Complainant

Respondent

Anonymised Parties

Senior Training Advisor

County Education Training Board

Representatives

Marie O'Connor SIPTU

Ian O’ Herlihy Solicitor Mason Hayes and Curran LLP

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-00031765-001

22/10/2019

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

CA-00031765-002

22/10/2019

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

The Complainant was employed by the Respondent between 1 November 2018 and the 31 July 2019.

The Complainant was on maternity leave between the 1 November 2018 and 24th of June 2019.

The Complainant was dismissed on the 31 July 2019.

CA-00031765-001

The Complainant's case is that she made a protected disclosure following the discovery of financial documentation belonging to herself and her husband (a Garda) on the office photocopier on 15 July 2019.  These documents had been stored by her on the bottom of her unlocked desk drawer.

She advised the Respondent that a data breach had occurred and requested the office shredding box be checked that seven members of staff with access to the office be contacted by email.  She expressed her fears of the potential use of personal information belonging to herself and her husband.

She identified a member of staff whom she suspected of being responsible for photocopying her documents. 

She requested a copy of the photocopier logs and that an investigation be carried out into the incident.

She had three meetings with her line manager and the Area Training Manager in relation to the incident. 

On the 19 July 2019, the Area Manager informed her that there was no unusual printing activity during business hours, he would not provide her with a copy of the photocopier logs or a copy of his investigation report, shredding would be carried out on the next scheduled date and the investigation was concluded.

The Respondent’s Director of Further Education and Training convened a meeting with the Complainant on 25 July 2019 ‘to outline certain serious concerns she had about her engagement with the Respondent management, staff and clients'.

The Director enumerated four areas of concern, namely

Judgement and Decision-making skills

Communication Skills

Calling the Reputation of the Respondent staff and the Organisation into disrepute

Professional Boundaries

Examples of her concerns were provided to the Complainant.

The Complainant was provided with a memorandum of the minutes of the meeting.  It was later described as a 'probationary review'.

A letter of dismissal issued on the 31 July 2019. The Director gave no reasons for dismissal save

.... The concerns which I have outlined, taken together, and particularly given the short period of time over which they have arisen, are such that I am satisfied that your probationary employment should be terminated with effect from today.

An appeal hearing took place on 3 October 2019. This was conducted by the Respondent Chief Executive. The Chief Executive issued his appeal outcome on 16 October 2019 rejecting the Complainant's appeal. That letter stated that the Board was not aware of a ‘relevant wrongdoing’ and found that the Complainant had not made a protected disclosure.

The letter set out that the only grounds for the termination of the Complainant's employment were set out in the Director’s letter 31 July 2019.

The Complainant relied on Section 6(2)(ba) of the Unfair dismissals Act 1977 (as amended) as she had less than one years’ service.  She submitted that she had made a protected disclosure as defined in section 5(1) of the Protected Disclosures Act 2014.  She explained that the 'relevant information' was the finding of her personal documentation on a photocopier belonging to and on the premises of the Respondent. 

She submitted that the 'relevant wrongdoing' was a reasonable belief that the health and safety of her husband was or was likely to be endangered by the disclosure of his personal information, because of his occupation, or that an offence e.g. under the GDPR or Data Protection Act 2018 or a criminal offence/fraud had been, was being or was likely to be committed.

She relied on section 5 (8) of the Protected Disclosure Act 2014 which sets out that a disclosure is a protected disclosure until the contrary is proven.  

The Claimant’s case was that no issues concerning her performance or conduct were communicated to her before 25 July 2019, 10 days after she brought the attention of the respondent to the discovery of her personal documentation on the photocopier.  She was dismissed on 31 July 2019 a little over a fortnight later.  She received no warnings or opportunity to improve her performance. She relied on the case of Richardson v H Williams Limited UD 17/1979, Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37  and Maha Lingham v Health Service Executive [2005] IESC 89.

The Claimant submitted that some of the grounds for her dismissal were described as misconduct and that a majority if not all the examples in the areas of concern of the Director related to the Protected Disclosure incident and its aftermath.

She explained that her dismissal resulted 'wholly or mainly' for making a protected disclosure.

She also set out that her Manager may have sought her dismissal, given his dissatisfaction at her appointment in the first place. He described her in an email 12 November 2018 as a 'glorified IT Trainer' who 'knows nothing about apprenticeship'.

As regards the right to fair procedures, the Complainant set out that she not given written notice of the meeting of the 25 July 2019, nor she was not afforded the right to representation. There were no written complaints against her. There were no issues raised prior to the 15 July 2019. There was no provision for an appeal in the letter of dismissal.

