Complainant

Respondent

Anonymised Parties

A Worker

A Retail Company

Representatives

Amanda Walsh (Gibson & Associates Solicitors)

Michael Kennedy (Byrne Wallace)

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

26/01/2017

The complainant stated that she   commenced employment in the legal department of the respondent. She was fully   aware of the confidential nature of the documentation she handled on a day to   day basis. She accepts that, in error, she sent two sets of financial   information to the wrong accountancy firm. She has made a request that that   information be made available to her so that her legal representative can   assess the level of confidentially that attaches to them. That request was   denied. The complainant has never actually had an opportunity to assess that   documentation. The first the   complainant learned of her error was when she was called in to the head of   legal department’s office and told what she had done and was dismissed. She   was told to pack up her things and go.

Since then the complainant has   made valiant efforts to secure employment. She did secure employment in a   solicitor’s office in June, 2017. She is earning €40,000 per annum.

The respondent stated that all   of the facts are in agreement in the case. The complainant was dismissed for   gross misconduct, that misconduct being a breach of trust and confidence when   she sent confidential information to a third party in error. The respondent   accepts that the complainant did not deliberately send the information to the   wrong accountancy firm, it was gross incompetence. On that basis they did not   hold an investigation or a disciplinary hearing. They did not allow the   complainant an opportunity to state her case. They did not allow her appeal   that decision.

The respondent is a very   private company. Financial information is strictly confidential. The   respondent uses different accountancy firms and is very careful to manage the   information given to each firm. Any   disclosure of information whether it be in error or deliberate is gross   misconduct and there is no defence that would change the respondent’s view on   how it should be handled.

The respondent accepts that it did not engage in a   disciplinary process. It did not do so because the facts of this case come   within the small number of cases where instant dismissal is warranted. In that   regard it relies on the case of Polkey v A.E. Dayton Services Limited (1988)   AC 344

“in some cases of misconducted, however, the misconduct may be so   grave and to the information available to the employer so clear that the   tribunal will be likely to conclude that no further enquires by the employer   were necessary. Indeed, Mr. Allen was prepared to conceded that there are   cases where serious misconduct will justify instant dismissal and the failure to comply with a   disciplinary procedure agreement will be irrelevant.”

Neary v Dean of Westminister (1978) IRLR 82 set out the   legal test to be applied in such cases:

“Conduct amounting to gross misconduct justifying dismissal must so   undermine the trust and confidence which is inherent in the particular contract   of employment that the master should no longer be required to retain the   servant in his employment.”

It is also accepted in this case that the complainant was   placed in a position of trust with the respondent, that trust was broken when   the complainant made the error she did. In Berber v Dunnes Stores Limited ( 2009 20 ELR 61 it was noted that   :

“There is implied in a contract of employment a mutual obligation   that the employer and the employee will not without reasonable and proper   cause conduct themselves in a manner likely to destroy or seriously damage   the relationship of the confidence and trust between them.”

The respondent alleges that the   complainant, in error distributed highly sensitive information to a third   party. The complainant, her solicitors and I, the adjudicator, are expected   to take their word on that. Nobody, other than the respondent and the   accountancy firm knows what was sent in error and whether or not it was as   sensitive or confidential as the respondent now suggests it is. That does   prejudice the complainant’s preparation of a defence. The respondent does   accept that there were no repercussions financial other otherwise, however they   state that the potential financial repercussions could have been catastrophic   for the respondent. I do not agree with the respondent’s analysis of the   situation. The information was sent to their accountants, albeit the wrong   accountants. Their relationship with them   is also one of trust, confidence and confidentially. Whilst it may have caused some professional   embarrassment it did not actually damage the respondent in any way.

Furthermore, no evidence was   adduced in relation to the instructions the complainant received from the   solicitor as to the posting of the documents. She stated that she was handed   two set of information and told to post them. The solicitor has apportioned   100% of the blame for the error onto the complainant without even assessing   whether or not he contributed to it. It is outside of my jurisdiction to   apportion blame, however, in light of the fact that he was a party to the   error, he should not have had any role in the decision to dismiss her.

Whilst I accept the error might   have eroded the trust the respondent had in the complainant, I find that the   decision to dismiss her summarily was grossly unfair. It was a situation that   warranted an investigation, particularly into the instructions the   complainant received from the solicitor and the actual level of sensitivity   of the documentation. The complainant should have been given an opportunity   to state her case and should have had the benefit of a full disciplinary   process. To dismiss her in the manner the respondent did was humiliating.

Furthermore, I find that the   dismissal of the complainant was disproportionate. The respondent is a very   large company, spread out over the entire country. It was open to the respondent to move the   complainant to some other department where the very onerous burden in   relation to confidentiality did not exist. They didn’t consider any other option   outside of their own legal department.

In all of the circumstances I   find the dismissal of the complainant was unfair.

