Complainant

Respondent

Anonymised Parties

Complainant

(Hotel industry)

Representatives

Colleen Cleary    (Solicitor)    

James Doran (BL)                       Emmet Butler   (solicitors)

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-00005528-001

27/06/2016

Complaint    seeking adjudication by the Workplace Relations Commission under Section 11    of the Minimum Notice & Terms of Employment Act, 1973

CA-00005528-002

27/06/2016

The Complainant was employed as a Night Manager with the   Respondent from April 2007 until the termination of his employer on the 25^th   May 2016. He alleges that he was unfairly dismissed by the Respondent on the   grounds of Gross Misconduct. He filed   a complaint with the WRC 27^th June 2016.

Complaint    No. 1 taken under Section 8 of the Unfair Dismissals Act, 1977    (CA-00005528-001)

The following is a summary of the Respondent’s submission:  

On 12^th March 2016, the Bar Manager said to the   General Manager that FR in Accounts had advised him that the Complainant had   a USB key with company information on it.   The General Manager and HR Manager decided to raise this with the   Complainant and did so after his shift at 8am on 19^th April 2016. The General Manager explained to the   Complainant that she had been made aware that he had a memory stick that   contained company data. The   Complainant confirmed that he did and handed over the memory stick. However, the Complainant alleged that there   was nothing on the memory stick. The   General Manager in the presence of the Complainant inserted the memory stick   into the laptop and checked two folders in which there was nothing. However, the General Manager opened a third   folder and there appeared to be information in it including a number of   subfolders and Opera PDF reports. The   Opera system is a popular reservations system used in hotels worldwide. It contains all the tools required for   reservations, checking guests in and out, assigning rooms and managing room   inventory. It provides real time   immediate access to any level of availability information for any day. The accounts receivable function provides a   clear financial picture of the entire operations. The profile function captures demographic,   statistical and historical data for individual guests, companys, travel   agencies and groups.

The General Manager explained that she would have to   review the memory stick and would be in touch with him. On a further review of the documentation   contained on the memory stick it appeared that there was a substantial amount   of company and customer information retained on it. The Complainant was suspended on full pay   later that day due to a potential serious breach of the Company Email and   Security Policy and procedures by way of a letter on 19^th April in   which he was put on notice that the allegation if proven, could amount to gross   misconduct and result in his dismissal.   The Complainant was suspended on full pay pending an investigation.

As part of this investigation, the Respondent IT providers   undertook a review of the Complainant’s company email. This indicated that emails had been sent to   the Complainant’s company’s email address to his personal Gmail account,   which appeared to contain company information.

The Respondent wrote to the Complainant on 29^th   April 2016 inviting him to attend a disciplinary hearing to discuss a breach   of the Internet, Email and Security Policy and a breach of company   procedures. They provided two   documents:

•   An overview of company financial and customer   information held on the Complainant’s memory stick;
•   Records of the company emails forwarded from   the Complainant’s work email to his Gmail account containing company   information.

Investigation meetings were held on the 6^th, 10^th   and 17^th May with the General Manager and HR with the Complainant   and his representative. On 19^th   May a disciplinary hearing was held and chaired by the General Manager, with   the HR Manager in attendance, which the Complainant attended with a   representative.

Following the disciplinary hearing, the Respondent made   the determination that the Complainant had breached the IT policy and   confidentiality and privacy. They confirmed this in a letter to him dated 21^st   May 2016, which they provided to him at the meeting on 25^th May   2016. The Respondent held that they   did not believe that the sending of the information including function sheets   from his work email to his Gmail account was for business use as the rosters   had previously been complied and issued. The Respondent was entitled to treat   the forwarding of the function sheets as a serious breach of the Internet,   Email and Security Policy.

