UD950/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                    CASE NO.

David Fox                                                                                                       UD950/2012

against

National Gallery Of Ireland

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr P. O'Leary B L

Members:     Mr W. Power

                    Ms M. Maher

heard this claim at Dublin on 3rd October 2013 and 7th April 2014 and 8th April 2014

Representation:

_______________

Claimant:              Ms Amanda Walsh, Gibson and Associates Solicitors, Suite 331,

                             The Capel Building, St. Mary's Abbey, Dublin 7

Respondent:         Mr Kevin Langford, Arthur Cox, Solicitors, Earlsfort Centre,

                             Earlsfort Terrace, Dublin 2

Background:

The respondent contended that the claimant compromised the security of the national collection by a gross breach of protocols and a lack of common sense. He had done so by aiding a former colleague, working for an outside agency, in preparing a submission for the Rights Commissioner service. The preparation was done by internal e-mail and according to the respondent, disclosed up to fourteen breaches of providing security sensitive information about his place of work.

It was the claimant’s case that he met with his former colleague OG at his request. OG knew that the claimant was an active trade union representative and asked for his assistance in preparing the submission. The claimant said that what OG had done was atrocious and needed to be corrected and tidied up. He did not accept that there was any breach of security and did not think the e-mails contained any sensitive information.      

Respondent’s case:

The former director of the respondent RK gave evidence of the situation/e-mails being brought to his attention by the head of administration and the head of security. He considered the claimant as both senior and experienced and decided to launch an investigation because of the serious nature of the incident. He considered AL, a co-employee, to be a qualified and appropriate person to conduct an investigation. He told the Tribunal that it was incredible that a senior member of staff could be associated with the e-mails. It was done on a non-secure computer system, mentioned people by name in a derogatory manner and was a total betrayal of faith/trust and relationships.

The investigation was done over a number of days and was conducted with the aid of an external legal representative. The former director said that over four days of investigation nothing changed, it was impossible to assume that the claimant wasn’t involved in the authorship of the e-mails and there was little option but to initially suspend him and then later dismiss him. The claimant had a moral judgement to make, other staff were asked by OG for help with his submission but they declined.

Under cross examination RK said that AL was a librarian had had not done any investigation or fact finding previously. A mail sweep had highlighted the e-mails and he was sure that the claimant’s involvement in the documents was greater than just correcting grammar. He was unsure as to why the claimant’s line manager was not given the task of fact finding. The Garda were not informed at the time. The claimant had no previous disciplinary record and had risen through the ranks over his 22 years of employment.

The Security officer CC said that he was advised of the e-mail content by IT. Staff were aware that their usage was monitored. He arranged for a further sweep of e-mails and five in total were between the claimant and OC re- his submission. The contents named people, companies, camera areas and talked about security cover. One of the e-mails was even sent to an incorrect address. This type of information should never have been passed on by e-mail to a 3^rd party. He believed that the dismissal was the correct decision as the claimant was employed to prevent loss and that includes information and reputation.    

Under cross examination CC agreed that staff wore uniforms with name tags, he was named as head of security in the annual report, cameras had logos on them but said that the contents of a conversation he had with two people made its way into the submission so there was no way that the claimant was only helping out and correcting grammar.

AL told the Tribunal that she was given terms of reference and asked to conduct a fact finding investigation. She e-mailed the claimant with the terms of reference and his representative replied saying that he was declining to attend any meetings. She interviewed everybody involved and, based on the information available to her without the participation of the claimant, she concluded that there was no originating e-mail from OC, the claimants actions (as a senior attendant) were ill advised, he breached IT policy and was the author of the five e-mails. Their contents contained potentially sensitive information relating to security. She referred the matter to GD (Head of Administration) to decide on appropriate action.      

Under cross examination she agreed that she had never done an investigation before and was not the claimant’s line manager. An external person was considered but the claimant wasn’t happy with that either. There appeared to be no contract or job description for him.      

Claimant’s case:

RS the claimant’s former line manager told the Tribunal that the claimant had been a good committed employee who could be outspoken if he felt a situation needed it. He would have expected, as the claimants manger, to have been tasked with doing the investigatory work but was told that GD was doing it. As per the company hand-book it should have been him in first instance.

Asked if the claimant informed him of what he was doing he said “no” and maybe he should have, it would have been good practice. Asked if the contents of the mails were security sensitive and may be of benefit to the wrong people he said “yes”.

The claimant DF told the Tribunal that a former night security person OC had been dismissed because of an incident at the respondent premises. He knew him as someone with good spoken English. OC rang and asked if they could meet. He told the claimant of his case before the Rights Commissioner service and showed him a foolscap sheet of a submission he had written. DF said that he couldn’t make head nor tail or it and as a trade union activist felt obliged to help OC who was a non- national with no one to help him. He typed up the bones of the submission and sent it off to OC, it came and went a few times with OC adding more each time. DF said that, if it was all his work there would only have been one draft, not lots of amended versions.

DF received a letter from GD with a copy of his final e-mail and a copy of the disciplinary procedures. He did not participate in the process as it was conducted by someone who was not his line manager and was contrary to everything he knew. Procedures weren’t followed, they were made up as they went along. He felt he should have been called in by his manger and given an opportunity to comment directly.    

DF said that he never thought that he was putting his employer at risk. He was helping another person as was his family’s tradition and in hindsight was wrong to do it. AL who undertook the investigation had nothing to do with security, then solicitors got involved and everything grew legs. He also stated that Rights Commissioner submissions and decisions did not get into the public forum.  

Under cross examination he said that the amended versions were due to telephone conversations with OC but he couldn’t remember the actual conversations. He didn’t feel he should have brought the matter to the attention of his supervisors and when asked if he accepted he was wrong he said “no, not wrong for helping a colleague but I wouldn’t do it again, in hindsight I should not have done it”. The claimant sought re-instatement as his preferred remedy and both his counsel and counsel for the respondent addressed the Tribunal on the merits of same.

Determination:

After hearing two days of evidence concerning the circumstances leading to the claimant’s dismissal including an examination of the documentation proffered by both parties the Tribunal finds that the respondent was defective in the procedures used or adopted to terminate the claimant’s employment. Conclusions were reached by AL at the fact finding stage of the process and these conclusions were acted upon by RK. The Tribunal consider compensation to be the more appropriate remedy than re-instatement having heard the arguments of both sides.

The Tribunal must consider the claimant’s position with the respondent and are of the belief that he contributed significantly to the dismissal. In such circumstances the Tribunal finds the appropriate award to be compensation in the sum of €25,000 under the Unfair Dismissals Acts, 1977 to 2007

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)