I note that the complainant is   now working having made valiant efforts in difficult circumstances to secure   employment following her dismissal.

Complainant

Respondent

Anonymised Parties

A Worker

A Retail Company

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-00009326-001

26/01/2017

The complainant stated that she   commenced employment in the legal department of the respondent. She was fully   aware of the confidential nature of the documentation she handled on a day to   day basis. She accepts that, in error she sent two sets of financial   information to the wrong accountancy firm. She has made a request that that   information be made available to her so that her legal representative can   assess the level of confidentially that attaches to them. That request was   denied. The complainant has never actually had an opportunity to assess that   documentation. The first the   complainant learned of her error was when she was called in to the head of   legal department’s office and told what she had done and was dismissed. She   was told to pack up her things and go.

Since then the complainant has   made valiant efforts to secure employment. She did secure employment in a   solicitor’s office in June, 2017. She is earning €40,000 per annum.

The respondent stated that all   of the facts are in agreement in the case. The complainant was dismissed for   gross misconduct, that misconduct being a breach of trust and confidence when   she sent confidential information to a third party in error. The respondent   accepts that the complainant did not deliberate send the information to the   wrong accountancy firm, it was gross incompetence. On that basis they did not   hold an investigation or a disciplinary hearing. They did not allow the   complainant an opportunity to state her case. They did not allow her appeal   that decision.

The respondent is a very   private company. Financial information is strictly confidential. The   respondent uses different accountancy firm and is very careful to manage the   information given to each firm. Any   disclosure of information whether it be in error or deliberate is gross   misconduct and there is no defence that would change the respondent’s view on   how it should be handled.

The respondent accepts that it did not engage in a   disciplinary process. It did not do so because the facts of this case come   within the small number of cases where incident dismissal is warranted. In   that regard it relies on the case of Polkey v A.E. Dayton Services Limited   (1988) AC 344

“ in some cases of misconducted, however , the misconduct may be so   grave and to the information available to the employer so clear that the   tribunal will be likely to conclude that no further enquires by the employer   were necessary, Indeed, Mr. Allen was prepared to conceded that there are   cases where serious misconduct will justify instinct dismissal and the failure to comply with a   disciplinary procedure agreement will be irrelevant.

Neary v Dean of Westminister (1978) IRLR 82 set out the   legal test to be applied in such cases:

“Conduct amounting to gross misconduct justifying dismissal must so   undermine the trust and confidence which is inherent in the particular   contract of employment that the master should no longer be required to retain   the servant in his employment.

It is also accepted in this case that the complainant was   placed in a position of trust with the respondent, that trust was broken when the complainant   made the error she did. In Berber v   Dunnes Stores Limited ( 2009 20 ELR 61 it was noted that :

“There is implied in a contract of employment a mutual obligation   that the employer and the employee will not without reasonable and proper   cause conduct themselves in a manner likely to destroy or seriously damage   the relationship of the confidence and trust between them.”

The respondent alleges that the   complainant, in error distributed highly sensitive information to a third   party. The complainant, her solicitors and I, the adjudicator, are expected   to take their word on that. Nobody, other than the respondent and the accountancy   firm knows what was sent in error and whether or not it was as sensitive or   confidential as the respondent now suggests it is. That does prejudice the   complainant’s preparation of a defence. The respondent does accept that there   were no repercussions financial other otherwise however state that the   potential financial repercussions could have been catastrophic for the   respondent. I do not agree with the respondent’s analysis of the situation.   The information was sent to their accountants, albeit the wrong accountants.   Their relationship with them is also   one of trust, confidence and confidentially.   Whilst it may have caused some professional embarrassment it did not   actually damage the respondent in any way.

Furthermore, no evidence was   adduced in relation to the instructions the complainant received from the   solicitor as to the posting of the documents. She stated that she was handed   two set of information and told to post them. The solicitor has apportioned   100% of the blame for the error onto the complainant without even assessing   whether or not he contributed to it. It is outside of my jurisdiction to   apportion blame however in light of the fact that he was a party to the error   he should not have had any role in the decision to dismiss her.

Whilst I accept the error might   have eroded the trust the respondent had in the complainant, I find that the   decision to dismiss her summarily was grossly unfair. It was a situation that   warranted an investigation, particularly into the instructions the complainant   received from the solicitor and the actual level of sensitivity of the   documentation. The complainant should have been given an opportunity to state   her case and should have had the benefit of a full disciplinary process. To   dismiss her in the manner the respondent was not humiliating.

Furthermore, I find that the dismissal of   the complainant was disproportionate. The respondent is a very large company,   spread out over the entire country. It   was open to the respondent to move the complainant to some other department   where the very onus burden in relation to confidentiality did not exist. They   didn’t consider any other option outside of their own legal department.

In all of the circumstances I   find the dismissal of the complainant was unfair.

I note that the complainant is   now working having made valiant efforts in difficult circumstances to secure   employment following her dismissal.