In relation to the retention of commercially sensitive   financial information and personal data regarding guests retained on the USB   key, the Respondent held that having shortcuts on a memory stick could lead   to a serious breach in the Respondents guest privacy. It was also held that to retain the data in   the manner that he did was a serious breach of the data storage provision   contained in the Internet, Email and Security Policy. The Respondent held that there was a   serious breach of confidence, breach of company policy and procedures and   using company property for personal reasons without authorisation that went   to the heart of the relationship with the Night Manager to the extent it   constituted gross misconduct in accordance with the disciplinary procedures   and that it was necessary as provided for in the procedure to move to   terminate the Complainant for gross misconduct with effect from 25^th   May 2016. The Respondent therefore   summarily dismissed the Complainant and he was not entitled to notice.

The Complainant was offered the right to appeal to the MD,   who is the most senior personnel in the Company and who had not been involved   in the process to date. The   Complainant submitted a written letter of appeal on 30^th May 2016   alleging that he did not know that he was doing anything wrong and that staff   receive mails to their own personal email address. The Complainant did not deal with the issue   of the documents retained on this USB key in this letter. The Complainant was asked to attend an   appeal hearing on the 7^th June 2016. At the hearing, he handed the MD an undated   letter, which it appeared his solicitor had drafted. It was alleged in the letter that no   documents or data were stored on the memory stick, which was factually   incorrect. The Complainant attended the appeal hearing together with his   witness and was given a full opportunity to state his case. Following this meeting, the MD met with the   GM and HR and after taking into consideration all the facts, including the   Complainant’s length of service, the MD made the decision to uphold the   decision to dismiss the Complainant from employment for gross   misconduct. The Appeal Chairperson   found that there was a serious breach by the Complainant in relation to   company information and that she was alarmed at the fact that there was such   a laissez faire attitude by him in the handling of the information considering   his seniority. The MD considered that the Complainant had put the company in   jeopardy by his handling and distribution of the confidential information in   relation to the business and guests and upheld the decision to dismiss him on   the grounds of gross misconduct.

Legal Submissions

Section 6(1) of the 1977 Act states:

“subject to the   provision of this section, the dismissal of the employee shall be deemed for   the purpose of this Act to be an unfair dismissal unless having regard to all   the circumstances there were substantial grounds justifying the dismissal”.

Section 6(4) of the 1977 Act   states:

“without prejudice to the generality of subsection 1 of this section,   a dismissal of an employee shall be deemed, for the purpose of this Act, not   to be an unfair dismissal if it results wholly or mainly from one or more of   the following:

a)        the capability,   competence or qualifications of the employee performing work of a kind for   which he was employed by the employer to do;

b)        the   conduct of the employee;

c)         the   redundancy of the employee;

d)        The   employee was unable to work or continue to work in the position which he held   without contravention of a duty or restriction imposed under any statue or   instrument made under statute”

Section 6(7) of the 1977 Act provides:

“without prejudice   to the generality of subsection 1 of this section, in determining whether a   dismissal is an unfair dismissal, regard may be had, if the Rights   Commissioner, the Tribunal or the Circuit Court or as the case may be   considers it appropriate to do so –

a)        To the reasonableness or otherwise to the   conduct (whether by act or omission) of the employer in relation to the   dismissal and

b)        To the extent (if any) of the compliance   or failure to comply with the employer in relation to the employee, in relation   to the procedures referred to in section 14(1) of this Act, with provisions   of any Code of Practice referred to.”

Therefore subsection 1 contains a general overriding   proposition that the dismissal of the employee is deemed to be unfair unless,   having regard to all the circumstances, there were substantial grounds   justifying the dismissal. Subsection 6 provides that the burden is on the   employer showing that there are substantial grounds for dismissal. Subsection   7 reinforces the concept of procedural fairness which the Tribunal has   developed and which requires the employer to establish not only that they had   substantial grounds to find the dismissal but that it followed fair   procedure.

It may be noted in the case of Connaught Gold -v- Connor   Rafter UD 48/2014, it was held that “the   role of the Tribunal in unfair dismissal cases is not to establish an   objective standard but to ask that the decision to dismiss comes within the   band of reasonable responses that the employer might take having regard to the   particular circumstance of the case”. The test of reasonableness is   applied in deciding whether the dismissal of the employee was unfair, which   includes the nature and extend of the inquiry carried out by the employer   prior to a decision to dismiss and, the conclusion arrived by the employer   based on the information resulting from any such inquiry.