CA-00031765-002

The Complainant's case under the Industrial Relations Act 1969 was that she was dismissed without following fair procedures. She relied on a number of Labour Court decisions that emphasised that and Employer is required to follow fair procedures before it makes a decision to impose a disciplinary sanction.

CA-00031765-001

The Respondent's submission was that the Complainant did not make a protected disclosure or purport to make a protected disclosure prior to her dismissal and the first mention of a protected disclosure was made after the Complainant had been dismissed during and the appeal hearing before the Respondent's Chief Executive.

It explained that it did investigate the Complainant's complaint of a data breach. Following same it concluded that there had not been a data breach as the Complainant's data had not been shared with by the Respondent with a third party.

The Respondent set out that it was unaware as to what relevant wrongdoing was alleged to have occurred which could have formed the basis of a protected disclosure by the Complainant.

It submitted that the Complainant's attempt to raise the issue the protected disclosure subsequent to her dismissal was not made in good faith.

CA-00031765-002

The Respondent acknowledged that it terminated the Complainant's employment during her probationary period. It submitted that the Complainant was treated fairly as a probationary employee and was afforded an internal appeal.

It explained that her probationary period was six months. As she was on maternity leave from the commencement date of employment, her probationary period commenced on the her first the return to work with the Respondent on the 24 June 2019. 

The Complainant worked for a period of five weeks for the Respondent.

The Respondent had several serious concerns about the Complainant's conduct. In a subsequent submission the Respondent submitted that several of the issues could properly be termed as performance issues while some of the issues could be described as conduct issues.

It confirmed that a disciplinary meeting was arranged with the Complainant on 25 July 2019. The Complainant was given details in relation to each of the concerns outlined against her and was provided with examples and occasions of which the concerns had arisen. The Complainant was afforded an opportunity to respond to all the concerns. Following the meeting a note of the Respondent's concerns was forwarded to the Complainant. They Complainant was afforded an opportunity to give a further response in writing the series of concerns outlined.  The Complainant did so on the 29 July 2019.

In addition, after the meeting on 25th of July 2019, the Complainant advised that she was being represented by SIPTU.

The Respondent issued a decision letter to terminate the Complainant's employment on the 31 July 2019. It referred to Clause 5 of the Complainant's contract of employment which set out that her "appointment may be terminated at any time during the probationary period".

The Complainant's representative sought an appeal to the Respondent's decision and this request was granted. The appeal was heard on 3 October 2019. The outcome of the appeal rejected the Complainant's appeal and upheld the decision to terminate the Complainant's employment. Notice of the appeal decision was issued on 16 October 2019.

CA-00031765-001

Section 2(1)(a) of the Unfair Dismissals Act states the Act shall not apply to:

“an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year's continuous service with the employer who dismissed him …………………………..”

The Act sets out exceptions to this service requirement and states:

“Section 2 (1) … shall not apply to a person … who is dismissed if the dismissal results wholly or mainly from one or more of the matters referred to in subsection (2) (a) of section 6.” 

As the Complainant does not have one year’s service she is relying on section 6 (2) which states:

“the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one of the following:

(ba)  the employee having made a protected disclosure,

The Protected Disclosures Act 2014 (the 2014 Act) introduced protection for workers who make protected disclosures in accordance with the terms of the 2014 Act. The purpose of the Act was to empower workers to speak up about wrongdoings (as defined in section 5 (3) of the Act) without fear of reprisals from their employer or any third party.

Section 5 of the 2014 Act sets out what is protected disclosure. It refers to disclosure of relevant information regarding a wrongdoing.

Section 5 (2) defines what relevant information is. It refers to reasonable belief that tends to show relevant wrongdoings and that came to the attention of the worker in connection with the workers employment.

A relevant wrongdoing is described in section 5 (3). It must be a legal wrong. A moral wrong is not enough. It refers to a wide range of past, present and future acts or omissions. The phrase ‘ is likely’ is used in all but one of the acts or omissions described in section 5 (3).

Section 5 (8) sets out that a disclosure is presumed to be a protected disclosure until proven to the contrary. This means that the burden of proof is on the employer to rebut an assertion that a protected disclosure has been made.

The Unfair Dismissal Act 1977 has been amended by the 2014 Act. A dismissal for having made a protected disclosure is automatically unfair if it results wholly or mainly by reason of the employee having made a protected disclosure.

