ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002438

Complaint for Resolution:

Date of Adjudication Hearing: 23/06/2016

At:                          Workplace Relations Commission, Haddington Road, Dublin 4.    

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

 Background

The Complainant was employed from 3^rd February 2014 until the employment terminated on 11^th January 2016. The Complainant was paid €25,000.00 per annum and worked 40 hours a week. The Complainant was provided with a written statement of her Terms and Conditions of Employment.

The Complainant referred a complaint to the Workplace Relations Commission on 20^th March 2016 alleging the Respondent had unfairly dismissed her on 11^th January 2016.

The dismissal was not disputed.

Summary of Respondent’s Position

The Complainant sent her CV to the Company on 10^th January 2014 applying for the position advertised and also stating that she was in possession of a Valid Stamp 4 Visa. This later transpired not to be the case and in fact the Complainant did not obtain a valid work permit until July 2014 some 5 months after the commencement of her employment. In December 21014 the Complainant had an end of Year appraisal. She was given a pay rise and her targets for 2015 were set.

In April 2015 the Respondent moved to new Premises with open plan offices. She was allowed to choose her desk and she choose a desk away from her Line Manager with her monitor hidden from view from anybody else. In June 2015 the Respondent reviewed its self-built Customer base that was used to keep track of all live and potential accounts, sales leads and meeting notes. It was at this stage that the Complainant revealed to her Employer that she had been inputting all her information separately into a 3^rd Party System (named). This had been done without the Respondent’s permission. A decision was made to export all Company material to a new system (named). The Complainant resisted migrating her data to the new system.

In October 2015 the Complainant was found using the Company computer to source holidays in Malta during her scheduled work time. The discovery came to light as the Complainant had mistakenly pasted the holiday chat into the Company chat room. The Complainant’s Line Manager spoke to the Complainant and informed her that Company time, property and resources were not to be used for personal purposes. She was informed that the Company had the ability to track all computer usage. In November 2015 all employees had been informed via email that Company time was not to be used for personal matters.

On 10^th December 2015, the day of the Company Christmas Dinner, the Complainant phoned in sick. However it transpired that at 15.11 on the same day the Complainant had logged into the Company system and exported the entire contents of the Company’s system, encompassing the universe of the Company’s clients and sales prospects, a database of 6800 people and 1100 companies.

The Complainant returned to work on 4^th January 2016 after a two week break over Christmas. Later that week her computer was audited and it became clear that she had spent the week since her return seeking employment mainly in London and directing a third party to write her CV. The Complainant was suspended on full pay on 8^th January 2016 for abuse of Company time as a result of the audit. The Complainant offered no explanation as to why she was seeking alternative employment and using Company time to do so and to write her CV She was immediately blocked from accessing the Company system.

Following a further investigation it was clear the Complainant was seeking to exploit Company Intellectual Property for personal gain while seeking alternative employment – evidence provided.

The Complainant was summarily dismissed for gross misconduct with immediate effect on 11^th January 2015. The Complainant was provided with a right of appeal. The Complaint appealed on 14^th January 2016. The outcome was to uphold the dismissal. The Company are currently taking legal advice to pursue the Complainant and to prevent her seeking to exploit the Company database as she has continued to seek to use the intellectual property of the Company for personal gain post her dismissal – evidence provided.

Summary of Complainant’s Position.

The Complainant confirmed at the Hearing that she did not have the appropriate visa/work permit to work in Ireland when she commenced employment in February 2014 and that she did not acquire this until July 2014.

The Complainant stated that she had an appraisal with the Respondent on 17^th December 2015 and they were satisfied with her performance. The Complainant went on annual leave and returned to work on 4^th January 2016. She was informed by her Line Manager to vacate the Premises and informed that she was suspended on full pay with immediate effect. She was informed that the Company firewall had seen that she was sending personal files in company time. She was informed an investigation would be conducted. She received a letter dated 11^th January 2016 terminating her employment. She was informed that the dismissal was to take immediate effect for Gross Misconduct in misuse of Company time, and resources and an intention to exploit Company Intellectual Property for personal gain.

The Complainant appealed this decision on the basis that she had not received any verbal or written warning prior to her termination and that the decision to dismiss was disproportionate. She was informed that her appeal was not successful.

She lodged her complaint with the WRC.

The Complainant confirmed that she did have her own personal gmail account on her company computer.

The Complainant confirmed that she had commenced employment in the UK on 15^th March 2016 and she is paid €25,000 Sterling and Commission.

Findings

On the basis of the evidence and written submission by the Respondent I find as follows.

1. The Complainant was provided with a written statement of her Terms and Conditions of Employment including the Grievance and Disciplinary Procedures of the Company.

2. The Respondent provided evidence to the Hearing in relation to the transfer of Company Clients, Files and Database to the Complainant’s Personal account.

3. The Complainant did not deny she had transferred Company Data to her personal account.

4. The Complainant did not offer any evidence at the Hearing to counter the evidence from the Respondent that she had sought to use Company Intellectual Property before and after her dismissal for personal gain.

5. Both Parties confirmed at the Hearing that the Complainant had been summarily dismissed without notice on 11^th January 2016.

Decision: CA- 00003265

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Section 6 (4) of the Act provides as follows: Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following – (b) the conduct of the employee.

And Section 6 (6) of the Act provides that it is for the employer to show that the dismissal results wholly or mainly from the matter specified in subsection 4 (b) of this section.

I find that the Respondent has shown that the dismissal of the Complaint resulted wholly from the conduct of the employee.

In accordance with Section 8 of the Act I declare the complaint of unfair dismissal is not well founded.

Rosaleen Glackin

Adjudication Officer

Date: 19^th April 2017