In Hennessy -v Read &   Write Shop UK 192/1978 in deciding whether the dismissal of the Complainant   was unfair the court applied a test of reasonableness to:

1. “the nature and extent of the inquiry   carried out by the Respondent prior to the decision to dismiss the Claimant   and to the conclusion arrived at the Respondent that, on the basis of the   information resulting from such enquiry the claimant should be dismissed.
2. This requires the Tribunal to consider   whether the employee was made aware of all the allegations and complaints   that formed the basis of the proposed dismissal, whether the employee had   adequate opportunity to deny allegations or explain the circumstances before   the dismissal was taken, whether the employer believed that the employee had   conducted himself or herself as alleged, whether the employer has reasonable   grounds to sustain the belief and if so, whether the penalty of dismissal was   proportionate to the alleged conduct.”

In Patrick O’Malley -v- An Post UK 1285/2014 the Claimant   worked for An Post since 1980. He was   dismissed for misconduct in 2014. An   audit was carried out in the Post Office that the claimant worked in and   showed up some “accounting irregularities” on behalf of the claimant. There was no financial gain for the   claimant but his explanation for this was considered unacceptable and he was   dismissed as the employer no longer had trust and confidence in him. The claimant brought a claim to the   Tribunal on the grounds of procedural fairness, the characterisation of gross   misconduct and the proportionality of the sanction. The Tribunal held that in considering the   substantive issue as to whether the conduct amounts to gross misconduct, it   is not the role of the Tribunal to supplant the role of the employer but to   consider whether the employer acted reasonably in deciding to dismiss the   claimant.

In the present case, the Complainant did not offer a   satisfactory explanation for either of the two specific incidents identified   by the employer. The issues were such   that they went to the heart of the relationship of trust and confidence. The Tribunal found that it was reasonable   to conclude that the claimant’s conduct amounted to gross misconduct. This being the case the appropriate   sanction was dismissal.

In AIB -v- Brian Purcell   (Appeal) (2012) 23 ELR 189 over a period of two years, the claimant, on   several occasions, accessed the bank accounts of several colleagues,   including his superiors. It was not   done for any purpose connected with his work or with consent, but to check   what colleagues had received a bonus and the amount of the bonus. The Respondent investigated and   disciplinary process and dismissed the claimant for gross misconduct. The Circuit Court held the following:

What constitute misconduct must be decided on the   circumstances of the particular case.   The list of conduct in disciplinary policies is not exhaustive but   merely a guideline. The fact that the conduct not complained of was not   included in the list does not assist the claimant with his claim;

Fair procedures were followed;

It is not appropriate for the EAT or the Circuit   Court to ask whether it would dismiss in the circumstance or substitute its   own view for the employer’s view. The   appropriate approach is to ask was it reasonably open to the employer to make   the decision it made; and

The decision to dismiss was a reasonable one and   the dismissal fair.

It was submitted that the Respondent had substantial   grounds to terminate the Complainant for gross misconduct. The Complainant signed a written contract   of employment on 27^th March 2007, which confirmed that the rules   contained in the “Staff Handbook are an   integral part of your conditions and contract of employment. Please ensure that you familiarise yourself   with the matters contained therein.”

The Complainant was explicitly on notice of the   requirement for confidentiality in the Employee Handbook, the restrictions in   relation to the storage and circulation of data in the Internet, Email and   Security Policy and the definition of gross misconduct as set out in the   Employee Handbook as follows:

Employee Handbook –   Confidentiality Policy page 39

“You are expected to   treat any information received in a professional and confidential   manner. You must not at any time   during (expect in the course of your duties) disclose confidential   information of the company.   Confidential information includes but is not limited to any financial   information concerning the company.   Any information concerning the operation of processes, any information   about company strategy, business plans, maturing new business opportunities   research and development projects, sales statistics, marketing surveys and   plans, internal communications or documentation, training or educating of   employees in other property other than the hotel or any information proved by   the details concerning any agents for, supplier, or customer of the company.

Under no   circumstances should guest or company information by divulged. This also applied to employee information   for example phone numbers and addresses.”

