UD1059/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                      CASE NO.

Patrick Noone

- claimant                                                                                    

                                                                                                                               UD1059/2014

against

Coilte Teoranta

- respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms C. Egan B L

Members:     Mr P. Pierson

                    Ms H. Henry

heard this claim at Galway on 19 October 2015, 7 December 2015 and 8th December 2015

Representation:

Claimant(s) :       Ms Liz Murray, SIPTU, Liberty Hall, Eden Quay, Dublin 1

Respondent(s) :   Ms Sinead Mullins, IBEC, Confederation House, 84/86 Lower Baggot Street,

                            Dublin 2

Respondent’s Case

(ML), HR department gave evidence of the HR director (EM) contacting him on the 14 January 2014. He was asked to investigate breaches of company policies whereby confidential information was shared with a third party an employee of (MTG) which included auction information. The respondent company is the main supplier of timber in the country and operates in an environment where they could not meet demand. (ML) was provided with I.T. reports and internal audit reports relating to the incidents involving the claimant. He contacted the claimant that same day and a meeting was arranged for the 15 January 2014. (ML) suspended the claimant with pay. To allow the claimant time to get representation the next meeting took place on the 29 January. Electronic evidence relating to the incidents was given to the claimant at the start of the investigation process. The minutes of that meeting and the emails from the claimant to (J) an employee of (MTG) were opened to the Tribunal. The emails between the claimant and (J) with attachments dated 15 November 2013 and 9 January 2014 were put to the claimant and he confirmed he had sent them. (J) had worked for the respondent company at a weighbridge facility and was familiar with the respondent’s operations. At the meeting the claimant explained that he had a chance meeting with (J) on the morning of the 14 November 2013. (ML) reviewed telephone records with the permission of the claimant. The telephone records formed part of the investigation and identified phone calls between the claimant and (J) prior to each email. At the meeting the claimant explained that (J) had guided him through the process of sending the emails with the attachments and then later said that (J) had taken control of his keyboard and sent the emails. The minutes of the meeting were sent to the claimant on the 7 February 2014 and a second investigation meeting was arranged.

(ML) gave evidence of a third incident involving an email dated the 17 October 2013 which included auction dates and details of a commodity sale. This came to his attention after the first investigation meeting. The claimant had not disclosed this email communication at his first investigation meeting despite being asked if he had emailed any other information to (J). On the 12 March 2014 (ML) sent a draft investigation report to the claimant and his representative. He received a submission from the claimant dated 20 March 2014 which was opened to the Tribunal. (ML) was of the belief that the claimant had thirty six years' experience in the business and was aware of the significance of sharing information with customers of the respondent. The final investigation report issued to the claimant dated 25 March 2014 and was opened in full to the Tribunal. The outcome of the investigation was that the claimant had breached company policies and a disciplinary hearing was scheduled for the 2 April 2014.

(RL), marketing and sales director of the respondent company gave evidence that he became aware of the potential leak of auction information from a timber industry source on 18 December 2013. He contacted his timber sales manager, internal audit and the I.T. department, and an investigation was conducted to ascertain the names of employees who had access to the auction information. It was discovered that the claimant had sent two e-mails to (MTG), a customer of the respondent. The witness and (ML) then met with the claimant and outlined the seriousness of the potential breach of confidential information.

The witness outlined the auction process in detail to the Tribunal which he described as a well-established methodology. Auctions take place fortnightly and six weeks before each auction, information is sent to customers. Each auction is audited and lots are auctioned in random order. It is a small concentrated industry and customers have 30 seconds to place bids. It is a blind bidding process and when each lot closes the highest bid is placed on screen marked sold or unsold. No information is given as to how many customers participated in the bidding and names of under bidders are not disclosed. Customers are not made aware of reserve prices. He gave further evidence that the claimant sent internal reports to (MTG) which contained details of customers that had participated in auctions. The information is very sensitive, is not publicly available, and could give an unfair competitive advantage to one customer over another. The respondent is a dominant supplier in the marketplace, and it is vital for their brand and reputation that their business is managed to the highest possible standard. He accepted that the breaches did not result in any loss to the company because they were detected after two incidents, and a pattern from the auctions process could not be established.

(SD), head of HR special services gave evidence that he conducted a disciplinary hearing with the claimant, following the completion of the investigation process, in relation to the alleged breach by the claimant of commercially sensitive and confidential information. He met with the claimant on 9 April 2014 who was represented by his trade union representative. He told the Tribunal that it was acknowledged that confidential information had been passed via the claimant’s e-mail account. He told the Tribunal that the claimant’s representative acknowledged that this was a serious matter and accepted that a disciplinary sanction was appropriate. A sanction short of dismissal was requested.

