ADJ-00007002

Complainant

Respondent

Anonymised Parties

A Social care worker

A social care provider

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-00009527-001

03/02/2017

The complainant was employed by the Respondent as a Social Care Worker. He was employed from 12^th December 2006. His employment ceased on 4^th August 2016 when he was dismissed from his employment for gross misconduct. His gross annual salary as submitted by the complainant’s representative was €48,290. The complainant is claiming that his dismissal was unfair and is seeking compensation in that regard.

The Respondent’s position is that the worker was dismissed for gross misconduct in line with its disciplinary procedures. The Respondent contends that at the material time, the claimant was involved in an unrelated disciplinary process. As part of the claimant’s submission in that process, the issue of emails being sent from the complainant’s work email address to other email addresses and to unknown and unapproved recipients arose.

The Respondent contends that this prompted a wider investigation relating to emails sent from the complainant’s work email address. It was subsequently confirmed that the contents of 26 emails sent to external email addresses were in breach of the organisation’s Data Protection and Confidentiality policies in so far as private and personal information was included in the emails relating to service users and staff members of the Respondent.

An investigation meeting into these emails took place on 21^st June 2016. The outcome of this investigation was that a disciplinary process should commence. A disciplinary meeting took place on 8^th July 2016 in relation to the alleged breach of the policies. The complainant was invited to attend a meeting on 4^th August 2016 to discuss the outcome of the disciplinary process and was dismissed with immediate effect at that meeting.

The Respondent contends that the claimant was dismissed for breaching data protection and confidentiality policies which could have had a serious and detrimental effect on the provision of services. The Respondent does not accept the claimant’s contention that he sent the emails to his personal email address to assist with time management issues and as a means to remain on top of things with his work. The Respondent contends that at no time was it an agreed action point of the supervision process that the complainant could send emails to his personal email address for the reasons stated.

The Respondent’s position is that the actions of the complainant were a serious breach of confidence, abuse/misuse of a computer, gross negligence, unprofessional conduct and activities that would damage the organisation’s reputation. As a result the Respondent contends that the dismissal for gross misconduct was justified and reasonable in the circumstances.

The Respondent confirmed that the dismissal was appealed on 4^thAugust 2016 and an appeal hearing took place on 31^st August 2016. On the basis of the severity of the incidents, the confidentiality issues around the service users and staff and the risk of reputational damage to the service, the dismissal was upheld by the appeals panel.

In support of its position, the Respondent referred to a previous decision of an Adjudication Officer (ADJ0000-4039). In that case the complainant had downloaded commercially sensitive and personal information from her employer’s IT system and copied it to her personal email account. The Adjudication Officer upheld the decision to dismiss on the basis that that the material had the potential to cause serious damage to the Respondent’s business and commercial reputation.

The complainant’s position is that his dismissal from the Respondent was unfair both procedurally and substantively. The complainant confirmed that at the material time there was a separate disciplinary process that was at the appeal stage. It was the documents given to the appeals officer in relation to that process that gave rise to the second investigation and subsequent disciplinary process. The complainant contends that no identifying documents were sent to the Union in respect of the initial appeal and it was his understanding that documents sent to the appeals officer would be subject to the rules of confidentiality applying to the Respondent.

In relation to the second issue, the complainant contends that he was not provided with the emails at the investigation meeting that was held on 21^St June 2016 but did receive copies in advance of the disciplinary meeting that was held on 8^th July 2016. He contends that this added confusion in relation to which process and what emails were being discussed. The complainant’s position in relation to the emails that he sent to his personal email account was that it was a means by which he could prepare for his next shift at work in circumstances where he was experiencing time management issues. He contends that the emails were never printed and were deleted shortly after being read. At the time the complainant contends that he did not realise that there were issues in relation to confidentiality and data protection breaches but on reflection accepted that he should not have sent emails to external email addresses. Given his long standing service in the Respondent organisation and his bona fides in relation to the situation the complainant believes that a lesser sanction than dismissal was warranted.