Employee Handbook –   Disciplinary Procedure - Gross Misconduct page 33

“Gross misconduct   includes conduct of such a serious nature that the company could not tolerate   keeping the employee in employment.   For the mutual protection of the company and its workforce, any   employee found guilty of gross misconduct may be summarily dismissed without   the need for prior written or verbal warning, and without notice or payment   in lieu.

Gross misconduct is   defined by not limited to:

Commitment of any   act which is detrimental to the hotel or which brings the name of the hotel   into disrepute.

Breaches in   confidence involving information relating to the company, employees or its   clients.

Internet and Email   Security Policy page 64

Email

The email system is   to be used for communication directly relating to Company business only.

Monitoring of   computer and email and internet usage

The hotel has the   right to monitor and log any and all aspects of its computer system   including, but not limited to, monitoring internet sites visited by users,   monitoring chat and newsgroups, monitoring file downloads and all   communications sent and received by users.

Data of storage

No external copy of   any database (or part of it) should be stored outside of the property and its   secured network apart from the authorised personnel. This data must be handled transported by   them only and with guaranteed protection from misuse theft or damage always.

Remote access

Remote access   email/email access to the system can only be performed by the authorised VPM   connection…”

The Complainant was dismissed for a serious breach of the   above procures that explicitly formed part of his contract of employment   dated March 2007. He was on notice of   such rules having explicitly acknowledged receipt of the Internet and Email   Security Policy and Employee Handbook and further undertaking to familiarise   himself with same.

In relation to the information retained on the memory   stick, this could be accessed by plugging it into a laptop on the hotel   premises. It was accepted at the early   stages of the investigation by the Respondent that the information on the   memory stick could not be accessed on an external laptop. It was however a   serious concern for the Respondent that the Complainant’s action in retaining   such information amounted to a breach of policy and procures and that company   and personal customer information was being retained by the Complainant in   this manner on an external USB key that could be accessed by unauthorised   personnel especially when the USB key was not secure or kept in a secure   manner.

The Complainant was a Night Manager and there would be no   rational or reason as to way he would retain any of this information in his   role.

The explain, the information included, guest names,   Company names, how many nights the guest swere staying, how many people per   room and how many rooms were sold.   There was also information relating to details of Christmas bookings   with company names together with feedback on events. There was personal data and incident reports   itemising an individual who had been involved in any accident. Again, there would be no requirement as to   why the Complainant would retain such information. The Complainant also retained information   of group rooms listed by rooms including guest names and company names. The Complainant retained historical forecast   reports, occupancy levels and average rates, which again would not be relevant   to his role but were highly commercially sensitive. The Complainant’s role did not include   projections or forecasts. He retained   information that already existing on the Opera system and there would be no   reason to retain it. His explanation   that he was trying to protect the Respondent and keep the information safe   was not credible when appropriate backup systems exist. The Complainant kept information as to   rates, personal data on individuals, which had nothing to do with his   role. The Complainant admitted that he   would leave the USB key in his pigeon hole, which meant information could be   accessed in the hotel by personnel not authorised to do so. The Complainant failed to provide a   coherent or reasonable explanation for the retention of company property on   the USB key.

The Complainant also sent company information from his   work email to a Gmail account concerning entitled “county and western   payments”. The Complainant could not recollect what was in these emails   except to say at some point it related to an email sent by the financial   controller who left in August 2014.   The last country and western event was in November 2015 and it made no   sense why the Complainant was emailing information from his work account to   his Gmail on such matters, or why historically, this would be relevant to his   current role. The Complainant could   not provide a reasonable or coherent explanation in relation to the sending   of this information from his company email to his Gmail.

The Complainant also sent function sheets to his Gmail,   which he alleges were to assist him to put together the rosters. However, the evidence put to him was that   the rosters for the said period for the 3 persons had already been done in   advance of him sending the sheets to his Gmail address. The Complainant’s explanation for   forwarding function sheet to his Gmail account was not credible. In any   event, the Complainant was only responsible for three persons, he was more   than often ahead of time with his rosters and had plenty of time in the night   shift to complete in February 2016, which was not a busy period for the   hotel.

