by weighing it himself. Secondly, Mr Jeffreys’ performance was unacceptable by virtue of his failure to independently review the work of Mr Mercer given that Mr Jeffreys had noted the irregularity of the ‘NA’ annotation on the Dispensing List and, rather, that he accepted Mr Mercer’s seniority and actions as to the Lactic acid, as ‘presumably’ correct. Finally, Hospira relied upon Mr Jeffreys’ felony, closely allied to the second failure, that by him ‘signing off’ the paperwork, Mr Jeffreys held out to others in the oversight regime at Hospira that he had truly verified the work signed for by Mr Mercer.
[100] The contributory elements raised against Mr Jeffreys were essentially that:
• he had already been warned three times in the previous decade for failing to follow procedures;
• at the time of the August 2008 redundancies he had been told his performance was unsatisfactory and that he must ‘lift his game’;
• since then he had also been spoken to by Ms Black over his performance; and
• attitudinally, during the pre-dismissal discussions he had refused to accept the Company description of the SOP requirement, had shifted blame to Mr Mercer, been other than contrite and had failed to accept responsibility for the consequences of actions including his own.
[101] In reaching a concluded view on these issues it will be necessary of course to apply the operational policies of Hospira, both as they can be understood to exist and as they are actually applied in the workplace by Hospira’s supervisors, to those of Mr Jeffreys’ actions the subject of complaint.
[102] Also in captive orbit in the review of events called for by this case is Mr Eckhardt, in his multitude of roles; as co-mistake maker as to the same transaction on the evening in question; as preliminary investigator, as fellow sanction recipient who understood that his job too was in the balance (with Messrs Jeffreys, Mercer, Maxfield and Flynn), and as evaluator, whose opinion (with that of Ms Black) as to ‘trust’ was to exert strong influence over the final decision. Despite a submission to the contrary I am unable to accept that Mr Eckhardt played other than a pivotal role. While Mr Hodder was clearly the final decision-maker, he did so by accepting the conclusion reached by his supervisorial team. Not a great deal turns on this except to note that Mr Eckhardt wanted to sack Mr Jeffreys, gave his reasons (they are plainly set out in his statement) and can been seen as influential, in my view, at each juncture in securing this end.
The Team Leader Under Pressure
[103] An appreciation of Mr Jeffreys’ role in the flawed Irinotecan production of 28 October 2009 requires an understanding and appreciation of the difficulties faced and pressures placed on Mr Mercer on that afternoon. This is because Mr Mercer had to take active steps to get the batch of Irinotecan mixed.
[104] At the outset I would record that I found Mr Mercer to be a straightforward, reliable witness whose evidence reflects an employee placed in a very difficult position on that evening, in circumstances which go some way to explain, if not excuse, the error which he so openly acknowledges and regrets. It is also the case that, in the ultimate, Mr Mercer came to disapprove of Mr Jeffreys’ approach to his, Mr Jeffreys’ work. (See Exhibit H3, paragraphs 26, 27 and 35). With a reservation as to the application of Hospira’s policy, dealt with below, I have accepted Mr Mercer’s evidence.
[105] Owing to staffing and production pressures, Mr Mercer, as afternoon shift Team Leader had to forsake his normal supervisory role as the shift was working with fewer staff than called for by the roster. Mr Mercer’s evidence describes a pressure filled period as he performed the mixing role as first operator with Mr Jeffreys. It may be recalled that Mr Mercer after 18 years service, including a period as a Supervisor of night shift from which he had bid down to afternoon shift, had accepted the lower classified Team Leader position. Mr Mercer’s evidence was that the production schedule called for two batches to be completed on the 28 October afternoon shift. As there was to be no night shift coming on, his choice of words reflects the pressure-cooker reality for him that night, “… there was an emergency to get that batch mixed because otherwise it wouldn’t have got done” (Mr Mercer, TPN 1676).
[106] It is also of interest to note the guarded fashion in which Mr Mercer described his mixing skills relevant to the evening in question. Mr Mercer’s statement sets out the fact that he, as mixing Team Leader, was “qualified in mixing and … been involved in the mixing process ‘on and off’ for approximately 15 years so I have a good theoretical understanding of the process. However, at that time, I had not recently done a great deal of mixing on a regular and consistent basis” (Mr Mercer’s statement, Exhibit H3, paragraph 8).
[107] Notwithstanding this suggestion of unfamiliarity or lack of currency, it was Mr Mercer’s evidence that he was from time to time required to work with Mr Jeffreys in cleaning equipment and facilities and, less frequently, in mixing (Exhibit H3, paragraph 1).
Team Leader to Second Operator
[108] It was in this emergent situation that Mr Mercer had, importantly, said to Mr Jeffreys, “I’ll go and do this. You verify later, and that way we can get the mix going after dinner and finish it. And that’s why I did what I did.” (TPN 1987). It is my view that Mr Jeffreys’ breach of the SOPs (and other policies) – by not being with Mr Mercer when the Lactic acid was decanted – can only be understood in this light. That is, that his shift Team Leader and first operator, previously a Hospira salaried shift Coordinator had told him to ‘go thither and verify later’.
