EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE (claimant) UD1851/2011
Against
EMPLOYER (respondent)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr M. Carr
Mr G. Whyte
heard this claim at Dublin on 5th February 2013 and 5th July 2013
Representation:
_______________
Claimant(s) :
Respondent(s) :
The determination of the Tribunal was as follows:
Summary of respondent’s Case
Giving evidence, SG, Manager, stated that the respondent operates a hardware & software business, monitoring power and electricity supply.
The claimant was a Senior Software Engineer and commenced his employment with the company on 1st July 2008. Outlining the events that culminated in the dismissal of the claimant, SG stated that he received an e-mail on 22nd October 2010 from AF in relation to a serious matter involving the claimant. The use of an IT term called “Easter Eggs” was referred to by the claimant in a comment box in the company’s Agile task monitoring and tracking tool system“ JIRA” and is considered to be a “dangerous” term in the IT field. The term basically means a hidden programme within a programme.
Following on from the e-mail, SG decided to look at all the work the claimant was involved in. Two other Engineers also checked the work of the claimant over a three to four day period. A letter of suspension was issued to the claimant on 15th November 2010 and this was opened to the Tribunal along with the investigation report dated 30th November, 2010. The investigation report confirmed that the claimant had refused to sign a mandatory compliance report confirming that he is in compliance with the Company’s “Code of Business Practices”. SG told the Tribunal that tasks are normally broken down into one to two day duration but the investigation found that the claimant provided an estimate of 52 weeks for a task. This was against company rules.
SG indicated that evidence had also been found that the claimant had e-mailed himself from the company e-mail address to his personal e-mail address in breach of the company e-mail policy. A disciplinary meeting was held on 10th February, 2010. SG stated that the claimant did not want the meeting to take place and instead handed in a statement responding to the investigation report. The claimant’s written response to the investigation report was opened to the Tribunal.
On completion of the investigation, a letter of dismissal, on the grounds of gross misconduct, was issued to the claimant on 16th December 2010.
Under cross-examination, SG told the Tribunal that a verbal warning was given to the claimant in April, 2010. No verbal warning was given to the claimant between the months of September to November, 2010. No written warning or final written warning was given to the claimant. The company relied upon section 17 (h) and (i) of the Terms and Conditions in relation to the dismissal. It was felt by the respondent that the issues were severe enough to dismiss the claimant.
In re-examination, SG told the Tribunal that a full investigation had been carried out by the respondent. The claimant’s actions undermined the trust of the company. Although the claimant chose not to engage with the respondent at the disciplinary hearing, the company considered the written response submitted by the claimant.
In reply to the Tribunal, SG indicated that the company has an open door policy towards all employees. The project the claimant had been working on was running for three to four years. The particular project had not been working well and a new Engineer was brought onto the team. The claimant had been team leader prior to the appointment of a new Engineer to the team.
The Operations Manager (OM) told the Tribunal that the issues identified in relation to the claimant were of a serious nature. The potential loss of ISO accreditation would be severe to the respondent. With regard to the term “Eater Eggs”, any surprises in computer software/hardware could be a major issue for company customers. The OM was present at the meeting with the claimant of 9th August, 2010. Most of the points raised by the claimant at the meeting were project related and should be directed to the Team Leader of the project at the daily meetings. Some items were addressed at the meeting of 9th August, 2010. The OM told the claimant that his door was open if the items of concern were not addressed. It was agreed that the claimant would no longer work one day a week from home. All work would be office based going forward from the last week in August, 2010. The claimant had been replaced as Team Leader on the project as the project was not performing well.
In relation to the disciplinary meeting of 10th December, 2011 the OM indicated that the claimant attended the meeting and handed in his response to the investigation report. The claimant asked all parties present to sign receipt of his response and then left the office. The OM said the claimant refused to take part in a disciplinary meeting on the day.
Dealing with the issues the claimant raised in his response document, the OB stated that:
· “Easter eggs” can be a surprise and the seriousness depends on the software used. As the respondent’s software is used for power utilities, then it is a major concern to the company as regards safety issues.
· As regards the reference to “constructive criticism”, the OM stated that the respondent has processes within the company where there may be a grievance to be put forward.
· The comments in “JIRA” could have potentially resulted in the ISO accreditation being removed/suspended.
· The OM indicated that it is not correct to state that “JIRA” is exclusive to the BCU team.
· It was explained to the claimant that he was classed as an executive for the purposes of signing the CG compliance report.
· There was no need for the claimant to send e-mails from the company system to his own personal e-mail. He had access to the company e-mail system from home.
