Worker

Employer

Anonymised Parties

IS Project Leader

Local Authority

Representatives

FÓRSA Trade Union

Local Government Management Agency

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00024375-001

20/12/2018

The Worker submitted his complaint to the WRC on 20^th December 2018 claiming that the procedures adopted by his Employer are at variance with the Employer’s grievance procedures and do not afford him the principles of natural justice and fair procedures.

Fórsa on behalf of the Worker submits as follows:

On the 25^th October 2018 the Worker was called to a meeting with Senior Executive Officer of the Human Resource Department, AB regarding a complaint received by his office from JD, Head of Information Systems of the Employer. The Worker submits that he questioned the fairness of the process of this meeting.

      The Worker was on placed on administrative leave with immediate effect. 

Fórsa argues that the procedures adopted by the Employer in this case were not done in conformity with their own policies and procedures, and despite requests from Fórsa to reconsider their position the Employer proceeded to make up their own procedures as they went along.

The right to a fair hearing is a constitutional right and it is not in the Employer's gift to determine how the Worker should exercise his right to trade union representation during this process. The Worker was not informed of the nature of the meeting that he was summoned too, and he was paraded through the open plan office to the meeting room in full sight of his work colleagues.

Given the nature of the investigation and the possible disciplinary sanction up to and including dismissal it was of the utmost importance that the Worker was given an opportunity to be represented by his trade union representative as provided for in the regulations S.l. 146 of 2000.

The Employer appointed an external investigator without any input from the Worker or his trade union. The position taken by the Employer was that on a unilateral basis, without consultation, an external investigator was appointed with no agreed terms of reference.

The principle of "Natural Justice" & “Fair Procedure" is recognised at law and is given constitutional protection amounting to a constitutional right. The effect of this protection is to guarantee the basic fairness of procedures. This right is imported into the employment relationship, either explicitly or by implication and in simple terms, it means that the employer/management must apply fair procedures and act reasonably at all times when dealing with their employees.

Where the allegation is made by a particular manager, then that manager should not be involved in the investigation process in any shape or form. This flows from the simple maxim that says, "Nobody should be a judge in their own case."

It is submitted on behalf of the Worker that the Employer has a duty of care, which along with the requirements of natural justice, obliges the Employer, having published a grievance policy, to follow their own procedure as set out in that policy and not any other procedure.

JD, who was the information gatherer in the case against the Worker was also the complainant in that case. He was also the person who contracted the IT company group to conduct the forensic analysis of the IT equipment and he directed the course of that investigation, to the extent that the IT company provided four versions of the report before the Employer was satisfied with the information contained within it.

Neither the appointment of an external investigator, nor the Terms of Reference surrounding same had been agreed with either the Worker or the union official. This clearly demonstrates a lack of natural justice and fair procedures.

Conclusion:

In view of the foregoing Fórsa requests that the Adjudicator would find in favour of the Worker and uphold his complaint, and make a recommendation to the effect that,

·         The procedures adopted by the Employer in this case did not comply with best practice, or with its own procedures or with the provisions of Statutory Instrument No. 146/2000, and

·         That the procedures employed in this case to date failed to afford the Worker 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

·         Require the Employer to pay the Worker an amount of compensation which is just and equitable in all the circumstances.

The Employer rejects the complaint.
Background

The Worker is employed as a Grade 7 officer in the IT department of the Local Authority.
In 2018 the Employer became aware of data on their systems which was not data created by employees of the Employer in the exercise of their duties as an employee of the Local Authority nor data which was required by employees of the Employer in the exercise of its functions. The data in question could be considered as personal data for the purposes of data protection legislation.

The Employer carried out an initial review and from which it believed that the Worker had placed the data on its systems and had been using the Employer systems for data processing which was not related to his role and which was unauthorised. The data in question could be considered as personal data for the purposes of data protection legislation.

The Employer is satisfied that there was a prima facie case to be addressed and because of the serious nature of this matter commenced a process under its disciplinary procedure and the Worker was placed on administrative leave.