[109] I have not concluded that Mr Mercer put this position as to how the work was to be conducted in a particularly didactic fashion or tone – he simply advised Mr Jeffreys what was going to happen, how the work was to be performed. His approach to the organisation of the Irinotecan’s preparation passed unremarked. Mr Mercer, not Mr Jeffreys, arranged the work in a fashion which meant that the Formulating Batches SOP ‘Note’, which provided that, “All weighing and addition of raw materials must be visually verified and signed by two operators in real-time” was necessarily breached (Exhibit H2, Document 1, page 7). It was on this basis that Mr Jeffreys went and worked alone in preparing Mixing Room 6 for the mix. This does not deal with the aspect of Hospira’s case, which dealt with the Rooms 4 and 6 dichotomy. It was said that it remained Mr Jeffreys’ responsibility to check the quantity of Lactic acid when they were reunited, even though Mr Jeffreys had not actually seen it poured.
[110] Of course it is fundamental to the Hospira case that the SOP for Formulating Batches applying on 28 September 2009 (Exhibit H2, Tab 1) requires that all weighing and addition of raw materials must be visually verified and signed by two operators in real time. Mr Mercer’s evidence was that he knew of this policy, saying, “When you’re dispensing any liquid or any powder it’s required to have two operators” (TPN 1702). Mr Mercer said that this policy was “pretty much drummed into you but I’m sure it says it somewhere or other” (TPN 1704).
[111] Notwithstanding the ‘two person policy’ of which he says he was aware Mr Mercer remained conscientiously concerned on the night that there needed to be sound verification. Ms Allison asked in cross-examination:
“So Mr Mercer, is your evidence that despite the fact that you were well and truly aware of a requirement for two operators to be in the room when you were weighing the lactic acid, you just blatantly ignored that requirement? … Yes I did, but I was going to back it up with a printout. That was my thinking.” (TPN 1849)
[112] Showing a second operator such a slip from a scale after weighing, as satisfying the requirements for dispensing liquid was also clearly at odds with the theoretical practice sought to be applied by Hospira’s operating procedures. Mr Mercer gave detailed evidence as to the SOP which he normally applied, that is, that the two operators would be in the mixing room with the powders previously checked and re-weighed and then the liquids decanted in a process best illustrated by the following paragraphs, when Mr Mercer describes the operation:
At TPN 1840 “… Well, generally when you-re weighing liquids you generally – it’s part of the mix and it’s always done with two people, to my knowledge.”
At TPN 1975-79 “The Commissioner: So you’re decanting or mixing – not mixing, but doing something with the liquids. You’re weighing them? … Yes.
And I’m the second person in the room with you and I take it – what happens? Do you call me over and say, “Michael, have a look at this? … Yes.
And what is it I’d be having a look at? I’d be looking at the scale? … The weight on the – the actual digital display on the scales.
As opposed to you showing me a slip? … Yes.” (See also TPN 1756)
[113] As will be seen below, this is what happened. Mr Mercer did ‘back up’ the weighed Lactic acid with a printout. The value of setting out this evidence is that it establishes what went wrong on 28 October in the more limited sense that Mr Jeffreys did as he was told, that is, preparing Mixing Room 4 for the mix with Mr Mercer having departed to Mixing Room 6. When Mr Mercer returned with the Irinotecan materials prepared, including the Lactic acid with its appropriate weighing slip, Mr Jeffreys ‘verified’ the documentation as he understood was orthodox, that is, by looking at the Dispensing List, not at the bottle (TPN 538). In answer to my question (at TPN 538) “Did you look at the acid or did you look solely at the pieces of paper?” Mr Jeffreys replied, “I looked at the dispensing list, I didn’t look specifically at the bottle”.
[114] Mr Davies’ evidence, as a well experienced mixer (although in recent times having done less mixing), was that it was the practice in 99% of cases to verify by looking at the hard copy printout from scales (TPN 1008 and 1026).
Two Operators in Real-Time
[115] The SOP relied upon by Hospira was that referred to earlier for Formulating Batches (Exhibit H2, document 1) namely, “All weighing and addition of raw materials must be visually verified and signed by two operators in real time” (Exhibit H3, document 1). Allied to this was the requirement for “All liquids (sic) raw materials used for formulation must be dispensed in Mixing Room…” (Exhibit H3, document 1). By virtue of the scales problem Mr Mercer, in decamping to Mixing Room 6, breached this rule, as he dispensed raw materials other than in the Mixing Room which was to be used for the Irinotecan mix.
[116] In the face of Messrs Jeffreys and Davies’ evidence that they had not heard (prior that is to reading the respondent’s witness statements) of a need that two operators visually verify the dispensing of liquid in real-time, Hospira’s witnesses Mr Eckhardt (TPN 1247) Mr Mercer (TPN 1702) Mr Caddaye (TPN 747-49) and Ms Black (at Exhibit H7, paragraph 8(b)) relied, insofar as liquids were concerned, upon the SOP set out above. This was in spite of the SOP’s reference to raw materials generally and the SOP not differentiating between liquids and powders.
[117] Some reliance was placed upon the fact that the non liquid ingredients had already been weighed and logged by the Dispensary staff and having been verified there, and with scale receipts provided (the stickers) there had already been sufficient to satisfy the SOPs and GMP. It is clear enough that one mixing operator, acting alone, performs gross re-weighs of the materials sent from the Dispensary, that is, they weigh the bags containing other bags of powders. At some stage the individual bags of ingredients come out of the delivery bags and are checked, ready for the mix. My understanding is that these functions are performed by one mixer without their work, to the extent it involves re-weighing powders, being verified by another operator in real-time or otherwise. How this could be said to comply with the SOP Formulating Batches (SOP 430200 Issue 26 of 28 September 2009, Exhibit H2, document 1) which particularly binds mixing operators and the mixing process was not explained.