In the circumstance, the misconduct did constitute a   serious breach of the Confidentiality Policy in that he disclosed and caused   to be disclosed by virtue of the memory stick and the forwarding of the   company information to his Gmail not only company information but personal   customer information. The combination of both incidences together with the   fact not only commercially sensitive company but customer information was disclosed   and kept in an inappropriate format meant that the Respondent was entitled to   treat this matter as a serious breach of procedures and the Internet and   Email Policy. At no point, could the   Complainant provide a cogent or rational explanation for his actions despite   the many meetings with the Respondent where he failed to provide an adequate   reason that justified the retention of such commercially sensitive and   personal data on customers and the company.   The Respondent were entitled to treat this matter seriously as they   did when it was patently obvious much of the confidential information was   irrelevant to his role and position and there was not valid reason as to why   he would retain or collate such information meant that the Respondent was   entitled to treat this such misconduct as gross misconduct as is defined in   the procedures in include a breach in confidence.

The case law in this area provides that an Adjudicator is   not required to decide if it would dismiss in the same circumstance or   substitute its own view for the employer’s view. The appropriate approach is to ask was it   reasonably open to the employer to make the decision it did, which it is   submitted it was and that it was within the band of reasonable responses to   the extent the Respondent had substantive grounds to dismiss the Complainant   for this reason. The Respondent’s   decision to dismiss was a reasonable one and the dismissal was fair. The Complainant was made aware of all the   allegation and complaints that formed the basis of the proposed dismissal and   had a fulsome opportunity to deny the allegation or explain the circumstance   before the dismissal was taken and he fully utilised the appeals   process. The Complainant failed to   provide a satisfactory explanation for either of the two specific incidents   identified by the Respondent. The   issues were such that they went to the heart of the relation to trust and   confidence and it was reasonable to conclude that the Complainant’s conduct   amounted to gross misconduct and there was not trust and confidence that   would permit the employment relationship to continue. The sanction of summary dismissal was   proportionate and justified and this claim together with the claim for notice   should be dismissed in their entirety.

Complaint    No. 2 taken under Section 11 of the Minimum Notice & Terms of Employment    Act, 1973 (CA-00005528-002)

The following is a summary of the Respondent’s submission:  

The Complainant is not entitled to his statutory minimum   notice as he was summarily dismissed.

Complaint    No. 1 taken under Section 8 of the Unfair Dismissals Act, 1977    (CA-00005528-001)

The following is a summary of the Complainant’s   submission:

The Complainant was dismissed by letter on the 21^st   May 2016 following a disciplinary hearing on the 19^th May   2016.

Prior to the disciplinary hearing there were 3   investigation meeting on 6^th, 10^th and 17^th   May 2016.

The bases of the dismissal as set out in the letter of 21^st   May were breaches of the company Internet and Email Security,   Confidentiality, Privacy, Copyright and Data Storage policies.

The alleged breaches are described in vague and tentative   terms. They describe what conjecture   risks are and the employer could not attribute any ill-will or malice on the   part of the Complainant or indicate any gain or benefit might or did accrue   to him.

Under the heading “Internet and Email Security” the   employer states:

“The company do not   believe the sending of the company function sheets from your work email   address to a personal Gmail account was for business use only as the rosters   had been previously been sent. The   company believe that forwarding the function sheets was a breach in our   internet and email security policy.”.

Under the heading Confidentiality,   Privacy and Copyright, the employer states:

“While we understand that the information was not posted on Social   Media, the privacy of our guests was put at risk and the company believe that   sending function sheets and having shortcuts on a memory stick could lead to   a breach in our guest’s privacy.”

Under heading Data Storage, the   employer states:

“We have come to the conclusion that your memory stick with shortcuts   to folders, if left unattended could potentially cause misuse of company data   being sent to a Gmail account is also breaching the data storage as it is not   on the secure network and has potential for misuse.

The alleged breaches were found   to amount to Gross Misconduct and warranted dismissal.

Despite the flaws in the initial   investigation disciplinary processes the Complainant made an internal appeal   at which the decision to dismiss was upheld.