The witness gave further evidence that there had been a serious breach of trust, and the claimant had knowingly allowed access to his I.T. system to allow commercially sensitive information to be forwarded outside of the company. It was quite clear that the transfer of this data/information coincided with auction dates. The witness outlined in detail to the Tribunal the breaches of company policy that occurred in relation to the company’s policies and procedures, and he was in no doubt the nature of the breaches warranted dismissal. He wrote to the claimant on 11 April 2014 confirming this position, informing him that he had contravened the provisions of the respondent’s policies including the group code of business conduct, the internet and email acceptable usage policy, and the acceptable use of IT Resources Policy. He recognised the claimant’s previous record of employment and length of service, but equally he had to consider the gravity and seriousness of the offence. He considered it to be gross misconduct that warranted dismissal and the claimant was afforded the opportunity to appeal the decision. The claimant did appeal the decision and the decision to dismiss was upheld.

Claimant’s Case

The Tribunal heard evidence from (P), from (MTG). He told the Tribunal that he did not commission employee (J) to access data from the respondent company. He outlined to the Tribunal the process involved in preparing a bid at auction. He gave evidence that the information received by (J) was historical information and was of no use to his company. He gave evidence that within a couple of hours of each auction, lorry drivers and harvesting foresters know who bought the lots at auction. He accepted that he would be anxious to know the identity of buyers at auctions. He told the Tribunal that the respondent company contacted him concerning the breach of information to his company, and requested that the information be destroyed.

(J), forestry manager of (MTG) gave evidence that he previously worked for the respondent company, leaving in June 2011. He denied that he was familiar with the respondent’s policies and procedures and received no I.T. training during his tenure of employment with the respondent company. He accepted that he contacted the claimant on three occasions in October 2013, November 2013 and January 2014 seeking information on the identity of buyers of lots of timber at auction. He was given the information by the claimant and also accepted that he helped the claimant access the information from the respondent’s I.T. system. In that regard he told the Tribunal that he did so, as the claimant was unsure how to access the information. He gave evidence that the only information he sought was the identity of the buyers. He did so out of curiosity and he never requested the bidder results. He was not aware that such a report existed. He did not gain any financial advantage from accessing the information and (RL) previously provided him with guide prices towards reserve prices at auctions.

The claimant gave direct evidence that he commenced working for the respondent company in 1978. He worked in all areas of forestry operations. He had an unblemished record and had never been subjected to a disciplinary process prior to the matter in relation to these proceedings. He gave evidence that he was contacted by (ML) on 15 January 2014 and was requested to attend a meeting on the following day. He told the Tribunal that he was not made aware of the nature of the meeting in advance. At the meeting he was told that he was in breach of confidential business. He was suspended on full pay pending the outcome of an investigation. As part of the investigation process he attended a meeting on 29 January 2014 where he was represented by his trade union representative. He was never told of the identity of the complainant, only that it related to (MTG). He co-operated in full with the investigation and admitted that he had provided information to (J) from (MTG).

He told the Tribunal that (J) had asked him for auction bidder reports and they accessed the information together. He gave evidence that he has limited knowledge of computers and (J) assisted him in accessing the information. He told the Tribunal that he did not realise that it was confidential information and he did not ask (J) why he needed the information. He gave further evidence that he made no financial gain for providing the information. He accepted that he was provided with basic I.T. training by the respondent. He requested further I. T. training but this was not provided. He accepted that during his tenure of employment he was provided with a soft copy of the respondent’s policies and procedures. However he never opened these documents on his computer and he never received a hard copy of the documentation. He never read the procedures.

Following the conclusion of the investigation he attended a disciplinary hearing on 9 April 2014 and was represented by his trade union representative. He was subsequently dismissed from his employment by way of letter dated 11 April 2014. He subsequently appealed this decision, submitting his grounds of appeal. His appeal was unsuccessful and his employment terminated on 11 April 2014. He gave further evidence to the Tribunal of his efforts to mitigate his loss since his dismissal.

Determination

When the respondent was alerted to a suspected disclosure of confidential auction bid information, a detailed investigation was conducted, which identified that on two separate occasions the claimant had breached company policy in disclosing confidential and commercially sensitive information in direct contravention of the provisions of the respondent’s group policies, previously accepted by the claimant.

The claimant was represented throughout the process, and availed of a full and fair disciplinary and appeal procedure. He admitted the breaches, but could not offer any reason for disclosing such confidential information. It was clear that the claimant did not gain in any way whatsoever, either financially or materially, as a result of his actions. It was also clear that his knowledge of Information Technology was very limited.

The Tribunal is of the view that where an employee had an unblemished record of thirty six years service, it was unfortunate that options other than dismissal could not have been explored, but nevertheless the Tribunal is satisfied that the respondent was entitled to dismiss the claimant given the seriousness of the breaches.

In those circumstances, the Tribunal finds that the dismissal was fair and accordingly the claim under the Unfair Dismissals Acts 1977 to 2007 fails and is hereby dismissed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)