[118] Hospira argue that Fair Work Australia can conclude that Mr Jeffreys is guilty of misconduct because, in part, he breached the Formulating Batches SOP by ‘verifying’ the Lactic acid without seeing it poured and noting the weight or, as Mr Dalton put, by weighing it himself. Against this is strong evidence from Mr Davies, who although often engaged on different duties as Senior Mixer on day shift, averred:
• that he is predominantly a mixer;
• that he has spent 8-10 years mixing full time;
• that on 99% of occasions the ‘second’ operator verifies by looking at the hard copy printout from the scales; and
• that he currently relieves on afternoon or night shifts mixing when necessary.
[119] Mr Davies’ statement gives a clear outline that his work preparing ingredients for batches (termed Formulating Batches) has long been performed by him alone, with the full knowledge and acquiescence of Mr Caddaye, as day shift manager, that a second operator would come on shift later for the actual mix. In such case the second operator would verify by reference to the dispensing lists and printed weight receipts which are placed on the various stickers, which, as the process progresses, are taken from the raw material bags and placed on the Dispensing List. Mr Davies’ evidence went also to his awareness that, prior to Mr Jeffreys’ termination, other mixing operators performed the batch preparation functions without a second operator present (Exhibit J2, Mr Davies’ statement, paragraph 7).
[120] It will be readily appreciated that Mr Davies’ depiction of the Hospira operation is entirely at odds with the SOP two person/real-time visual batch preparation practice which Mr Jeffreys is charged with breaching. Mr Davies’ evidence was that this had changed post-Jeffreys, as is clear from the following portion of Mr Davies’ cross-examination, until cut short by Mr Dalton.
“And the evidence you’ve given in relation to the ANP area that we’re concerned with here is your coming in early to prepare – to carry out preparatory work, which is everything up to but not including the actual mixing of the batch. Is that fair?...I would wait till another operator came in and then I would mix. Since this situation arose, now they have two operators coming in; we come in at 5 o’clock; two of us will come at 5 o’clock and mix …
We’re not dealing with that; we’re concerned with the period up to the dismissal of Mr Jeffreys.” (TPN 1120-21)
[121] If Mr Davies’ evidence is accepted not only have Hospira not applied their own policy rigorously but have benefited from the efficiencies in lean operating practices its ‘flexible’ application permits.
The SOP Reviewed
[122] What appears to be a direct conflict in the evidence as to the way in which work is performed at Hospira and the requirement of the SOPs, is, in my view, capable of understanding if not total reconciliation. The much quoted SOP for Formulating Batches (Exhibit H2, document 1) provides a comprehensive prescription for the activities of Hospira employees in pharmaceutical preparation. It does so by five Sections detailing how to clean and prepare facilities, how to received the materials from the Dispensary, how to ready the ingredients including liquids and the Water for Injection (WFI), how to mix, how to weigh, how to transfer the mixed ingredients to a special “filling room”, how to perform post-functions cleaning and in the process of accomplishing all these things, how to do so in a permitted, verifiable way (of great commercial significance) which can accommodate rectification should there have been a slight deviation and be seen, in totality, to yet conform with many detailed stipulations not here recited.
[123] Section 3, “Formulating the bulk mix” incorporates a great many of the steps and activities within the above continuum. Key elements of preparation of ingredients are seen by the Applicant and Mr Davies as distinguishable from mixing. Not a single witness says that all “weighing and addition of raw materials” are “visually verified and signed by two operators in real-time” as required by the first of the instructional “Notes” at the beginning of Section 3 of the relevant SOP. It is an unreliable absolute rule if it is never applied absolutely.
[124] Rather than the weighing and additions of raw materials being verified and signed for by two operators in real-time as required by Note 1, it is clear from the Company witnesses that this requirement applies only to liquid ingredients. If one must conclude that the principal rule relied upon to show a breach of the SOPs is applied only in part, and contested by Messrs Jeffreys and Davies’ evidence and Mr Mercer’s actions, it will be necessary to proceed with considerable caution in applying the rule strictly because it is not strictly applied.
[125] Nowhere does the SOP specify that liquids must be dispensed so that two operators participate to enable a real-time verification by the second operator. Of course liquids are, in logic, caught by the SOP providing for all raw materials to be so handled in formulating and we know that is not what Hospira’s own witnesses describe as the current, conforming procedure.
[126] Where the real grey area appears, on the evidence before me, to exist is as the batch formulation moves towards stage 10. On the evidence of Mr Jeffreys, and particularly relying upon that of Mr Davies, these late bulk mix formulation steps are seen as preliminary steps to the actual mixing. The depiction was that the first operator ‘gets everything ready’, including the weighing scale receipts, and as these are checked or verified by the second operator they are then added to the actual mix. This was described by Mr Davies in this way: “When one operator is weighing out the raw materials, the second operator isn’t standing there looking over their shoulder. The second operator is preparing the tank or calibrating the pH meter, doing another duty. There’s the printout, check the printout, check the item number and NP numbers, check everything’s right, and then you sign off on it” (TPN 1023). And further, in reference to the broken or inadequate scales causing operators to work separately: “One person goes to one room one person goes to the other, you meet up. Then when you’re mixing, you show the evidence, sign off on it, verifying it” (TPN 1050).