In the case of Dan Philpott v Marymount University Hospital and Hospice Limited [2015] IECC 1 it was held  ’The Respondent acknowledges that the burden of proof in that regard rests with the Respondent. It is asserted that if, the Respondent proves that the said “disclosures” are not “protected disclosures”, then the Applicant does not have the protection of the Unfair Dismissals Acts, 1977 – 2007 …………. However, if the Respondent fails to prove that the disclosures were not “protected disclosures” then it is for the Applicant to prove that it is likely that there are substantial grounds for contending that dismissal results wholly or mainly from the employee having made a protected disclosure’.

The first question for me to decide is whether the Complainant disclosed relevant information of a wrongdoing. 

The evidence presented was that the Complainant brought sensitive personal information into the workplace around the 8 July 2019.  This information related to salary, expenditure, insurance, bank details for herself and her husband. The Complainant initially claimed that the reason she had this information in the office related to completion of a travelling and subsistence form, however she later clarified that she was changing her car. 

The Complainant found some of this information on a photocopier in an office on the 15th July 2019.  She reported this to the Respondent.

To attract the protection under the 2014 Act, the Complainant must have reasonably believed that the information she disclosed to the Respondent tended to show one or more relevant wrongdoings and it must have come to the worker's attention in connection with her employment. 

What amounts to reasonable belief for the purposes of a protected disclosure has been developed in several cases in the UK. This is dealt with in the UK case of Darnton v University of Surrey [2003] ICR 615. In that case it was held that the reasonable belief must be based on the facts as understood by the worker. This means that it has both subjective and objective elements. The word belief is subjective, but the reasonableness of it is to be determined objectively. In Babula v Waltham Forest College [2007] EWCA 174 the Court of Appeal stated that

Provided his belief (which is invariably subjective) is held by the Tribunal to the objectively reasonable, neither (1) the fact that the belief turns out to be wrong – nor, (2) the fact that the information which the claimant believed to be true (and may indeed be true) does not in law amount to a criminal offence – is, in my judgement sufficient, of itself, to render the belief unreasonable and thus deprive the whistle-blower of the protection afforded by the statute.

Based on the evidence of the meeting of 16 July 2019 (the day after her discovery of the document on the photocopier) wherein the Complainant outlined that she feared somebody having access to her personal information "could buy a house in my name" or "go to town on my Littlewoods account”, I accept that the Complainant had a reasonable belief that her financial information and that of her husband, had been, was being or was likely to be used for a financial fraud.  This was also substantiated in the Complainant's confirmation that her husband was advised to report what had happened to the Gardai, so that if anything happened with the information it would be on file and recorded.

Therefore, I find that the Complainant did make a protected disclosure.  On that basis, the Complainant has the protection of the Unfair Dismissals Act 1977 (the 1977 Act). 

It now follows that the legal burden is on the Complainant to show that her dismissal was wholly or mainly on the ground of having made a protected disclosure. 

Events which led to the decision to terminate the Complainants employment commenced with a meeting between the Complainant and the Director of Further Education.  The meeting lasted 1 hour and 30 minutes.  The Director outlined how she had serious concerns around for areas of the Complainant's work, namely

Judgement and Decision-Making Skills

Communication Skills

Calling the Reputation of Respondent staff and the Organisation into disrepute and

Professional boundaries

The Director went into detail on examples of this and her first reference was to the allegation that personal data of the Complainant was copied within the organisation. She set out the background and how the Complainant typed up an email which she insisted management should send to the seven staff who had access to the photocopier including a line accusing them of that the theft. This request was made before any investigation had taken place.

The Director had concerns that the Complainant had left her personal data in the office for a considerable period.  She had a concern with the Complainants suggested that the Gardai be brought into the workplace to fingerprint staff who had access to the office. The Complainant explained that this was her husband suggestion and she did not want it to happen.

The Director explained that it was alleged that the Complainant had raised her voice and used offensive language to her manager and the Area Training manager. They had found it very threatening and were shaken after it.

The Director explained that she was advised that the Complainant accused her Line Manager and the Area training manager of “arse covering”.

The Director also outlined how the Complainant's line manager had found questions by the Complainant regarding meeting apprentices on site and whether she should get into a car with them unsettling.

The Director also outlined while the Complainant had made a comment to her line manager about her physical appearance and referred to having "baby fat" and on another occasion she approached him and said, "the girls described you as tall and bald".  It was also put to her that on monitoring visits to employers when accompanied by her line manager, her interactions with her Clients involved oversharing her own personal information with them.

The Director also raised the issue that the Complainant named a staff member who she believed copied her information. The Complainant confirmed that she was keeping written notes on what the named staff member was saying to her during their daily interactions.

