EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Employee UD2043/2011
against
Employer
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr G. Hanlon
Members: Mr R. Murphy
Mr J. Jordan
heard this claim at Dublin on 20th March and 23rd, 24th October 2013
Representation:
Claimant : In person
Respondent : Ms Deirdre Lynch, Matheson Ormsby Prentice, Solicitors,
70 Sir John Rogerson's Quay, Dublin 2
The determination of the Tribunal was as follows:
This Order should be read in conjunction with UD2122/2011. The respondent is the same in these cases and much of the evidence presented by all parties applies to both cases.
Respondent’s Case
The respondent is part of a group that provides information technology assistance and other computer based supports and services to a variety of its clients. Part of its sales pitch is that it provides its customers with a safe and secure environment in which to store and operate their computer operations. Those clients range from government departments to large private sector enterprises. While this group has several bases throughout Europe and has an international management team the events in these cases involved the respondent’s data centres in Dublin and a combination of local management and an external consultant.
In early March 2011 it came to the respondent’s attention that there had been an apparent internal security breach. That reported breach occurred at a data centre in the north western suburbs of Dublin. Both claimants were employed as night shift operations technicians at a specific centre. Their duties included caring for and taking responsibility of the respondent’s networks operations centre (noc) and all its ancillary services. While on duty they were almost always the only employees working at that centre. Notwithstanding the fact that there was up to one hundred cameras overviewing the data centre a walkabout was needed every two hours as there were, according to the claimants’ manager, some things that could only be detected by walking and observing. At all times one of them was required to be permanently present in that centre while the other one conducted a physical inspection of the data equipment. That included checking the low voltage room. Written logs and inspection reports on those walkabouts formed part of their duties.
On 4 April 2011 the technical operations’ manager who was the claimants’ manager and the person in charge of the networks operations centre invited the claimants to an investigation meeting the following day. The claimants were also suspended pending this investigation process. These invitations were issued as an analysis of the written logs and records showed certain shortcomings, unaccounted gaps and general incomplete information identified with those employees and their inputs into those logs and records. The respondent took the view that both claimants needed to give explanations for these discrepancies. This manager met the claimants separately and as a result of those meetings the process regarding this issue was expanded into disciplinary cases. It was the manager’s view that this matter remained unresolved.
Apart from the two claimants the data centre could have up to ten client visitors each night. Those customers only had access to their “cages”. During the day that centre might have had thirty visitors. This manager acknowledged that it was possible that certain rooms/cages could be left in an untidy state prior to the commencement of the claimants shift.
This manager then requested the presence of the claimants at a disciplinary hearing scheduled for 11 April. He listed himself, the chief technical officer and an outside human resource person as the attendees at that meeting. Due to allegations of bullying from the claimants against their manager he then stood aside from this ongoing situation involving them.
In outlining his role in these cases the chief technical officer expanded on the meaning of access logs, power reading data, and walk around checklist sheets. It was his contention that the claimants falsified and gave misleading information on those sheets as they had to be manually filled in. He presented specific examples where there were discrepancies and inconsistencies on those logs, data and sheets on a number of times and dates when the claimants were on duty. The walk around sheets presented to the Tribunal while having the subtitle nightshift yet only listed timings between 08.00 to 18.00 and many were unsigned and lacked initials.
This witness invited the claimants whom he described as very skilled employees to a disciplinary hearing scheduled for 31 May 2011. In meeting the claimants separately the witness was accompanied by an outsourced human resource person. Both claimants opted not to have witnesses or representatives at those meetings. The chief technical officer said that this claimant offered no reasons or explanations for those discrepancies. This claimant also showed signs of stress and behaved erratically at that meeting. The following day this witness requested the claimant’s presence at a disciplinary outcome meeting.
That short meeting took place on 3 June which was the same date of the dismissal letter penned by the witness and given to the claimant. The witness justified the sanction of dismissal on the grounds of gross misconduct and the loss of trust in the claimant as an employee.
The chief financial officer together with another human resource consultant heard the claimant appeal on 23 June and having considered the basis for that appeal upheld the decision of the respondent.
Claimant’s Case
The claimant commenced employment as an engineer with the respondent in April 2007. He immediately began on the night shift which started at 19.00 and lasted twelve hours. Those shifts lasted for seven consecutive nights followed by a week’s break. During the course of his employment he remained on that work cycle. In stating he was not given any training for his work by the company the claimant added that this job while hard was not highly skilled. In 2010 the claimant submitted himself to a health assessment examination as he felt his well-being was damaged due to this continuous night work. He also requested to be redeployed to day work. The following year both he and the other claimant reported shortcomings in what they considered to be health and safety issues at work.
The claimant told the Tribunal that from April 2011 onwards he was subjected to investigation, meetings, and disciplinary hearing. At all times he informed his managers and others that he never falsified documents and always carried out his duties professionally. While he was the noc commander it was not his role to take those walk around and commented that the sheets linked with that exercise did not contain his signature nor were they crucial for operational purposes.
Some of the meetings and hearing he attended were recorded audibly. His attempts to get a copy of those recording did not secure them. However, he was presented with a transcript which he claimed was incomplete and inaccurate. This witness also felt threatened and undermined by comments made by the human resource person at one meeting. He regarded the whole process adopted by the respondent as illegal due to its use of data particularly close circuit television in his case. While holding that attitude the claimant did not co-operate with respondent in this case. He contended that the respondent’s decision to dismiss him was for reasons other than those stated by the company.
Determination
The respondent sourced an outside human resource agency in this case and the claimant relied entirely on himself to negotiate and manage his own case while dealing with the respondent. One consequence of those arrangements was the dismissal of the claimant and a full hearing before the EAT. While both sides had their merits and strengths each party is responsible for their actions. The claimant’s approach to the respondent’s allegations against him was weakened by the stance he took towards those allegations. Notwithstanding these principled objections, not fully engaging with the process did not advance his case.
The weakness in the respondent’s case centred on their poor paperwork especially those walk around sheets, and flaws in their procedures. The issue of recordings, transcripts, and the neglect to inform the claimant of the serious consequences and sanctions he faced contributed to those weaknesses. Sanctions other than dismissals were not addressed by the company in this case. Considering all the circumstances in this case the Tribunal finds that the sanction of dismissal was disproportionate.
The claim under the Unfair Dismissals Act, 1977 to 2007 succeeds and the claimant is awarded €2636.00 as compensation under those Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)