[127] As Mr Davies would have it, it was not necessary for two operators to be in the room during the preparation of materials phase because the mixing stage had not commenced – even though the preparatory steps had been completed up to and including the dispensing of the Lactic acid. By this logic, Mr Davies’ conception was that section 3 of the SOP for Irinotecan was not actually ‘mixing’ (see TPN 1145-49) and as a result both operators were not required to be in the room together. Everybody agreed vociferously that mixing was done with two operators – but this was using a literal definition of mixing.
[128] I am unable to accept Mr Davies’ view, as Stage 10 of Section 3 of the SOP contains that part of the process where the ingredients are finally physically combined, that is, mixed together. In my view it is clear that the final preparing of the ingredients and WFI at Stages 4 to 9 should be considered, on a fair reading of the SOP, to form part of the Mixing function. There is no doubt however in my mind that there is uncertainty as to the application of the SOPs in the light of the considerations just considered and in the context of an operation as busy as that in question on 28 October 2009.
[161] Overall however that Evaluation does not reflect well on Mr Jeffreys – portraying him, in my summary, as a disinterested employee, not inclined to help other workers and prone to become angry with management. It is also true that Ms Black, who was involved in that report, commented under cross-examination that she had then only been at Hospira for several months and was new to Mr Jeffreys and to the job (TPN 2197).
[162] I have noted that the currency of warnings appears to be a relevant consideration for Hospira insofar as the employees other than Mr Jeffreys are concerned but that, for Mr Jeffreys, the 2002 warning is given equal weight to the contemporary warning. Ms Black, also constant in attendance during the meetings, at paragraph 18 of her witness statement (Exhibit H7) says “To the best of my knowledge, none of the other employees involved in the GMP breach had previous recent warnings for failing to comply with GMP standards and had good employment records. For this reason, a written warning was considered appropriate”. (emphasis mine)
[163] In my view, despite the earnest efforts of Ms Allison, the warnings of 2002 and 2009 are relevant, even though it is true the more recent warning did not call into doubt, in the sense of threatening, Mr Jeffreys’ employment. It seems to me however, that this is not a strong point. Can it really be said had the 12 September 2009 warning been more ominous that Mr Jeffreys would have been more careful on 28 October 2009? And if the early warnings of Messrs Mercer and Eckhardt are to be of interest, as they were in Ms Allison’s case, so too is that early warning affecting Mr Jeffreys. In any event, absent some agreement between the parties that a warning of a certain age is to be excised from the record, the warnings are a matter of fact. The weight to be placed on these, naturally, is a matter for judgement.
[164] As to the evidence of verbal counselling or warnings, I have noted Ms Allison’s argument that there is disputed evidence and, in a company where there is a practice of note taking, an absence of written record of verbal counselling.
[165] I have however accepted Ms Black’s evidence generally, so, noting that Ms Black considers Mr Jeffreys to have a real strength in his tasks involving filters (TPN 2199), weight must also be given to her evidence that he was lazy, unreliable, task averse (TPN 2201) had been the subject of verbal counsellings over unclear and incorrect paperwork (TPNs 2185-2190) and had not improved his performance from the time of Mr Caddaye’s enjoining Mr Jeffreys to improve his performance after his narrow escape from the August 2008 redundancy round.
[166] There are several aspects of the termination process relative to warnings that may more conveniently be dealt with here, even if it is likely that, technically, they fall under the head of s.387(h), any other matters considered relevant by Fair Work Australia.
[167] Mr Eckhardt and Ms Black had several interviews with Mr Jeffreys and Mr Mercer. They reported their discussions with the HR Representatives and with Mr Caddaye and Mr Hodder. It is abundantly clear from the evidence before me that very considerable weight was placed at the time of the termination upon the warnings that had been given to Mr Jeffreys relating his failure to apply GMP standards and apply Hospira’s SOPs and OIs. At the time of arbitration these were emphasised and, for example, the 2002 warning of Mr Jeffreys was set out in some detail in Mr Caddaye’s statement (Exhibit H8, paragraph 35).
[168] An appreciation of the evidence of Ms Black, Mr Eckhardt, Mr Caddaye and Mr Hodder reveals the collaborative basis upon which it was determined that all those party to the 28 October 2009 Dispensing List error should receive a written (but not final warning) for failing to adequately scrutinise the Dispensing List. Messrs Eckhardt, Caddaye and Hodder all make clear that having regard for Mr Jeffreys’ previous breaches of GMP standards, a written warning was insufficient punishment for Mr Jeffreys.
[169] Mr Hodder, the most senior manager and ultimate decision-maker, put it in this way speaking of the collective decision of Ms Black, Mr Caddaye and HR that a written warning should go to Mr Mercer, Mr Eckhardt, Mr Flynn and Mr Maxwell at paragraph 25 of his witness statement, “… I am informed that they then discussed whether the written warning was sufficient having regard to the individual circumstances of each of the persons involved. In this regard only Mr Jeffreys had any history of breaching GMP standards … and they thought that it was important that this be taken into account when determining whether further disciplinary action was necessary beyond written warning.” (emphasis mine)
[170] Mr Caddaye expressed similar views in highlighting that, because Mr Jeffreys alone had previous warnings as to GMP breaches, further consideration was given to determine whether a written warning was sufficient for him. Mr Caddaye’s statement goes on to say, “None of the other employees involved in the breach had previous warnings for breaches of GMP standards” (Exhibit H3, Mr Caddaye’s statement, paragraph 34).