· In relation to “Goose”, which was the project the claimant was working on, all tasks should have been broken down into 4/5 day estimates.
According to the OM no grievance had been brought to the attention of the respondent by the claimant. The respondent was not aware that the claimant had concerns.
In cross-examination, the OM denied that he said the claimant points were irrelevant at the meeting of 9th August, 2010. He had said that they were relevant to the particular project the claimant had been working on.
In reply to the Tribunal as to which heading the claimant was dismissed under, the OM indicated that the list was non-exhaustive. The claimant had refused to engage in the meeting of 10th December, 2010 which was held to provide the claimant the opportunity to respond to the complaints. It was not a meeting of dismissal. The respondent considered the response document put forward by the claimant.
It was necessary to suspend the claimant on 15th November, 2010 in order to investigate the serious issues which had come to light.
The company did not come to any harm as a result of the claimants actions.
The General Manager (GM) told the Tribunal he was involved in the appeal with the claimant and having evaluated all the issues, upheld the dismissal decision. He denied that the respondent wanted to get rid of the claimant.
Summary of claimant’s case
The claimant was employed as a Software Engineer with the respondent and commenced his employment in July 2008 working with the BCU team within the company.
The claimant explained the reason he gave a 52 week estimate in relation to “Goose” was because the software/hardware was not in existence nor had it been in existence during the previous 52 weeks. If he had committed to a shorter timeframe, he would have had to test the system within 4/6 weeks and then he would have been blamed if it was not done. The system was not ready to be tested. The claimant stated that when he asked when “Goose” will be available, the result was his suspension. He said he had sent e-mails about the problem to the respondent, although he could not prove it.
The respondent was aware that “Goose” was not available but did not follow up on the matter.
In relation to the “Easter eggs”, the claimant told the Tribunal that because of the fact that he was only working on testing, the messages were not being put into software, only specification documents, which would only be seen internally. The claimant indicated that he should have said he put in “spelling errors” instead of the word “Easter eggs”. Although it was the wrong choice of wording from the claimant, he maintained that the respondent exaggerated the case.
In relation to “JIRA”, the claimant submitted that the respondent’s accreditation was unlikely to have been affected.
As regards the use of his personal e-mail, the claimant indicated that he would send documents home as a way of bookkeeping as he could not finish his work in the office. He used his personal e-mail to remind him of work to be done.
The reason the claimant did not sign the compliance report was because it was for executives/department heads. He thought that an executive was a management role and this did not apply to him.
Although the claimant did not verbally engage in the disciplinary hearing of 10th December, 2010, he handed in a response document to the complaints against him. The reason he did not engage verbally was because as a non-national he preferred to put matters in writing as it allowed him the opportunity to look up words as necessary. The claimant stated he engaged in the appeal hearing.
Under cross-examination, the claimant did not accept that it was a normal response by the respondent to be concerned with regard to the phrase “Easter eggs”, as he was only working on documents and no codes were altered by him. He should have used the words “wrong spellings”.
He did not process a grievance as he had no grievance as such. They were “technical issues/wrong things”. He did not know who to trust as there was no proper HR in place. The claimant confirmed he was putting together a document of issues and had intended forwarding it above local management level. The claimant did not accept that he was in breach of the internet policy as regards forwarding e-mails from the company system to his personal e-mail.
Giving evidence, B O’D, stated he was previously employed as an Engineer with the respondent. He told the Tribunal that the typo was used in a word document and is not transmitted to the software. The code is written from the document and then tested. It would not cause a power system to crash and this was pure “fantasy”. He said that “easter eggs” can mean many things. The witness confirmed he is not an accredited auditor.
Determination
The Tribunal has carefully considered all of the evidence together with the documentation submitted during the hearing. No grievance had been brought to the attention of the respondent by the claimant. The respondent was not aware that the claimant had concerns. The claimant did not verbally engage in the disciplinary hearing of 10th December, 2010, instead he handed in a response document to the complaints against him in the investigation report. The claimant asked all parties present to sign receipt of his response and then left the office. The reason he did not engage verbally was because as a non-national he preferred to put matters in writing as it allowed him the opportunity to look up words as necessary. The Tribunal does not accept that the claimant had any real issues in terms of understanding the language given the fact that his job was carried out through the medium of English, and even if he did, the onus was on him at that stage to draw attention to that fact. The claimant, in essence, refused to take part in a disciplinary meeting on the day. Consequently, in all the circumstances of the case, the Tribunal finds that the claimant was not unfairly dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)