EMPLOYMENT APPEALS TRIBUNAL
CLAIMS(S) OF: CASE NO.
UD1952/2010
EMPLOYEE - Claimant MN1884/2010
Against
EMPLOYER- Respondent
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B.L.
Members: Mr T. Gill
Ms H. Murphy
heard this claim at Galway on 17th April 2012 and 6th November 2012 and 13th May 2013
Representation:
Claimant(s) : Ms. Louise Fogarty BL instructed by:
Hamilton Turner, Solicitors, 66 Dame Street, Dublin 2
And by Mr Andrew Turner on second day of hearing
Respondent(s) : Mr Michael MacNamee BL instructed by:
Ms Vivienne Matthews O’Neill, DAS Group, 12 Duke Lane, Dublin 2
Background
The claimant was employed from December 2007 to July 2012 as an Advertising Sales Executive. The respondent is a weekly free newspaper. A complaint was received by one of the respondent’s staff (not available to give evidence) concerning the claimant allegedly e-mailing confidential information relating to a particular advertisement to another advertiser. The advertisement in question related to beauty and body treatments. The complaint went up the chain of command to the Managing Director (PT), but as he was to commence leave he referred the matter to the claimant’s Line Manager (DP) for investigation. On the 6th July 2010, the claimant was suspended pending an investigation. An investigatory meeting was held on the 8th July 2010 conducted by Sales Manager (DP) who was the claimant’s line manager (not available to give evidence). The General Manager/HR Manager (PM) was present as note taker. By letter dated the 8th July 2010, the claimant was requested to attend a disciplinary hearing on the 14th July 2010, and advised, inter alia, that he had a right to representation, and that the meeting would be chaired by the Sales Manager (DP) (not available to give evidence) and that the General Manager/HR Manager PM would be the note taker.
The claimant attended the disciplinary meeting on the 14th July 2010 and was dismissed the following day, the 15th July 2010 for gross misconduct. He was advised of his right to appeal within seven days and that the Managing Director (PT) would hear the appeal on the 27th July 2010. The decision to dismiss was upheld.
Respondent’s Case:
The General Manager/HR Manager (PM) gave evidence. She attended the investigatory and disciplinary meetings as a note taker. She had no part in the decision to dismiss the claimant. She stated that her typed notes of the minutes of the meetings were an accurate record of what was said. She could not produce her hand written note to the Tribunal and could not explain why the typed notes had not been signed by those present at the meetings.
The Managing Director (PT) gave evidence that he conducted the appeal hearing on 27th July 2010. The claimant was represented by his trade union representative. The witness gave evidence that the respondent is a free weekly paper and depends on advertisements for revenue. He alleged that the information, which had been e-mailed by the claimant to a competing client, had contained confidential information which was not previously in the public domain and this had caused the customer to make a complaint. The witness accepted that some of the information contained in the advertisement had been in the public domain through a previous advertisement, but did not accept that all of the information had been carried in a previous advertisement. In particular, he stated that there was a difference in relation to pricing information contained in the advertisements. He told the Tribunal that the customer was very angry and upset about this and that the claimant acknowledged that he had broken customer confidentiality. He stated that advertisements must be kept confidential until they are published and the claimant’s actions amounted to a fundamental breach of trust. The witness did not accept that the claimant’s action was an accident. He stated that the reputation of the respondent company was paramount and he upheld the sanction of dismissal. This decision was conveyed to the claimant by way of letter dated 29th July 2010 and was opened to the Tribunal. The witness was satisfied that the investigation, which had been carried out by the respondent had been conducted in accordance with company policy. He stated that as he was going away on three weeks’ leave, he asked the IT Manager and the Sales Manager (DP) who was the claimant’s line manager (not available to give evidence) to deal with the matter. While on leave, he had not received any communication, nor had he been contacted by DP or anybody else in relation to the investigation. He stated that on his return to work he learnt of the dismissal.
The witness also stated that the claimant was suspended on the 6th July 2010 and that he (the witness) went on holidays on the 8th July 2010. He confirmed that the claimant was dismissed on the 15th July 2010 and that the person who effected the dismissal, the Sales Manager (DP), left the respondent company approximately one month later. He was unaware of DP’s current domicile.