[171] Ms Black put it in this way at paragraph 18 of her statement, Exhibit H7, “To the best of my knowledge, none of the other employees involved in the GMP breach had previous recent warnings for failing to comply with GMP standards and had good employment records. For this reason, a written warning was considered appropriate.”.
[172] Mr Eckhardt’s statement (Exhibit H1) was not dissimilar, with paragraph 26 recording that it had been determined on or about 12 November 2009 that at least a written warning should go to all involved, including himself. This penalty was thought “appropriate given that each person involved in the process was accountable for their actions and failed to carry out a thorough check in accordance with standard procedures. It was also the first major GMP breach for all of those involved except Mr Jeffreys”. (emphasis mine)
[173] Despite warnings issued to Mr Eckhardt and Mr Mercer not being the subject of disclosure pursuant to the Directions issued by Fair Work Australia prior to the case coming on, it became apparent that these beliefs, held by the incident reviewers and in turn Mr Hodder, were unsound, as GMP breaches had been the subject in 2002 of a written warning to Mr Mercer and, in 2000 of a written warning to Mr Eckhardt following the loss of a batch as a result of Mr Eckhardt failing to clean correctly (TPN 1554). Mr Eckhardt was also the subject of a file note in 2002 (Exhibit J3) following a WFI ‘overshot’ of 51kg.
[174] I have not accepted Ms Allison’s invitation to draw a negative inference generally as to the non production of these warnings, or that Hospira had an incapacity to find warnings such as to call into doubt their retention of warnings, or that there can be no confidence in the administration of warnings in the absence of a clear Hospira disciplinary policy, or that the warnings to Messrs Mercer, Eckhardt, Flynn and Maxfield were actually produced, that is actually written and delivered only after Mr Jeffreys lodged in Fair Work Australia as a blind or act after the fact, or that the employer had not really enquired into the involved employee’s files at the time of holding Mr Jeffreys’ warnings as the basis for not giving him a further final warning. There is a wholly insufficient basis to doubt the integrity of the Hospira management and I have accepted Mr Dalton’s submissions repudiating these charges.
[175] The existence however of Mr Eckhart’s and Mr Mercer’s warnings does strike at an important aspect of the logic for treating Mr Jeffreys differently as it was put to Mr Hodder, which logic was a vital underpinning of the Hospira decision to not issue him with a final warning. While it remains my view that there existed a valid reason, the substantial erosion of the foundation for treating Mr Jeffreys more strictly inclines one to think the result was harsh. It strikes at the value-system initially relied upon by Hospira. To avoid any doubt, by this I mean that when a key element of the logic in each of the recommendation-makers minds and that of Mr Hodder as decision-maker, that is, that Mr Jeffreys alone of the 28 October mistake making coterie had a previous GMP oriented warning and that therefore he alone was a recidivist and the others well-intentioned error makers to be differently sanctioned, can be shown to be shot-through with invalidity, there is little to commend the distinction drawn by them to Mr Jeffreys’ prejudice.
Section 387(f)
[176] I have considered the degree to which Hospira’s size may have impacted on the relevant procedures and do not believe this subsection to be of any relevance given Hospira’s size.
Section 387(g)
[177] This subsection is not relevant given Hospira’s dedicated human resource management specialists and expertise.
Section 387(h)
[178] There are a number of further matters which I consider relevant under s.387(h). The first is one of shop floor reality. While there is no doubt that like those that followed Mr Mercer and he, Mr Jeffreys made a major error. To the extent that he wears Hospira’s opprobrium, in part for accepting Mr Mercer’s organising the two in separate rooms, it must be remembered that Mr Mercer is the Team Leader and first operator. Mr Jeffreys is not a senior operator. While it is, I hope, already clear that Mr Mercer comes across in my view as a skilful employee and a witness whose evidence, generally, can be accepted and whose error I have no desire to emphasise, it must be acknowledged that as first operator and Team Leader he was directing the traffic as the mixing progressed on 28 October 2009.
[179] If one accepts, as I wish to, that Hospira’s disciplinary sanctions were carefully balanced and had as a key purpose the protection of the SOPs, one must assume the warnings issued to Messrs Mercer, Eckhardt, Flynn and Maxfield were, unlike Ms Allison’s assertions which I have not accepted, carefully considered and drafted, not necessarily with a literary frame of reference, but certainly with some deliberation.
[180] There are several disquieting elements as to the Hospira investigation and treatment of the evening in question. If the Hospira SOP policy (and those other instructions allied to it) provides strictly for joint operator real-time liquid dispensing prior to the literal mixing phase, and the policy is actually applied, it is very difficult to understand why this breach, that is, the organising of the work by Mr Mercer so as to not apply the SOPs, is not received as the very serious policy aberration it would undoubtedly represent. Instead, at the several stages when the fact that Mr Mercer and Mr Jeffreys were in separate rooms during the dispensing phase of batch preparations is reflected in Mr Mercer’s dealings with Hospira’s inquisitors, there is barely a ripple of interest.
