EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD954/2013
WT 169/2013
CLAIM OF:
Gordon Anderson
against
James O Connor & Geraldine O’ Connor
t/a OCPM Property Consultants
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey BL
Members: Mr. M. Noone
Mr. F. Barry
heard this claim in Dublin on 5 September, 8/9 December 2014, and 21 April 2015
Representation:
Claimant: Mr. Mark O’Connell B L instructed by the claimant.
Respondent: Ms. Christina Ryan BL instructed by
Plunkett Kirwan & Co., Solicitors, 175 Howth Road, Killester, Dublin 3
The determination of the Tribunal was as follows:
Respondent’s Case
Giving sworn testimony to the Tribunal on 5 September 2014, JO’C (managing director of the respondent) said that the claimant had been a personal friend to whom he had given a job in his property management business. The claimant had been a very good employee for about five years albeit with some issues that this manager decided to accommodate. However, he became concerned when the claimant became interested in the respondent’s accounts and started to do a lot of work outside normal working hours including weekends. This director was not comfortable with files going off-site. The “last straw” was when the claimant downloaded the respondent’s software. This manager told the Tribunal that the respondent had records relevant to 2900 clients such that the claimant could hit the ground running on setting up in business for himself. The witness promptly summarily dismissed (without pause for compliance with procedures) the claimant who was now running his own business and, in the respondent’s view, had incurred much less loss following his dismissal than the claimant would have the Tribunal believe.
The witness also indicated that the claimant had solicited work on behalf of the respondent from a caretaker at a particular property site and had incited that person to falsify records. The claimant’s position on this was that this caretaker was an independent contractor who could do what he wished. The managing director had become concerned that the respondent could be billed by another entity for poaching work after this caretaker and his wife had circulated fliers about car parking at a development. He explained that the Respondent had used this person on a sub contractual basis to do work. But a difficulty arose and he decided not to use him again. He made it clear to all that this caretaker was not to be used. However, the Claimant allocated work to EW after he had made it clear to him he was not to be used.
The managing director gave evidence that the Claimant downloaded software from the respondent’s computer system.
When the Claimant had tried to download software another employee told the Claimant that he could not do that and asked the Claimant if he had permission from the managing director to do this and the Claimant told her that he had. He asked the Claimant about this and the Claimant admitted to him that he had attempted to downloaded software. He asked the Claimant why he did and the Claimant told him that he had made a mistake. He had had a previous conversation with the Claimant regarding the database. The Claimant had asked for external access to the database in case he needed it for emergencies but he told the Claimant that the database was not to be used / accessed off-site.
A recording of the conversation between the witness and the Claimant was opened to the Tribunal. During the conversation the witness told the Claimant that he was terminating his employment.
The witness agreed in cross-examination that he considered it a serious legal matter to dismiss someone. He was asked if he could not have given the Claimant a final written warning and he explained that because of the matter of invoicing and downloading information in a 48 hour period that “fair play went out the window, I had no time for niceties”. It was put to the witness that he treated the Claimant as being guilty and he replied “yes guilty until proven innocent, until he can prove… if he could convince me otherwise he was guilty and he did not, I afforded him the opportunity to prove he was innocent, I was protecting my business”.
The Tribunal heard evidence from another employee who worked in the office. She explained that the managing director told them that they were not to use a named caretaker for work and the Claimant was present when this was said. She was present when the Claimant said the he was going to download the information. She asked the Claimant if the managing director knew about this and he told her that he was doing this in case of emergencies. She knew that this manager did not want the information leaving the office. She told him the following day that the Claimant had downloaded the information.
The Tribunal heard evidence from PR who is the property manager. He gave evidence as to invoicing and other matters. He explained that he was not allowed to take the database information off the premises and there was no reason whatsoever to take the information off the premises. The witness agreed that any information needed for out of hours was already accessible.
Claimant’s case:
The Tribunal heard evidence from the Claimant. He told the Tribunal that he had known the managing director for a number of years. In 2009 he asked him if he would like to join his company. The Claimant explained his duties and job title. He had not been given a contract of employment. He was told at one point by this director that he was doing a lot of work at the weekend. The claimant felt that it was part of his duties. The claimant maintained that he was never told by this director that he did not like files going out of the office nor did he tell him not to bring files out of the office. He was never instructed not to remove files from the office. He was not offered extra monies for doing extra work out of hours; he did not expect it as he did it for the betterment of the company. The managing director appreciated this and frequently thanked him for doing this extra work.
It was put to the Claimant that JOC felt that he was being held to ransom by him (the Claimant) and he replied that he never held him (JOC) to ransom.
The Claimant admitted that he did engage a particular caretaker despite being asked not to do so. He knew that he should not have done so. However he did have a reason / reasons for doing this. When asked why he downloaded the information he explained that it was to have access to the owners contact details, for example if a tap was left on in a property, to be able to contact the owner also to have access to the information at the weekend.
He downloaded the information onto a memory stick. When he tried to access that information onto his computer it did not accept it. The information was of no commercial value to him and he was not thinking of leaving the company or setting up his own business at the time.
The claimant told the Tribunal that on 24 April 2013 he was invited to meet the managing director. He described the manner and tone of that director as aggressive. The witness was not informed that their dialogue was being audibly recorded. Towards the end of their verbal exchanges that director physically presented him with a letter of the same date signed by the managing director. That letter began with the sentence Please be advised that your employment with OCPM (the trading name of the respondent) is terminated with immediate effect. This letter accused the claimant of continuing to engage with a named caretaker subsequent to being instructed not to do so. Another accusation was that the claimant had downloaded files from the workplace onto his memory stick. According to the letter writer the claimant had committed a serious breach of trust.
The witness stated that at the time the managing director was aware that he had not succeeded in downloading files as alleged. Besides the managing director knew the claimant was in the habit of taking work home with him and never asked him to cease that exercise. He added that there was nothing sensitive or particularly significance in those files. He certainly had no intention to use those files to poach clients away from the respondent. At that time he had no plans to leave the respondent and establish his own property practice. However, by June 2013 he began to set up and promote his own business as a way to mitigate his loss following his summary dismissal. The witness pointed out that he was not given the right to reply to the allegations made against him. There was no right of appeal against his dismissal.
Determination
This is a case where both sides lose. The respondent recruited the claimant and assisted him in the development of his career. This action was an explicit signal to the claimant that the respondent had trust and confidence in him as an employee. The adduced evidence shows that this trust and confidence was misplaced if not abused. The respondent was understandably disappointed and annoyed at the subsequent behaviour of the claimant. The claimant’s attempt to undermine and indeed usurp his employer’s business was disloyal and inappropriate.
Notwithstanding the employer’s anger and irritation at the claimant’s conduct, fair and proper procedures still had to be applied in this case. In their desire to terminate the claimant’s employment the respondents neglected those basic procedures. This serious flaw balances out the claimant’s input into his own dismissal as his contribution to his termination was highly significant.
In considering all the circumstances of this case the Tribunal finds that the termination of the claimant’s employment was unfair under the Unfair Dismissal Acts, 1977 to 2007 and awards him €0.00 (a zero amount) as compensation under those Acts.
The appeal under the Organisation of Working Time Act, 1997 succeeds and the Tribunal awards the appellant €3653.85 as compensation for outstanding leave entitlements.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)