Letter of Appeal

The Complainant’s letter of   appeal in part is indicative of the whole process and states:

“RE: Appeal notices against dismissal in line with the disciplinary   procedure please consider this correspondence to constitute a formal appeal   against my dismissal.

I was summarily dismissed, effective from 25^th May 2016,   on grounds of misconduct.

I did not know I was doing anything wrong as staff receive mails from   the hotel to their own personal mail address.

With 9 year service and loyalty I would never put any place of work   or the business at any risk or wrong doing.

I look forward to a response with detail of an appeal hearing where   we can hopefully resolve this situation internally, avoiding the need for any   legal actions.

At the moment I have no possibility of using my email account or   computer at home. This email address   was created only for the purpose of sending this email. I would ask you please to send me any other   correspondence regarding this by post”.

Submissions

It is submitted that during the   period since his appointment the Complainant   has carried out his duties diligently, efficiently and professionally and has   gained the respect and appreciation of management, his colleagues and the   guests and clients of the hotel and spa.

In her letter of 21^st   May 2016, the GM informed the Complainant that following an “intensive investigation” into what   she described as “the incident and   matters surrounding same”. His   dismissal followed a series of investigations meetings held on 6^th,   10^th, and 17^th of May 2016 followed by a subsequent disciplinary   hearing on the 19^th May 2016.   It is submitted that during the investigation and/or disciplinary   process that the allegations of misconduct and conjectured consequences of   same changed the mutated on an ongoing basis.

The bases of the dismissal as set   out in the letter of 21^st May 2016 were alleged breaches of the   company’s Internet and Email Security, Confidentiality, Privacy, Copyright   and Data Storage policies. It is submitted that the alleged breaches and / or   their consequences do not stand up to any proper analysis or objective proof.  

Under the heading “Internet and Email Security” we note   the following:

“The company do not believe the sending of the company function   sheets from your work email address to a personal Gmail account was for   business use only as the rosters had been previously been sent. The company believes that forwarding the   function sheets was a breach in our internet and email security policy.”  It is submitted that the alleged behaviour   did not constitute a breach of the policy.

Under the heading Confidentiality,   Privacy and Copyright, we note the following:

“While we understand that the information was not posted on Social   Media, the privacy of our guests was put at risk and the company believe that   sending function sheets and having shortcuts on a memory stick could lead to   a breach in our guest’s privacy”. It   is submitted that the alleged behaviour did not constitute a breach of the   policy.

Under the heading Data Storage I   note the following:

“We have come to the conclusion that your memory stick with shortcuts   to folders, if left unattended could potentially cause misuse of company data   being sent to a Gmail account is also breaching the data storage as it is not   on the secure network and has potential for misuse. It is submitted that the alleged   behaviour did not constitute a breach of the policy.

Despite the fact that the   Complainant has over the course of four separate detailed meetings given   cogent and comprehensive explanations and the alleged breaches were known to   management it was found that his conduct amounted to Gross Misconduct and   warranted dismissal. It is submitted   that he alleged breaches did not constitute misconduct.

It is submitted that on the basis   of any objective or rational analysis that both the finding of Gross   Misconduct and the decision of dismiss as being unsustainable and bizarre.

It is submitted that the decision   to dismiss our Complainant was totally unrelated to the alleged breaches and   that the investigation and disciplinary process were biased and the result   predetermined.

It is submitted that the   Respondent has failed in its obligations under law and statute to behave as a   reasonable employer in all dealings with employees. This obligation applies particularly in   matters of discipline, especially where the issue of dismissal arises.

It is submitted that as a   substantial employer the Respondent is aware of the provisions of the Unfair   Dismissal Act 1977 and the various amendments to same.

Section 6(1) of the Act states:

“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 for justifying the dismissal ….”

It is submitted that in the case   of the Complainant, there are no grounds substantial or otherwise to justify   dismissal.