[181] Mr Eckhardt’s statement deals with his discovery of the single operator liquid dispensing breach at paragraph 18 of his statement (Exhibit H1). When Mr Jeffreys tells Mr Eckhardt that it wasn’t his fault (that the Lactic acid dispensing error occurred) because he, Mr Jeffreys, had not been in the room at the time that Mr Mercer weighed the raw materials. Mr Eckhardt’s statement then reads, “I responded to this by stating that he should have been in the room and he still shouldn’t have verified the batch record form unless he was sure of what he was signing”.
[182] It is revealing, in my view, that in Mr Eckhardt’s contemporaneous file note of that conversation, in the passage dealing with this matter, the solo decanting is not even particularised as a fault. The notes relevantly read, “John said he couldn’t be held responsible because he wasn’t in the room at the time and Roger agreed. I said that he still shouldn’t have verified the process unless he was sure of what he was signing. John said that he trusted Roger’s work.” (Exhibit H2, document 13). There is nothing to be read into the word ‘still’. It is telling in my view that Mr Eckhardt’s contemporaneous notes reflect no alarm at the two operators’ temporary solo work.
[183] Nowhere in the Managers and Supervisors’ statements is real concern or indignation expressed at the seriousness and deliberate nature of the ‘two room’ policy breach. This is very curious.
[184] Mr Mercer’s evidence was that if the two operators working on a batch were not together when one was to dispense a liquid “You’d normally go and do it together” (TPN 1991). While I have, as commented upon earlier, otherwise accepted Mr Mercer’s evidence I have had some real difficulty in the explanation he offers for the action he took on 28 October in arranging the work’s performance in a way that mandated such an important breach occur. The difficulty lies in Mr Mercer’s statement that this shift was the first and only occasion when he had breached this rule (Exhibit H3, Mr Mercer’s statement, paragraph 13).
[185] It is not recorded elsewhere in the materials that Mr Mercer had mentioned that this was the only time in 17 ½ years – in response to the staffing pressure and need to get two batches out in the time remaining on the shift – that he had breached the policy and dispensed liquid alone. Mr Mercer’s statement at paragraph 21 supports my concern in this regard, as, when asked approximately one to two weeks later whether he remembered mixing the Irinotecan he had no such recollection of the occasion even though it was, we now know, unique in his career.
[186] It will be recalled that Mr Mercer, previously a supervisor in charge of night shift, and a career employee, averred that the second operator had to log that they had sighted and verified the weighed Lactic acid (TPN 1753). By this was meant that the second operator had “Check(ed) the weight on the scales, visually verify that what the first person has weighed is correct and check the printout for correct weight” (TPN 1756).
[187] This evidence means the second operator must see the scales’ read-out with the Lactic acid beaker on the scales. But this could not happen by virtue of Mr Mercer taking the decanted Lactic acid and the other ingredients from the operative Mixing Room 6 to Mixing Room 4 which Mr Jeffreys had prepared for the mix. Mr Jeffreys could not check the Lactic acid in that room because the scales there were unable to weigh such small amounts as required by the Dispensing List. It followed that the policy was entirely disregarded. Hospira must have been gravely concerned by this approach having been adopted, particularly when one considers it was a Team Leader doing the breaching.
[188] Nowhere in the treatment of this incident, in the investigation or in the warnings, is this aspect taken up by Hospira in any way commensurate with its asserted seriousness. Only once in the case is, what one would consider to be a proper weighting given to the SOP breach of Mr Mercer and Mr Jeffreys, and that is by Mr Dalton in his prosecution. An example of Mr Dalton’s acknowledgement is when, speaking of Mr Mercer, Mr Dalton’s submission is developed in this way:
“So that leaves Mr Mercer. He is the person that can be said to be in a comparable situation because, as I said earlier, he was involved in the failure to comply with the operating procedure. Now, he did two things, he failed to exercise proper care in dispensing and weighing the lactic acid. More significantly, as I said, he was involved with the applicant in the failure to abide by the company’s operating procedure, that required the second operator, Mr Jeffreys, to see him dispense and weigh the lactic acid, and verify that Mr Mercer had done that correctly.”(TPN 3301) (emphasis mine)
[189] Most tellingly of all, Mr Mercer’s written letter of warning (and one notes not a final warning) setting out the seriousness of the Lactic acid breach does not even mention the single operator liquid dispensing breach. If this event truly represents a grievous breach of the SOPs, IOs and GMP and if the policy is truly applied requiring two operators to be present, it is hard to fathom how such an offence is disregarded when Hospira knew of the breach and say they applied their discipline even-handedly. The SOP/GMP breach cannot be critical for Mr Jeffreys and unmentioned for Mr Mercer. Mr Hodder says nothing of these matters.
[190] These are relevant s.387(h) considerations in my evaluation of the potential harshness and injustice which may attach to the decision to terminate.
[191] While I will not set out a detailed treatment of the verbal report given to Mr Hodder, primarily by Mr Eckhardt, Ms Black and to a lesser degree Mr Caddaye, to assist his judgement of Mr Jeffreys’ appropriate penalty it is vitally important to record that Mr Hodder was not told:
• of Mr Mercer’s and Mr Eckhardt’s previous GMP warnings/lost batches or incidents and, rather, as recorded earlier, was told none of the staff involved, other than Mr Jeffreys, had such SOP and GMP warnings;
• that Mr Jeffreys had indicated remorse for what had occurred, and, rather, was told that he had not expressed regret or sorrow; and
• that Mr Jeffreys had described his actions as an “honest mistake”.
