ADJ-00006303

ADJUDICATION OFFICER DECISION/RECOMMENDATION 

Adjudication Reference: ADJ-00006303

Parties:

Complaint(s):

Date of Adjudication Hearing: 21/02/2017

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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).

Background:

Summary of Respondent’s Case:

CA-00008612-001: The respondent submits that the complainant held a position of considerable trust within its organisation and that as a result of an incident on the 4^th of November 2015 that bond of trust was irrevocably broken ultimately resulting in his dismissal. He was initially alleged to have allowed a member of the public access to the respondent’s private office and allowing the same individual access to the respondent’s computer database which contains strictly confidential client information and allowing the same person access to documentation containing confidential hand written client information. An external consultant was hired to investigate these matters and any other matter relating thereto. Following a very comprehensive open and transparent investigative process into the incident which took place on 4^th of November 2015 and given the risk associated with the nature of the objectionable behaviour of the complainant the respondent was left with no alternative but to dismiss for gross misconduct.

CA-00008612-002: The complainant was dismissed for gross misconduct thereby negating his entitlement to statutory minimum notice.

Summary of Complainant’s Case:

CA-00008612-001: The complainant submits that he was dismissed on foot of an incident said to have been witnessed by the CEO on the 4^th of November 2015 during a routine visit to the office. The CEO conducted investigatory interviews with three members of staff for a period of one hour and twenty minutes on the particular eventing. She returned on the 12^th inst. to conduct further investigatory interviews with four other members of staff. The complainant was unaware of the investigation until the 6^th inst. and he was suspended from duty on the 16^th inst. An investigation meeting was held on the 16^th of February 2016 and a report issued on the 15^th of April. A meeting was held on the 9^th of May to discuss the findings of the report and consider questions arising. Disciplinary meetings were held on the 27^th of May, 10^th of August and 23^rd of September followed by a meeting on the 13^th of October 2016 whose sole reason was to read the letter of dismissal to him. An appeal was submitted on the 20^th of October and the appeal hearing was not convened until the 14^th of December. A letter upholding the dismissal was received on the 18^th of January 2017. Only one of the three allegations made against the complainant in the letter of 6^th of January 2016 was pursued viz. that he allowed an individual access to the company computer database. He has been consistent in the matter throughout and has maintained that the person in question may have seen confidential information on the screen prior to her opening her CV on the computer. The investigation did not enquire of the outside person nor establish whether or not she had seen confidential information. The complainant was ultimately dismissed for ‘gross misconduct as a breach of client confidentiality/Data Protection which occurred as a result of a client having access to the company database’, which differed from the allegation with which he was charged and that outlined in the terms of reference governing the investigation which referred to ‘unauthorised access to the company computer database’. Insofar as he has been dismissed for an allegation which was not put to him it follows that there are no substantial grounds justifying the dismissal. Furthermore insofar as the complainant has been dismissed for reasons never put to him there has been a breach of his rights at natural justice and the LRC Code of Practice (S I 146 of 2000). The investigation was unreliable as it did not interview the person who was alleged to have been allowed access to the database. The investigation was tarnished by the failure of the investigation to interview the seven staff members who had been interviewed on the 4^th and 12^th of November 2015 by the manager making the allegations against the complainant. The notes of these interviews were compiled in a manner contrived to obscure individual attribution of the statements made and were relied upon in the investigation which formed the basis of the dismissal. The investigator at para 4 of the report states that “there was information on the screen and that Ms W had access to this information” which was not denied and goes on to state that the complainant “permitted her to have access to this information” which is denied. There was no finding of allowing access to the database which was the allegation put to him on the 6^th of January 2016. There was a shifting cast of disciplinary officers in the procedure from 9^th of May to 13^th of August (five meetings in all). In fact one of the cast of four (himself not a member of the respondent’s executive committee) attended only one meeting, a second attended two meetings, the third attended three meetings and the fourth attended four meetings. The complainant was not provided with an opportunity at any of the meetings to enter a plea of mitigation or ask that his long service be taken into account. He was not afforded an opportunity to speak at the last meeting. No alternative sanction was considered and notwithstanding the fact that he was dismissed for an allegation which was never put to him this was a single occasion incident which occurred almost one year earlier and it was the only blemish on a career of 17 years. There was no attempt to provide advice or counsel the complainant in respect of client confidentiality during the 11 months between incident and dismissal, nor was there any attempt to evaluate or ascertain whether or not any harm had been done. The letter of appeal was delivered to the respondent on the 21^st of October 2016 and no reference to the same was made in the letter from the respondent enclosing P45 etc. received o n the 24^th inst. No response to the letter of appeal was received until after the herein proceedings were instigated (past 6^th of December 2016). It is submitted that in those circumstances the appeal process was a sham undertaken by the respondent to show compliance with the abovementioned Code of Practice.

CA-00008612-002: The complainant submits that he was unfairly dismissed and that therefore he was entitled to payment of his entitlement to statutory minimum notice.

Findings and Conclusions:

I am satisfied that the procedural aspect of the herein dismissal were and are deficient and would of themselves render the dismissal unfair.

I am equally satisfied that the laissez faire attitude towards the use of the computer by clients and the informal approach taken by the complainant towards the particular client in this case was well known and universally accepted hitherto.

I am of the opinion that the sanction imposed was disproportionate in all the circumstances and I am not satisfied that alternatives to dismissal were considered.

In all of the circumstances described I find that this was an unfair dismissal on substantive and procedural grounds.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

CA-00008612-001: The complaint is well founded and I hereby require that the respondent re-instate the complainant.

CA-00008612-002: The complaint is well founded however in light of the decision in the abovementioned case (CA-00008612-001:) I make no order in respect of statutory minimum notice payment.

Dated:   23^rd August 2017

Workplace Relations Commission Adjudication Officer: Michael Hayes