CORRECTION ORDER ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT

This Order corrects the original decision issued on the 8^th May 2017 and should be read in conjunction with that Decision

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002052

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-00002795-001	23/02/2016

Date of Adjudication Hearing: 30/11/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance 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).

Complainant’s Submission and Presentation:

After assessment by my Employer I was advised at a meeting on the 1st December 2015 that my position was been made Redundant and a Redundancy package was discussed. I was expecting details of the package in the following days but they did not materialise. On the 4th December I received a letter from the Employer that an “investigation has now commenced into a serious allegation that confidential and valuable information has been deleted from my computer and that the redundancy was now suspended”. They did not state the nature of this serious allegation, and in my reply of the 7th of December I identified the event that I thought to be relevant and offer my assistance to correct the situation. The event involved the deletion of data from my computer. All data was readily recoverable and was recovered by my Employer who did not need my assistance. Notwithstanding the recovery of deleted data, my Employer continued the Disciplinary process and decided that I was to be dismissed because my actions were deemed to constitute Gross Misconduct. There was no payment of Redundancy. Even though I admitted on the 7th of December 2015 to deleting the data, my Employer went ahead with an “investigative meeting” on 11th December where I was given a copy Company handbook. This was the first time that I received this document. The document outlines possible circumstances of Gross Misconduct, none of which categorise my act as Gross Misconduct. As I did not have the Handbook I could not have known that my act could warrant instant dismissal. My employer has interpreted the circumstances and constructed an alleged act of Gross Misconduct to suit themselves and avoid the payment of my Redundancy entitlement.

Summary of Respondent’s Submission and Presentation:

In late 2015 the Respondent organisation had reviewed its sales force and decided to rationalise its sales force from two Sales Representatives to one.

The Complainant, having shorter service, was invited to a meeting on the 27^th November, a Friday, and was informed that he was “At Risk” of Redundancy. He was to take Monday off and return for a meeting on Tuesday 1^st December. At this Tuesday meeting, following discussion, it was confirmed that the Respondent did not have any alternative positions for the Complainant and that he was to be declared Redundant. Figures were to be produced by the Financial Controller and forwarded to the Complainant

On the 2^nd of December the Respondent became aware that a significant amount of sensitive Company sales data, leads etc. that had been stored on the Computer system had been deleted.

On investigation it was clear that the material had been deleted by the Complainant.

The Respondent wrote to the Complaint on the 4^th December initiating an Investigative process. The Redundancy process was put on hold.

The Complainant wrote to the Respondent on the 7^th December admitting that he had acted rashly and incorrectly and admitted deleting the data.

The Investigative meeting took place on the 11^th December 2016. The Manger , Mr. A, who held the Investigative meeting then referred the matter to Manager Mr.B, to hold a Disciplinary meeting. This took place on the 16^th December 2016. At this meeting the Complaint did not offer any other reasons or evidence in his own defence save that he had been very annoyed following the “At risk” meeting on the 27^th November.

After some consideration Mr. B informed the Complainant that he was being dismissed on the grounds of Gross Misconduct.

An Appeal was offered and accepted. This took place on the 13^th January and was conducted by a Director of the Company. The appeal was not upheld.

All correspondence was presented in evidence – all at times the Complaint was written to in advance of meetings, advised of all his rights and the agenda indicated. The question of his employment being in jeopardy as a possible consequence of and arising from the Investigation was advised by letter on invitation dated the 9^th December to the first Investigative meeting. Further correspondence ( From Complainant to the Respondent dated the 15^th December clearly show the understanding that the question od dismissal was on the agenda the meeting of the 16^th December) ) prior to the meeting of the 16^th December 2016 at the meeting of the 16^th December was advised to him well in advance. Letters also indicate that the Right of Representation was clearly advised at all times.

In summary the Respondent maintained that the Complaint had by his actions in deleting the Computer data committed Gross Misconduct and his dismissal was warranted and fair. As the Complaint was dismissed no Redundancy was paid.

Decision:

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.

Issues for Decision:

Was there an Unfair Dismissal here? Was the effective sanction imposed, the withholding of the Redundancy payment justified

Legislation involved and requirements of legislation:

Unfair Dismissals Act, 1977 and S.I. No 146 of 2000 - Code of Practice on Grievance and Disciplinary Procedures.

Decision

It is accepted law that all cases run on their own facts.

In Bunyan v United Dominions Trust [1982] ILRM404 quoted by Dr. Mary Redmond in Dismissal Law in Ireland - Tottel Publishing 2007 the EAT stated as follows

“The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved”. The Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and or/concluded.”

Looking first at the Line of Business argument -the Respondent is a leading Company in the Security Industry. The Complaint had been clearly inducted into the Company and was aware of all procedures – confirmed by oral evidence.

The Complainant deleted the material over the weekend of the 27^th to the 29^th November 2015. His defence of a “Rush of Blood to the head” has to be questioned as it was only when the Respondent Employer became aware of the data loss later in the week (circa 2^nd December) that the Complainant made an admission.

The Data was eventually recovered by the IT Systems Company of the Respondent and no apparent lasting Commercial damage was caused to the business. The Computer evidence presented clearly shows that the deleted Data would be stored for 30 days in the Trash file of the Computer system. The Data in itself was a listing of names and address of Customers and potential Customers.

The possible serious Reputational Damage to the Respondent, should the Customers become aware of the issue of their details being handled in this manner was mentioned in oral evidence by the Respondent.

The Handbook of the Respondent at Page 16 Examples of Gross Misconduct has the Clause “divulging or misusing conferential information” and “Serious breach of company rules ,policies and procedures “ . It was clear that the Complaint was aware of the Handbook.

The Record of the Appeal Hearing held on the 13^th January 2016 was comprehensive. Great detail was gone into by the Dismissal Appeal hearing Director. He was present at the Adjudication Hearing and gave oral evidence to the Adjudicator. Due consideration and time was given to the making of the Appeal decision.

Taking all evidence and the open admission by the Complaint of the rashness of his actions a serious breach of the Computer System by the Complainant could not be treated lightly by any “reasonable employer” in the Security Industry. Data held by a Security Company of the established reputation of the Respondent is expected to be held securely.

The Data in question was a list of names and address of business contacts –it did not contain as far as the evidence pointed any material of a very sensitive nature. It was easily recovered but whether or not the Complainant knew this IT fact in advance was unclear. It was also not in his favour that he did not make any admissions until the Data breach was discovered later in the week.

There can be no doubt that any “Reasonable” employer in the Security Industry would find the actions qualified as “Gross Misconduct.” However the Company Handbook allows for “Other Penalties” in substitution to Dismissal to be imposed.

The Penalty imposed by the Respondent was in effect the loss of the Complainant’s’ Redundancy and Notice Payments. (Approximately €9,000) This was a very severe penalty to impose particularly as the potential Redundancy had been clearly communicated to the Employee at the time of the Dismissal.

Accordingly, having reviewed the evidence and carefully considered the severity of the Penalty imposed I find the Dismissal to be Unfair.

In Redress I order that Compensation of three months nett pay (€2,420 by 3 =€ 7,260) but reduced by a factor of 50% (due to the actions of the employee in this case) giving a payment of €3,630 be made to the Complainant. This payment to also include any Notice payments that may have arisen.

Reengagement or Reinstatement, following consideration, are not appropriate in this case.

Dated: 8 May, 2017