The Employer’s Position

For the purposes of addressing the complaint the Employer has taken the complaint as set out by the Worker to the WRC and broken it down into component parts which it will address individually:

“My employer is conducting an investigation of a complaint against me that relates to a matter which was allegedly brought to light by a search of my emails and Internet history on my work computer/phone by my line manager without my knowledge or consent”

The Employer is not aware of any basis in law or in policy which prevents an employer carrying out a workplace investigation whenever the employer believes there is or may be some form of employee misconduct or inappropriate workplace behaviour. The Worker has been provided with the terms of reference for the investigation. The Worker in his role should be familiar with the Employer’s ICT policy which provides at page 8 as follows “ It is the policy of [the Employer] to monitor e-mail, Network, Computer storage and internet usage of all employees in order to protect [the Employer], their customers, their suppliers and their employees from liability under equality, data protection, and pornography and copyright “. The Employer is satisfied that it had a legitimate interest in examining the data in question.  

“The procedures being adopted by my employer are at variance with their own grievance procedure and in my opinion do not offer me the principles of natural justice and fair procedures.”

The Employer is satisfied that the Worker has been afforded all of the principles of natural justice and fair procedures as provided for in S.I. No. 146 of 2000: Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000.

The Worker has not provided any evidence to support his allegation that he has been denied any of these.

“My employer appointed an external investigator to hear the complaint without any agreement or consultation or agreement on this appointment and in circumstances where their own grievance and disciplinary procedure do not provide for such an investigation.”

The Employer is not aware of the basis for this complaint, it is implicit in all disciplinary procedures that a matter will be investigated, the Employer’s disciplinary process explicitly references same. It is a matter for an employer to determine as to whether an internal or an external investigator will conduct the investigation. Employers in both the private and public sector often will use an internal investigator to investigate simple and straightforward complaints and avoid incurring costs associated with retaining an external investigator. However, each investigation is considered on an individual basis and an employer may consider an external investigator where the scope or the nature of the investigation makes it appropriate. There is no requirement on the Employer to agree an investigator with the Worker.  The Employer can also provide reassurance that the process has been handled fairly and impartially. 

“My employer engaged the services of a person unconnected with my employment and again without my express written consent or agreement they handed over my personal information to this person despite objections being raised on my behalf by my trade union.”

Fair procedures apply to all parties to the investigation both the Employer and the Worker, all parties involved must have the opportunity to provide all relevant information and to have the investigator consider it. The Employer is satisfied that the only information provided to the investigator was information that was legitimately required for the purposes of undertaking the investigation. The idea that the Worker wishes to ensure fair procedures but believes that the Employer should not provide information to the investigator with regards to the subject matter of the investigation is counter intuitive. The Employer must provide an adequate brief to the investigator on the issues and give clear instructions about what is required.  In all circumstances both the investigator and the Employer will make appropriate arrangements to protect confidentiality.

“This investigator was previously a county manager in another location, my preferences would be for someone unconnected with the Local Authority employments but someone from a designated Human Resources/Industrial Relations background.”

The Employer is satisfied that the investigator chosen is appropriately skilled and knowledgeable and therefore competent to undertake the investigation.  It would not be unusual for an employer to choose an investigator who has a knowledge of the working environment as in this instance a former Chief Executive of a local authority.

“My employer has stated that they will proceed with their investigation (using my personal data) whether or not I co-operate with this investigation.”

This is a matter of accepted procedure and policy; no employer can cease an investigation under its disciplinary process because an employee refuses to co-operate.  To do otherwise would make all disciplinary procedures ineffectual.

“My trade union has already stated that we are objecting to the appointment of this investigator and that we would agree to the appointment of an independent investigator to be agreed between the parties.”

In the context of a disciplinary matter, it is not an investigator’s role to determine the guilt or otherwise, but to investigate if there is a case to answer. The Employer is satisfied that the investigator appointed will remain fair and objective, obtaining all relevant evidence they consider to be necessary to conduct a reasonable investigation (whether this supports or contradicts an allegation). This will include collating all documentary evidence and taking witness statements in relation to the issues under investigation. It should be noted that in accordance with the terms of reference the Investigators report will then be considered by a senior manager from the Employer.

“My employer provided me with terms of reference which I do not agree with and which refers to both their grievance and disciplinary policy and their Dignity at work policy, even though there is no allegation of wrongdoing under the provisions of the Dignity at Work policy”.

The format of the Terms of Reference is based on a standard template which includes reference to the Dignity at Work policy. The Employer has already confirmed to the Worker that it will omit this reference.   

Summary:

The Employer submits that the principles of natural justice and fair procedures have been applied, the Worker has been represented by an experienced trade union official from Fórsa. At all times he has been advised about the procedure to be deployed. He has been furnished with a copy of the procedure proposed. He has also been advised he would enjoy the right to cross examine all witnesses called in support of the misconduct alleged and that he himself can call relevant witnesses. Further, the proposed procedure was in conformity with the code of practice approved under the Industrial Relations Act 1990 and S.I. 146/2000 Industrial Relations Act 1990 (Code of Practice of Grievance and Disciplinary Procedures) (Declaration Order) 2000.

