ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001930
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00002654-001 | 16/02/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00002830-001 | 16/02/2016 |
Date of Adjudication Hearing: 08/02/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Respondent had already indicated, prior to the hearing, that they were objecting to a Recommendation by an Adjudicator under the Industrial Relations Act, 1969.
At the hearing on the 8th February 2017 I indicated that I would decide firstly on the Protected Disclosure issue and depending on this decision would decide whether or not to reconvene the hearing to consider additional evidence relating to the strict Unfair Dismissal issue.
This case is very closely linked to ADJ -00001933 which was heard, by agreement, in conjunction with this case.
Attendance at Hearing:
By | Complainant | Respondent |
Parties | A Senior Platform Developer | A Software Service Provider |
1: Complainant’s Submission and Presentation:
An issue arose on the 21st of August. I made a protected disclosure regarding this. I was dismissed on the 27th of August. |
I was headhunted by Respondent Firm from a permanent role in which I had been employed for 4 years. I started employment with Respondent on 27th July 2015. After being there exactly 1 month and having received nothing but positive feedback, on the 27th of August 2015 I was sent an email by the CEO inviting me to meet with him later that day for a “catch up”. The CEO brought me to the boardroom ten minutes before the allotted time as he said that his earlier meeting with my superior, Mr. X, had finished early. At this meeting I was informed immediately that I was being dismissed with immediate effect and was handed a preprinted, signed letter in these terms. I was told the decision had been made and would not be changed. There was no offer of any appeal. The termination of my employment was presented to me as a fait accompli. I was not given any opportunity to state my case at the meeting. I had not been given any warning about the seriousness of the situation. I had been given no indication, at any time, that my employment was in jeopardy. I had not known that the meeting might result in my dismissal. I was not given any facility to have representation. No concrete reasons for my dismissal were given to me – initially the CEO told me that my skills were lacking, but when I questioned that fact, as I had completed every task given, I was simply told repeatedly that I was “not a good fit”. I was not afforded an opportunity to respond to any allegations or accusations, if any existed, as none were presented to me. The uninterrupted meeting ended with me being escorted from the premises by the CFO. There was no procedural fairness or natural justice applied to my dismissal. I was not afforded fair procedure in accordance with any code of practice including the Code of Practice on Grievance and Disciplinary Procedures S.I. No. 146 of 2000. There had been no warnings of any kind, either verbal or written, no accusations, no investigations, no interviews, no appeals. I was denied natural justice. |
2: Respondent’s Submission and Presentation:
The Complainant was dismissed for valid reasons (poor team/ interpersonal skills & lacking a good sense of judgement) within his 6 month probation period.
The Respondent rebutted absolutely any suggestion that the Complainant had made a “Protected Disclosure” that would have the effect of bringing him within the ambit of the Unfair Dismissals Act, 1977.
The Complainants dismissal was already in train and the “Protected Disclosure” –which is absolutely denied, had no bearing on the case.
3: Legislation involved and requirements of legislation
Unfair Dismissal Act, 1977 & SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures.
Protected Disclosures Act, 2014.
4: Arguments and Consideration of Evidence:
4:1 This case hinges on whether or not a “Protected Disclosure” took place. Detailed evidence both oral and written was provided at the hearing and was the subject of supplemental correspondence from the Complainant. This correspondence was copied for comment to the Respondent. The supplementary correspondence was essentially copies of emails to a Government Department seeking clarification on the exact intention of the Legislature as regards Section 5 of the Protected Disclosures Act, 2014.
I took the view that these matters had already been adequately addressed at the oral hearing.
In addition all evidence given at the hearing was subject to considerable cross examination by the parties.
4:2 Section 5 of the Protected Disclosures Act, 2004 is quoted below.
Protected Disclosures
Protected disclosures
- (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18 , a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 8 , 9 or 10 .
(2) For the purposes of this Act information is “relevant information” if—
(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and
(b) it came to the attention of the worker in connection with the worker’s employment.
(3) The following matters are relevant wrongdoings for the purposes of this Act—
(a) that an offence has been, is being or is likely to be committed,
(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,
(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,
(d) that the health or safety of any individual has been, is being or is likely to be endangered,
(e) that the environment has been, is being or is likely to be damaged,
(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,
(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or
(h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed.
(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.
(5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.
(6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice.
(7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.
(8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.
4:3 The Pertinent Facts
4:3(1) Protected Disclosure
The Complainant was employed as the “Senior Platform Developer” of Respondent Media.
In his oral evidence and evidence corroborated by the Respondent it was clear that this was a very senior IT role within the organisation.
The discovery of shortcomings/ possible security breaches in the Email/Website logs of the Respondent’s IT were matters of grave and serious concern.
However to adopt the “Reasonableness Test” these were matters clearly within the job remit of the Complainant. Sub-section 5 as quoted above refers.
5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer.
From the evidence it was clear that the Complainant’s job role clearly encompassed matters of this nature. He was clearly not responsible for the commission of the possible security breach which it appeared predated his arrival.
The Respondent employer, it appears, was completely unaware of the possible security breaches and with the assistance of the Complainant and the Complainant’s colleague (ref ADJ 1933) addressed the matter speedily. The Office of the Data Protection Commissioner was notified and from evidence presented was satisfied (following oral evidence from the Respondent and exchanges of correspondence / copies given in evidence) that the matter did not need further action on the Commissioner’s behalf.
In the light of all these matters to suggest that as “Senior Platform Developer”” his bringing of these matters to the attention of his Superior and on wards via his Superior to the CEO was a “Protected Disclosure” is not supported by `the evidence. This matter was gone into in detail at the hearing and was the subject of considerable cross examination by the parties.
Accordingly I find that a “Protected Disclosure” as defined by Section 5 of the Protected Disclosure Act, 2004 quoted above did not take place.
Accordingly the protections of the Unfair Dismissal Act, 1977 as set out in Section 6(2)(ba) of that Act do not apply to the Complainant. In plain English the Complainant does not have the required employment service (12 months) to qualify under the Act.
Accordingly the claim has to be dismissed.
4:4 The actual Dismissal / Questions of a need to reconvene the hearing
As the claim is deemed to be outside of the protections of the Unfair Dismissals Act,1977 and the Industrial Relations Act,1969 element of the claim ,as appropriate for an Adjudication Officer recommendation, has been objected to by the Respondent I can make no further comment.
On this basis I do not propose to reconvene the Hearing.
5: Decision:
Act | Complaint/Dispute Reference No. | Summary Decision. (Ref Section 4 of this ADJ above) |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00002654-001 | Protected Disclosure not found. Claimant has less than 12 months service. Accordingly Claim dismissed. |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00002830-001 | Objection lodged by Respondent. Claim cannot proceed at Adjudication Officer stage. |
Dated: 31 May 2017