The Complainant replied to the Director of Education by email 29th of July 2019.  Her response ran to 4.5 pages.  She commenced with 24 June 2019 and explained how the person who was acting up in her role when she was on maternity leave was on holidays and her line manager was on sick leave. She felt no provision had been made to train her into the role or to provide her access to the IT systems.

She described what had happened when she first met her Line Manager and responded to the allegation that she had said to him "the girls described you as tall and bald". She explained when she met her Line Manager he seemed to stand-off-ish towards her.  She explained what had happened on 5 July 2019 as regard her query to her Line Manager interviewing an apprentice in a car.  She explained the background to the reference to "baby fat" in the context of the work start time of 8:30 AM and how they reference to baby fat was merely making light of the situation.

She explained what occurred on 8 July 2019.  Also, for that date she referenced a named member of staff that she had difficulties with. The background was that this named member of staff had applied for the role but was not successful. The Complainant was advised that the atmosphere in the office had been negatively affected by her presence. She set out that the decision to dislike had been made before she arrived.

Following on from her meetings with her line manager on the 4th and 5th July 2019, she felt that her line manager was angry with her. She raised this with the Area Training Manager.

On 8 July 2019 her Line Manager met with her. She was very open and honest with him and he apologised if his initial engagement with her was frosty. She explained that he raised his hands to his head and said he didn't know why the named person in the office was not hired internally, but it would have made his life a lot easier.

She explained that Professional Boundaries were discussed at a meeting of 10 July 2019 with the Director of Education and her Line Manager.

The Complainant was advised on the 12 July 2019 that she would get feedback throughout her probationary period. 

For the remainder of her reply she dealt with the issues raised about the 15 to 19 July 2019.  The Complainant set out what occurred that day and answered the issues raised. She felt that neither her Line manager nor the area training manager knew how to manage the situation. She outlined to them what action she would like taken. She wanted to make the person aware that she knew she had her data.

I must consider if the dismissal of the Complainant on the 31 July 2019 was resulted “wholly or mainly from” the Complainant having made a protected disclosure.  Having reviewed the evidence submitted to me both in writing and verbally at the hearings, I accept that the decision made by the Director of Education to terminate the Complainant's employment was based on the number of serious concerns she had in relation to her "conduct and performance" since she started 14 June 2019. Issues were identified dating back to 4 July 2019 some 11 days before the Complainant's documents were found on the photocopier.  While the Complainants actions after her protected disclosure on 15 July 2019 featured in several the Director’s concerns, I do not accept it was the main factor in her dismissal. 

The Complainant had issues with her Line Manager and the Area Training Manager well before the 19 July 2019.  The issues over the short period of the Complainant’s employment were known to the Complainant herself and addressed in her reply of the 29 July 2019. 

Therefore, I conclude that the complainant’s dismissal did not result “wholly or mainly from ………the employee having made a protected disclosure”. I therefore find the complaint is not well founded.

CA-00031765-002

In Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] The Court of Appeal held that during a period of probation, both parties are free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue. Neither party can hold the other to the continuation of the employment against the wishes of the other.

The Court of Appeal declined to accept that a Court can imply a right to fair procedures – still less uphold a cause of action for the breach of such an alleged right – in relation to the assessment of an employee’s performance by an employer (other than for misconduct) during the probationary period, as this would negate the whole purpose of a probationary period. 

The reasons given for the Complainant's dismissal were in relation to her "conduct and performance since you started Monday 24th of June 2019".  Not all the issues raised were in relation to the Employee’s conduct.  I accept that some were in relation to her performance. 

The law requires fair procedures to be followed in relation to dismissals for misconduct. In this case the Employer did go to lengths to provide fair procedures to the Employee leading to the termination of her employment. The procedures are essentially those in civil proceedings not what would be expected at a criminal trial.

In not allowing the Complainant to confront her Line Manager and Area Training Manager, whose statements were relied on, the probationary review or disciplinary meeting which led to her dismissal fell short of the standards expected in such investigations.  See S.I. 146/2000; Code of Practice on Grievance and Disciplinary Procedures and the Court of Appeal in Iarnrod Eireann v McKelvey [2018] IECA 346. 

However, this failure is by no means a fundamental breach of fair procedures.  What is required is fairness, not perfection.

Taking into account the process carried out by the Respondent in the probationary review or disciplinary review and the subsequent appeal, I recommend that the Respondent pay to the complainant €750.00.

CA-00031765-001   This complaint is not well founded.

CA-00031765-002   I recommend that the Respondent pay to the Complainant €750.00.

Protected disclosure.  Dismissal during probationary period.