The Worker appears to be confused with the investigative process which is conducted to ascertain whether there are issues that an employee should be required to answer and thereafter there may be a formal disciplinary process, depending on the outcome of the investigation. Relevant to the rights of the Worker in the course of the preliminary investigation is the fact that the findings of fact made in the course of such an investigation are of significance only insofar as they may lead to a formal disciplinary process. If a formal disciplinary inquiry is later commenced the Worker will be entitled to challenge all of the evidence adduced in the investigation process and will be entitled to call their own evidence.  The Worker has been furnished with the Respondent’s Grievance and Disciplinary Policies and Procedures which clearly identifies the procedure to be adopted. This disciplinary code has been in operation within the sector with the agreement of the relevant trade unions and is in such circumstances, presumably well known to the Worker’s representative. The Worker will also be provided with all documents which were to be relied upon in the course of the investigation. It is also relevant that the Worker enjoys the right to a full appeal from any findings as may be made against him in the course of the proposed disciplinary inquiry. 

For the reasons as set out above the Employer would ask the Adjudicator to dismiss the complaints under the Industrial Relations Acts.

I have carefully considered the submissions made by both parties and I have concluded as follows.

The Worker claims that the investigation was conducted in variance with the principles of fair procedures and natural justice. In this referral, the Worker outlined a number of procedural issues in relation to the Employer’s handling of the investigation process. These referred to such matters as the search of his email and Internet history without his consent, the lack of representation at the meeting on 25^th October 2018, the appointment of the external investigator, handing over the Worker’s personal information to the investigator without the Worker’s written consent, and others.

The pertinent issues in this case are quite straightforward. The Employer came across a matter that could potentially cause significant reputational damage and could have serious implications under the General Data Protection Regulation (GDPR). There was an obligation on the Employer to investigate the matter. The allegations against the Worker warranted such an investigation.

The Worker is a member, and “second in command “, of the Employer’s ICT Unit. I note that the Worker argued that he had never signed the Employer’s ICT Policy and was not aware of his obligations. I have two difficulties with this assertion. Firstly, given his position it is implausible to argue that the Worker was not aware of his obligations under the Employer’s ICT Policy.  Secondly, there is an implied term in every contract of employment that requires both employers and employees to refrain from behaving in such a way as to destroy the relationship of trust and confidence. The Employer placed the highest level of trust and confidence in the Worker. It takes a person of sufficient caliber to be entrusted with such access to information as the Worker’s. The Worker was well aware of this trust and through his actions he breached that trust.

Having reviewed the matters raised by the Worker in respect of the allegedly flawed process I do not intend to address each of the matters separately. I do not see the flaws alleged by the Worker sufficient to render the entire process to date flawed.
I find that, it would be ideal if the Worker was afforded right to representation at the meeting of 25^th October 2018. However, as the Worker was represented thereafter I find that it would not rendered the process unsound as contended by the Worker.
I find that the Worker was unable to present any rational reason for his objection to an external investigator. He first claimed that the matter required someone with HR / Industrial Relations background, only to later argue that the investigator should have IT expertise and eventually objecting on the basis that the Investigator was not a company or a sole trader. Based on what was presented to me, I have no reason to believe that the appointed investigator has insufficient expertise or independence to conduct an impartial and fair investigation. I find no compelling justification has been advanced to disturb the appointment of the external investigator.

I find that the Worker appears not to comprehend the magnitude of his actions. He showed no concern at the hearing about the major issue surrounding the case. He had allegedly used the Employer’s IT system to process a significant volume of payroll data of individuals not connected with the Employer. The Worker did not seem to be troubled by the potential implication in respect of the data protection breach in regard to these individuals who clearly entrusted their employer with the personal data required to process the payroll. The Worker, on the other hand challenged strongly, including making a complaint to the Data Protection Commissioner, the Employer’s access to his what he called his “personal data” on the Employer’s IT system. The Worker showed a lack of understanding of the significance of his alleged actions and the expeditiousness required to investigate the matter.

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.

I have carefully considered the submissions made by the parties to this dispute and I do not find in favour of the Worker in relation to this dispute.

I recommend that the Worker engages with the Employer to complete an investigation into the claims made against the Worker.

Fair procedures – appointment of investigator – representation-