[192] Instead the Hospira enquirers told Mr Hodder of the previous warnings, that Mr Jeffreys had sought to pass the blame to Mr Mercer, had shown no remorse or grasp of the seriousness and had not accepted responsibility, all of which had led to a lack of trust and confidence.
[193] I have not considered that Mr Hodder either set out to be harsh or unfair or, that the basis upon which he made his judgement rendered the decision harsh or unfair. I have not however been able to accept Mr Hodder’s construct; that the August 2008 redundancies formed a datum point after which, because Mr Jeffreys only had a new offence, he could then look prior to August 2008. On this basis Mr Jeffreys was unique and the other miscreants’ early warnings irrelevant. All Mr Jeffreys’ warnings informed the views and the logic of the termination recommenders, Mr Eckhardt, Ms Black and Mr Caddaye. There were no datum points.
[194] I have concluded that Mr Eckhardt played a major role in the investigation and evaluation, with Ms Black, of Mr Jeffreys’ responses. There is an unfortunate element of their review of the 28 October incident which I am concerned is likely to have prejudiced what was to follow and informed the report to Mr Hodder.
[195] When Mr Eckhardt and Ms Black met with Mr Hodder on 12 November 2009 it was decided to further consider whether the written warning that Mr Jeffreys, with his four colleagues, was to receive was adequate. Ms Black’s statement notes that with Mr Jeffreys’ warnings in mind it was “decided collectively” to further review Mr Jeffreys’ position (Exhibit H7, paragraph 16, Ms Black’s statement).
[196] Ms Black notes that it was known that Mr Jeffreys was “quite emotional about the investigation” and it was felt best that he be stood down with pay. Mr Eckhardt and Ms Black then met Mr Jeffreys and told him of the stand-down and that they were to further consider his previous warnings. Mr Jeffreys then said words to the effect that he had made a mistake.
[197] Five days later, presumably after further consideration had been given to Mr Jeffreys’ earlier warnings of which Mr Eckhardt and Ms Black were already aware, they met with Mr Jeffreys and Mr Davies in the meeting previously described. Mr Eckhardt took a very dim view of Mr Jeffreys’ responses in that meeting and it is clear they influenced the attitude he put to Mr Hodder when reporting to him subsequently. Mr Eckhardt records that Mr Jeffreys appeared nervous with Mr Davies responding as to the SOPs. Mr Eckhardt’s evidence was, “We thought that by asking these questions Mr Jeffreys would understand the significance of his error but I do not believe he did” (Mr Eckhardt’s statement, Exhibit H1, paragraph 37) and further, “… there was no reasonable excuse for Mr Jeffreys’ behaviour and it was unacceptable that he would not accept responsibility” (Exhibit H1, paragraph 39).
[198] Mr Eckhardt’s negative views and belief that Mr Jeffreys should be terminated were based in important part on Mr Jeffreys’ “response to these issues” (Exhibit H1, Mr Eckhardt, paragraph 42). Ms Black’s statement records that Mr Jeffreys’ responses “were not as defensive as his original responses at our previous meetings with him. Rather than passing the blame Mr Jeffreys stated that “I did check it” and “it was an honest mistake”. I believe Mr Jeffreys’ responses at this meeting were different to his original responses as Mr Jeffreys knew his job was on the line” (Exhibit H7, Ms Black’s statement, paragraph 22). (emphasis mine)
[199] It is noteworthy that Ms Black, even if cynical of his motive, concluded that Mr Jeffreys, acknowledged his “honest mistake”, rather than ‘pass the blame’ as in the past. I have taken Ms Black’s more balanced approach as referring to Mr Jeffreys having reflected remorse, even though it was not an apology. This is a very different slant than that taken by Mr Eckhardt and is consistent with Mr Jeffreys’ evidence that “I showed them a little amount of remorse in what I did … It was an honest mistake” (TPN 706).
[200] At the meeting on 17 November Mr Jeffreys had continued to press his view that he had not breached the SOP by not having observed the pouring of the Lactic acid and verifying ‘on the papers’. Mr Eckhardt put to Mr Jeffreys that by “verifying later”, to adopt Team Leader Mercer’s term used to Mr Jeffreys on 28 October, he had “falsified documents”. Mr Jeffreys strongly resisted this charge. In so doing he left himself open to much criticism; that he was not sorry and that be refused to accept responsibility.
[201] It is, in my view, regrettable that rather than meeting to discuss the issues said to be of concern, a charge was formulated and levelled at Mr Jeffreys which was inapt and guaranteed to call up a strong reaction from Mr Jeffreys. Whatever the motivation for levelling that charge, of document falsification, it elicited a readily to be expected response from a sub-trade employee who, whatever his errors, did not, in his clear conception of the term, falsify by changing or reproducing a counterfeit document. The regret is not one of lexicography. The opportunity to press Mr Jeffreys for poor vigilance or inattention was lost in an unedifying dialectical discussion which was then to constitute a new ground to press against Mr Jeffreys.
