EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Vygintas Bialaglovis - claimant UD1727/2014
against
C & F Automotive Limited – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath BL
Members: Mr T. O’Grady
Mr J. Jordan
heard this case in Mullingar on 19th January 2016
Representation:
Appellant: Ms Mary Paula Guinness BL instructed by Barry McAlister of
John P Prior & Co Solicitors, Cogan Street, Oldcastle, Co. Meath
Respondent: Mr Thomas Harrington, in house legal advisor, C&F Group,
Cashla, Athenry, Co. Galway
The determination of the Tribunal is as follows:
Determination
The Tribunal has carefully considered the evidence adduced in the course of the Hearing. The claimant brings a complaint of unfair dismissal against his former employer arising out of their decision to terminate his employment by reason of gross misconduct on 11th September 2014.
The claimant is a Lithuanian national who commenced his employment with the respondent manufacturing company in and around July 2013. The respondent manufacturing company makes specialised car trim and it is accepted by the Tribunal that this is a hugely competitive market with the respondent company doing well to hold its own against much larger factories operating on the continent.
It is accepted that it is in the nature of the industry that car manufacturers keep their trade-secrets and development very secretively and that the large car manufacturing companies impose strict confidentiality guidelines on any company to which they have outsourced work.
Evidence to this effect was produced to the Tribunal and it is generally accepted that the premises in which the claimant worked was expected by the respondent’s customers to operate a system of confidentiality such that competitors should never know when or how car parts were being made and developed and also that they keep secret any information which might relate to manufacture design and output.
The claimant was a good employee and his employer had no recourse to discipline or otherwise reprimand him.
In and around September 2014 at a Rights Commissioner hearing certain photographs were put into evidence on behalf of an employee of the respondent company. Management at the company were undeniably surprised to see photographs taken inside the plant and which showed certain information relating to output and also showing at least one worker operating a machine. It was said in evidence that whilst employees were allowed have their mobile phones (and therefore cameras) about their persons in the course of the working day all third parties attending the premises would be required to leave their phones at the door. The respondent’s representative pointed to this practice as evidence of how seriously they took the need to preserve the confidentiality of what went on inside the factory.
The HR manager and the then general manager initiated an investigation and quickly discovered the author of the particular photographs and an investigation meeting was conducted on foot of an invitation to attend same having been put to the claimant.
Ultimately, the Tribunal had to judge the level of the claimant’s understanding of English. When the claimant came to give evidence, on balance, the Tribunal has to accept that the claimant’s English, whilst good enough for a general operative was far from fluent and it was unreasonable of the employer to assume that a Lithuanian employee would have confidently understood the import, significance and warning contained in the confidentiality/patents clause of his contract of employment. In fact the Tribunal would suggest that even an English speaking general operative might be hard-pressed to understand the significance of the patents aspect of the clause.
On balance, the Tribunal finds that whilst the claimant may have acknowledged that there was a confidentiality clause in his initial contract of employment, there is a big difference between performing wilful acts of industrial espionage and the careless production of photographs obtained in the workplace.
The Tribunal accepts and indeed the claimant admits that he took the 4 or 5 photographs in question. That the claimant was motivated by an understandable desire to assist his father make a case of unfair selection for redundancy is beyond doubt. These intentions were motivated by his filial duty. The Tribunal cannot accept that it was intended that the photographs were taken to cause damage or embarrassment to the respondent company though neither was it damage that the respondent ultimately accused the claimant of.
Much was made of the failure by the respondent to seek to retrieve the photographs in question and on balance the Tribunal would find that their return was not sought primarily because they did not contain anything particularly damning to the respondent’s operations.
However, from the respondent’s point of view what the photographs did represent was an unacceptable breach of the contract of employment and a breach of a policy which was implemented by reason of the demands made by valued customers and the bottom line for the respondent is that these external customers are the pay-masters and in seeking to work for these customers the respondent is obliged to operate to the standards imposed on them. The respondent cannot be sure that the claimant knew or was capable of fully knowing the significance of confidentiality in the workplace but once the claimant had been implicated in a clear breach of confidentiality the respondent’s ability to retain the status quo was limited.
The Tribunal finds that the move to summarily dismiss was disproportionate and some consideration should have been given to moving the claimant to a position which would have taken him away from sensitive and privileged areas. No such alternative was even looked at. Ultimately such a proposition may not have been practical but the respondent had to at least be seen to have looked at all reasonable alternatives to the ultimate sanction of dismissal especially in circumstances where the respondent did not establish on the balance of probabilities that the claimant had an understanding of the language of confidentiality.
The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the claimant is awarded the sum of €12,000.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)