FULL RECOMMENDATION
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : LIMERICK CITY & COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - A WORKER (REPRESENTED BY FORSA) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Treacy |
1. An appeal of Adjudication Officer's Recommendation No. ADJ-00018913.
BACKGROUND:
2. This case is an appeal of an Adjudication Officer’s Recommendation by the Worker. On the 11 July 2019 the Adjudication Officer issued the following Recommendation:-
- “On balance, I am satisfied that the Employer made every effort to investigate the complaint against the Worker and to afford the Worker a comprehensive and thorough process.
Having considered the submissions of the parties, I find that the most important aspect of this recommendation is that the Worker and the Employer work through the process that is in progress. I recommend that the Worker engages with the Employer in the investigation process with an aim to conclude the matter.
A Labour Court hearing took place on 21 November 2019.
DECISION:
This is an appeal by a worker of an Adjudication Officer Recommendation ADJ-00018913 which dealt with his claim that the procedures adopted by the employer, into alleged misuse of the Council’s IT property, were at variance with its grievance procedures and did not afford him the principles of natural justice and fair procedures.
The Claimant is employed as a Grade 7 IS Project Leader in the Council’s IT Department. On 25th October 2018 he was summoned to a meeting to discuss a complaint received by the office.
Summary of the Claimant’s Case
The Union on behalf of the Claimant claimed that there was breach of procedures as the Claimant was not given advance notice of the nature of the meeting and was informed that he did not need representation at the meeting, yet the meeting was officially minuted. At the meeting the Claimant was advised that the office had received a formal complaint from the Council’s Head of Information Systems. The Claimant was asked to hand over his work phones and laptop. He was informed that a forensic examination of the devices would be conducted by the Council’s Information Technology Security Investigator. At which point the Claimant sought to have his wife (who also worked in the Council) present and a trade union representative at the meeting. His wife joined the meeting and was informed that the Claimant was being placed on administration leave while an investigation was being undertaken by the Council. He was informed that he could not leave the building until he handed over his devices. He was also informed that he could remove any personal data from the devices.
The Claimant questioned the way he was summoned to the meeting, stating that it was in front of his colleagues. The meeting took place in an open plan layout office depriving him of privacy. Overall, he claimed that the Council’s procedures did not conform with the Code of Practice on Grievance and Disciplinary Procedures (S.I. No 146 of 2000). He also claimed that the Council was in breach of Clause 7.2.19 of its ICT Usage Policy, which requires the written permission of the Senior Executive Officer of Human Resources Department in order to conduct a search of the Claimant’s emails. The email search was carried out by the ICT Line Manager. The Claimant maintained that the search was designed to examine whether or not he had sent confirmation to a project team that work had been completed, which he claimed the line manager and the project team already both knew. This he maintained was not one of the categories listed in the ICT Usage Policy to monitor employee’s emails. Furthermore, he claimed that it was conducted without his consent.
The Council engaged an independent contractor to retrieve information from the Council’s IT Systems for use in the investigation. The Claimant said that the Council instructed the independent contractors on the type of information they should seek to retrieve and asking them if they could show if there was any evidence that the Claimant had being paid by a third party.On 23rd November 2018 the Council wrote to the Claimant informing him that theindependent contractor’s report was completed and the Council had appointed a retired County Manager to conduct a full investigation and that it the matters as found by the independent contractors were proven, this may fall within the definition of Gross Misconduct as set out in the Council’s Grievance and Disciplinary Procedure.
The Union claimed that the Claimant was denied access to his trade union representative at the time of his suspension; there was no discussion with it around the appointment of an outside investigator; there was no provision for the appointment of an external investigator; and that permission had not been sought or given to share the Claimant’s personal information with anyone else.
The Union claimed that the procedures employed to date failed to afford the Claimant access to fair procedures and deprived him of his right to have the matter dealt with in accordance with the principles of natural justice and sought the appointment of an agreed external investigator. It claimed that the Council should pay the Claimant compensation for the alleged breaches of natural justice.
Summary of the Council’s Position
LGMA on behalf of the Council stated that the Council became aware of data on its system which on a prima facie basis was not data created by any of its employees in the exercise of their duties nor was its data which was required in exercise of the Council’s functions. This data was payroll data for a third-party private company, including data which would be considered as personal data for the purpose of the data protection legislation.
From its initial review of the IT system if was believed that the Claimant had placed the data on its system contrary to his role and was unauthorised. As this raised major concerns for the Council, it commenced a process under its Disciplinary Procedure and placed the Claimant on administrative leave pending an investigation.
The Council said that the decision to place the Claimant on administrative leave was taken to facilitate the proper conduct of the investigation and to prevent interference with evidence. It disputed the Claimant’s contention that it could not carry out an investigation and stated that this was provided for in its procedures and was a matter for the Council to determine. It stated that the Claimant was at all times permitted to be represented by his trade union representative. The Council submitted that the Complainant could address any matters of concern in the course of the disciplinary process and has not been prevented from doing so. It stated that it was committed to complying by the terms of S.I. 146/2000. In the circumstances, the Council contended that the reference of a complaint to the Workplace Relations Commission was premature.
It disputed the Claimant’s contention that evidence gathered for the investigation was obtained in an inappropriate manner. The Council’s ICT Policy states:-
- “It is the policy of Limerick City & County Council to monitor e-mails, Network, Computer storage and internet usage of all employees in order to protect the Council, their customers, their suppliers and their employees from liability under equality, data protection and pornography and copyright.”
The Court’s Findings and Recommendation
The Court fully accepts that the Council had an immediate and urgent requirement to investigate an alleged misuse of its IT system and possible breach of data protection legislation and thereby understands its requirement to have a discussion with the person who was identified as a possible person of interest as a matter of urgency. In such circumstances the Court cannot but find that the requirement to speak to the Claimant and seek possession of Council technical equipment in his possession as a matter of urgency was appropriate and necessary.
The Court is acutely aware that an investigation into the matter is underway and has been ongoing for a significant period of time. The Union claim that the current investigation which the Claimant has participated in, under protest, should be replaced by a new investigation by an agreed investigator. It raised specific concerns about the current investigation. Firstly, it stated that in its view there were discrepancies in the minutes of the meetings held as part of the investigation. Secondly, it raised concerns regarding the technical ability of the investigator and thirdly it stated that a number of its chosen witnesses were not interviewed as part of the process.
Having considered the comprehensive submissions of the parties and the detailed representations made at the hearing, the Court finds it unnecessary to recommend what would essentially be a new investigation. However, the Court recommends that the following enhancements should be made to the current investigation:-
- Minute Taking:-
The Court recommends that where issues concerning the minutes of meetings are raised, they must be brought to the attention of the investigator in writing and such concerns must be appropriately recorded.
Technical Knowledge:-
The Court recommends that the Council should retain the services of a person with the required technical ability to advise the investigator and the Union should be consulted about the appointment. The costs of which should be borne by the Council.
The Court also recommends that the Claimant should be allowed to have a person with the required technical ability present at meetings, the costs of which are a matter for the Claimant.
Witnesses:-
The Court recommends that the inclusion of witnesses as part of the investigation is a matter for the investigator and appropriate consideration should be given to the inclusion of witnesses nominated by the Claimant.
With the above enhancements to the investigation process, the Court recommends that it should be concluded as expeditiously as possible.
The Adjudication Officer’s Recommendation is amended accordingly.
The Court so Decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
04 December, 2019Deputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Ciaran Roche, Court Secretary.