[202] On a fair consideration of the events of 28 October 2009 it cannot be said that Mr Jeffreys or Mr Mercer were complicit in an attempt to falsify the Dispensing List or any other document. It is true that the Dispensing List misled those that followed; that was its most serious vice. That that affect was a natural concomitant of their actions does not fuel a charge that Messrs Mercer and Jeffreys, in any sense that is fair or meaningful, had that intention. Their mistake was to fail to acquit the amount ultimately dispensed with the required 117g. It was fundamental to Mr Jeffreys’ position to simply say to the Company that he had fitted in with his Team Leader’s organisation of the work in question on that evening.
[203] It is to portray Mr Jeffreys in a very unappealing light to emphasise that his explanation moved the responsibility to Mr Mercer. But, fairly considered there is ample justification for Mr Jeffreys reflecting his explanation as fitting in with Mr Mercer’s plan to achieve maximum efficiency on the night. That had, after all, been Mr Mercer’s sole motivation. Mr Jeffreys’ ‘failure to accept responsibility’ and lack of contrition understood in this way do not justify the conclusion reached by Mr Eckhardt (and not seemingly entirely shared by Ms Black) and then sheeted home to Mr Hodder.
[204] In the interests of fairness it must be noted that there seems to have been no weight whatsoever accorded to the many difficulties under which both were operating, commencing with the Dispensary’s dual errors with the Lactic acid.
[205] Mr Eckhardt has nothing to say about the Team Leader originating such a work plan, bound to breach the SOPs by Mr Jeffreys’ absence, bound to breach the SOPs by having verification achieved by scrutinising scale receipts and not warranting even a mention in the warnings.
[206] With these considerations in mind I have formed the view that had Mr Hodder been more accurately briefed and had the troubling charge of falsifying documents not engendered the strong reaction it (perhaps unwisely) did from Mr Jeffreys, there would have been no sound basis to include amongst his transgressions a failure to accept responsibility or express his regret at the mistake.
[207] Considering these real deficiencies in the investigation, possibly occasioned by the ongoing involvement or Mr Jeffreys’ co-mistake maker Mr Eckhardt, it is necessary, not to speculate on what might have been Mr Hodder’s decision absent such influences, but to reflect the consequence of such an approach being harsh and unjust to Mr Jeffreys.
[208] Having found that Hospira had a valid reason for terminating Mr Jeffreys’ employment (for his failing to verify Mr Mercer’s dispensing was correctly carried out, not by reference to trust in Team Leaders skill and experience, but by independent scrutiny of Mr Mercer’s execution of the Dispensing List) I have come to the view for the reasons outlined above and set out earlier that the termination was nevertheless harsh. I have reached this conclusion on the finest of balances, and acknowledging the strengths in each case, it not having been an easy task to distil the considerable amount of documentary and viva voce evidence.
[209] I now turn to consider remedy. First, it should be recorded that I am satisfied that the relevant provisions of s.390 are satisfied. An application has been validly made and, with reinstatement now not being sought by the applicant, I have formed the view that an order for compensation in all the circumstances of the case is appropriate. Second, s.392 provides criteria which must be taken into account, together with all the circumstances of the case.
[210] I have had regard, in the order it is proposed to make, to the effect of the order on the viability of Hospira s.392(2)(a). I do not believe Hospira’s viability will be affected at all by my order.
[211] Regard has been had for Mr Jeffreys’ considerable period of service (s.392(2)(b)).
[212] Consideration has been given for the remuneration Mr Jeffreys would have received had he not been dismissed (s.392(2)(c)) and the considerable efforts made by Mr Jeffreys to mitigate his loss, including a change in vocation and undertaking a formal re-training course (s.392(2)(d)).
[213] Regard has also been had to the level of earnings of Mr Jeffreys from his new temporary position (s.392(2)(e) and (f)).
[214] The matters had regard for in addition to those dealt with above, that is the s.392(2) matters, are those canvassed in the decision conjunctionally with s.392(3).
[215] Mr Jeffreys’ had considerable service, was 50 years old, barely escaped redundancy in 2008 and was told to improve his performance and attitude. He did neither. I have accepted Ms Black’s general account of Mr Jeffreys’ poor performance. I do not choose to recite it.
[216] Mr Jeffreys may have done well to have taken a more passive role in his self-defence given the glaring error he made. He chose to take a different path, encouraged in the way I have noted by the accusation of Mr Eckhardt. Having accepted Ms Black’s portrayal of Mr Jeffreys’ approach to his duties I have accepted Mr Dalton’s submission, put in the alternative, that any service, absent the termination, would not have long endured.
[217] Section 392(3) must also play a role in quantifying an amount as I am of the view that the aspects of Mr Jeffreys’ performance commented upon by Ms Black which go to poor conduct, and not here rehashed, should have an influence.
[218] Conscious that Hospira paid Mr Jeffreys five weeks pay and mindful of the significant degree of his ongoing loss, I am of the view that an appropriate amount should be calculated on service ongoing from the date of termination of eight weeks. I do not propose in the present circumstances to decrement the amount to be paid, other than by the amount already paid, that is eight weeks less five weeks. It follows that an order will issue shortly requiring Hospira to make a payment to Mr Jeffreys within ten working days of the order, equal to three weeks pay, less the necessary taxation deduction, at the rate applicable to Mr Jeffreys at the time of termination.
COMMISSIONER
Appearances:
J. Allison, solicitor, of the National Union of Workers appearing for the Applicant.
R. Dalton, of counsel, appearing for Hospira Australia Pty Ltd.
Hearing details:
2010.
Melbourne:
April 12, 13; 30.
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<Price code G, PR998942>
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