The complainant appealed his dismissal on the basis that, a) his actions did not support a finding of gross misconduct, b) his alleged failure to put forward risk management strategies to avoid a recurrence of the issues was something he was prepared to discuss with the employer going forward and c) in the circumstances the dismissal was excessive and unfair when a more appropriate sanction would be a warning and a period of supervision in addition to the required training support.

The complainant contends that the dismissal has had a serious effect on his health and his personal circumstances. He claims to have been unable to look for any employment since his dismissal due to a deterioration of his health and the lack of income has resulted in severe difficulties in securing permanent accommodation. The complainant is seeking compensation in relation to the complaint.

The issues leading up to the dismissal relate to a previous disciplinary process appeal concerning the complainant. As part of documents submitted by the complainant in that process the issue surrounding work related emails being sent to other email addresses arose which led to a wider investigation of the complainant’s emails. It was subsequently discovered that emails, which included minutes of staff meetings, reports on service users as well as their private and personal information as well as information relating to staff members had been sent by the complainant to his two personal email addresses. Emails were also sent to the personal email address of a fellow social care worker employed by the Respondent. The subsequent investigation and disciplinary processes resulted in the dismissal of the complainant for gross misconduct. The dismissal was appealed but was upheld.

In relation to the wider investigation of the complainant’s emails I find that conducting a disciplinary process was appropriate and necessary in the circumstances. Given the sensitive nature of the services that the Respondent provides and the vulnerable nature of the service users, it is essential that Data Protection and Confidentiality Policies be strictly adhered to. The Respondent has a duty of care to its clients and the investigation it carried out highlighted approximately 26 breaches of these policies by the complainant who was an experienced social care worker.

The complainant stated that he sent the information to his personal email for the purposes of keeping on top of his work in circumstances where time management was an issue. The complainant accepted that initially he didn’t link the sending of the emails to a breach of policy but on reflection he accepted that he had breached policy. He said he was willing to engage with management on strategies to prevent a reoccurrence of the issues in the future. He also stated that there was nothing malicious in his actions and he acted in good faith at all times.

The Respondent contends that there were other options in place that the worker could utilise when time management was an issue and that at no time was it an agreed action point on time management to send private and sensitive work related documents to unsecure personal email addresses. This, the Respondent contends is a serious breach of data protection and confidentiality policy.

I find that the complainant was aware that he should not have sent work related emails containing private and sensitive information to external personal email addresses. The penultimate paragraph of the complainant’s signed contract states that an employee “may not remove any documents or things belonging to the Company or which contain any confidential information from the Company’s premises at any time without authorisation”. Although this does not relate specifically to emails, I find that a trained and experienced social care worker would be well aware of the importance of data protection and confidentiality.

Both parties confirmed that the worker was aware of these policies. The Respondent confirmed that the policies had not been given to the complainant but were available on the Infonet and in the staff handbook which is also available on request. With regard to Data Protection issues, the Respondent confirmed that a pop up reminder appeared on each computer screen at the log in stage requiring the user to click “I accept” before progressing.

In regard to the availability of such policies, I find that it is more appropriate to give staff copies of such policies and have them confirm in writing that they have read and understood them. I find that making them available is insufficient given the importance of the policies.

I accept the Respondent’s position that it acted in a fair and transparent manner throughout and that it considered all the possible options in both the disciplinary process and at the appeal of the dismissal.

The Law

The Unfair Dismissals Acts, 1977-2015 states as follows:

S 6(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The Respondent, in dismissing the complainant for gross misconduct, relied on Section 6(4)(b) of the Unfair Dismissal Acts, 1977-2015 which states as follows:

S 6(4) 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

I find that both the disciplinary and appeals processes were carried out in a fair and transparent manner. The Respondent confirmed at the Adjudication hearing that it had considered a lesser sanction than dismissal but given the serious nature of what had occurred and the serious risk that it could happen again, it ultimately decided that the appropriate sanction was dismissal.

I find that the complainant acknowledged his wrongdoings and accepted a disciplinary sanction was appropriate. His position, however, is that the sanction of dismissal was excessive.

Having considered the submissions of both parties and all of the points raised at the hearing of this matter, I find that the complainant was not unfairly dismissed and the complaint is not well founded.

Breaches of Data protection policy, Breaches of Confidentiality policy,