Claimant’s Case:
The claimant was employed as a sales executive selling advertising space with the respondent company. The role involved managing client lists, managing payments, and marketing, advising clients and seeking new clients. He regularly met sales targets and had a good working relationship with his employer. On the 5th June 2010 he had his six month sales review meeting and got good feedback, being the only sales person to meet targets that month. On the 6th July 2010 when he returned to his desk, the IT Manager was working at his (the claimant’s) computer. He noticed that the IT manager was forwarding his sent emails to the MD, which included an email to one of his clients. The email dated the 30th June 2010 sent to a client included an advertisement of a competitor, which he believed appeared in another publication and was already in the public domain. Prior to the 6th July 2010 the claimant met this client on a weekly basis always bringing along other publications to examine the advertisements of any competitor. On this occasion, in order to save time he had mistakenly sent on a copy of the competitor’s advert to his client. He had no reason to think that the advertisement contained any confidential information. That day his line manager (DP) suspended him and requested his phone. He was escorted off the premises and not permitted to collect his personal belongings. At an investigation meeting conducted by his line manager (DP), on the 8th July 2010, the claimant apologised for sending the email and accepted it was a mistake to assume the advert had already been published the previous day. A disciplinary meeting was held on the 14th July 2010, which was also conducted by his line manager (DP). The claimant expressed concern that the meeting was not conducted by a more senior manager as the line manager (DP) was new to the organisation and employed only on a probationary contract at the time. The line manager (DP) left his employment that same month at the expiration of his probationary contract. At that meeting the claimant again admitted sending the email, having no reason to believe the content was confidential. He stated that the purpose of sending the email was only to save time and for no personal gain. He was dismissed by letter dated 15th July 2010. The claimant appealed his dismissal on the grounds that his behaviour was not gross misconduct. The appeal meeting was conducted by the Managing Director (PT) on the 27th July 2010. At the meeting, the claimant was asked about a cash collection matter which the claimant understood was dealt with at his review meeting on the 5th June 2010 and had no relevance to the appeal and was not previously raised during the disciplinary process. The claimant asked if another form of sanction other than dismissal be applied. The claimant felt the respondent was “trying to get rid of him” and was uneasy about the MD’s role as the appeal’s officer when he had already been involved in the process from the date of the claimant’s suspension.
Determination:
The Tribunal has carefully considered all the evidence adduced and submissions made by both parties. The claimant was dismissed for gross misconduct. As the term is not legally defined, the claimant’s conduct is a matter of fact to be determined by this Tribunal. Gross misconduct generally presupposes intentional and deliberate misconduct. In this case, the claimant admitted to forwarding by email an advertisement to his client believing at the time that its contents were in the public domain. It was a time saving exercise, motivated by expediency. There was no evidence of malfeasance on the claimant’s part. The advertisements, in question, relating to beauty and body treatments, including laser hair removal, were in the public domain, being constantly featured in the two free weekly publications. There was no evidence of loss of business or revenue by the respondent.
The nature of the enquiry carried out by the respondent prior to the decision to dismiss the claimant was flawed in that:
- The complaint which led to the claimant’s dismissal was not factually and clearly stated, nor was the complainant identified thus depriving the claimant of the opportunity of offering an explanation for his actions.
- The Sales Manager (DP), who was also the claimant’s line manager, was de facto subordinate to the claimant. DP was working his probationary period with the respondent company when the Managing Director (PT) placed him in charge of the disciplinary process. DP left his employment approximately one month after the claimant’s dismissal. He was unavailable to give evidence.
- The independence of the Managing Director (PT), who heard the claimant’s appeal, was open to question in that he had already been involved in the investigatory process on the date of the claimant’s suspension.
- The respondent failed to consider alternative sanctions.
From the factual evidence, and in the light of explanations offered, it was clear that the respondent acted unreasonably under the circumstances. The decision to dismiss the claimant was excessive and disproportionate to the gravity of the complaint.
The Tribunal unanimously finds that the claimant was unfairly dismissed and awards the claimant €51,000 under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal further awards the claimant €800.00 being the equivalent of two weeks’ gross pay, in lieu of notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)