It is submitted that underlying   the statutory regime and the associated case law there is an obligation on   the employer to behave reasonably. The   applicable legal test is comprehensively set out in the High Court Judgement   of Mr. Justice Noonan in the Governor and Company of Bank of Ireland -v-   James Reilly (2015) IEHC 241 as follow:

“It is thus clear that the onus is on the employer to establish that   there were substantial grounds justifying the dismissal and that it resulted   wholly or mainly from one of the matters specified s.6(4), which includes the   conduct of the employee or that there were other substantial grounds   justifying the dismissal. Section 6(7)   makes it clear that the court may have regard to the reasonableness in   relation to the employer’s conduct in relation to the dismissal. That is not however to say that the court   or other relevant body may substitute as to whether the dismissal was   reasonable for the employer. The questions rather is whether the decision to   dismiss is within the range of reasonable responses of a reasonable employer   to the conduct concerned – see Royal Bank of Scotland -v- Lindsay   UKEAT/0506/09/DM.

It is submitted that the   judgement of Judge Linnane in Allied Irish Banks -v- Purcell (2012) 23 ELR   189, is relevant. In that judgement   she commented (at p. 4):

“Reference is made to the Decision of the Court of Appeal in British   Leyland UK Ltd. v. Swift (1981) IRLR 91 and the following statement of Lord   Denning MR at page 93:

The correct test is: was it reasonable for the employer to dismiss   him? If no reasonable employer would have dismissed him, then the dismissal   was unfair. But if a reasonable   employer would have dismissed him then the dismissal was fair. It must be remembered that in all these   cases there is a band of reasonableness, within which one employer might   reasonably take one view, and another quite reasonably take a different   view”.

It is submitted that during the   course of the investigation and disciplinary process that the following facts   were established and not disputed by the Respondent:

1.   No documents or data could be opened on the   memory stick.
2.   The Complainant’s use of the memory stick was   known for years by management.
3.   It was established that at the second meeting   i.e. the meeting of 10^th May 2016 that the memory stick could not   be used on a computer that was not connected to the hotel’s system.
4.   The memory stick was password protected.

It is submitted that the   Complainant cooperated fully with the investigation on the basis that it   would be conducted fairly, thoroughly, independently and impartially and that   his concerns would be dealt with. It   transpires that the process was not conducted in accordance with best   practice and the standards laid down.

As a result of the actions of the   Respondent, the Complainant has been placed in a terrible position. He has   suffered a great deal of upset and stress.   His career and his reputation, built up over many years has been   destroyed for no justifiable reason on the basis of a flawed, biased and predetermined   process.

The Complainant is not left with   the conclusion that despite 10 years of exemplary service as Night Manager   that he has been dismissed as part of some other management agenda.

Accordingly, the Complainant is   seeking the following by way of redress:

•   That the decision of the disciplinary hearing,   as set out in the letter of 21^st May 2016 be quashed and all   copies of same shredded.
•   The Complainant be restored to his position as   Night Manager as of the date of his purported dismissal.
•   The payment of salary and entitlements for the   period of loss.

Complaint No.   2 taken under Section 11 of the Minimum Notice & Terms of Employment Act,   1973 (CA-00005528-002)

The following is a summary of the   Complainant’s submission:

The Complainant was not paid his   statutory minimum notice by the Respondent as required under the 1973   Act.

The Complainant transferred Opera pdf reports onto a   memory stick (USB). The Opera system   contains details of the management system which the hotel operates to. This information on this system is highly   commercially sensitive to the hotel and the Complainant had no authority or   reason to transfer this information. He failed to provide a satisfactorily   explanation as to why he did this.

The Complainant also sent emails from his company email   address to his personal Gmail account, which contained company information. Some   of the information transferred to his Gmail account was highly commercially   sensitive to the hotel and he had no authority or reason to transfer this   information. He failed to provide a   satisfactory explanation as to why he did this.

The actions of the Complainant was such that they went to   the heart of the relationship of trust and confidence. It was reasonable to conclude that the   Complainant’s conduct amounted to Gross Misconduct and that the sanction of   dismissal was fair. The Complainant   was afforded due process and fair procedures throughout the process.

Based on the evidence presented at the hearing, I find   that the complaint is not well-founded and therefore fails.

Based on the evidence presented at the hearing, I find   that the complaint is not well-founded and therefore fails.