ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031101
Parties:
| Complainant | Respondent |
Parties | Matthieu Debomy (name amended on consent at hearing) | Apple Distribution International Ltd. |
Representatives | Appeared In Person | Human Resource Team |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00041446-001 | 07/12/2020 |
Date of Adjudication Hearing: 29/06/2021
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
This matter was heard by way of remote hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings. Both parties were canvassed for their views on the application of the Supreme Court case of Zalewski v Adjudication Officer to the running of the case. Both parties confirmed that they were happy to proceed with the case. On 7 December 2020, the Complainant a Customer Relations Advisor at the Respondent Business submitted a complaint of Constructive Dismissal. He confirmed that he had found new work on 2 November 2020. The Complainant presented his own case and furnished an extensive prehearing submission. The Respondent operates a Computer Business. They were represented by the Human Resource Team and filed an extensive submission prehearing. I had expected to receive a record requested from the respondent in relation to Ms As evidence. At the time of writing, I have not received this requested record.
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Summary of Complainant’s Case:
The Complainant is a French National and worked on a full-time basis as a Customer Relations Advisor with the Respondent Computer Business between 1 January 2014 and 31 October 2020, when he resigned through constructive dismissal. His gross earning was €33,441 per annum. He sought the remedy of compensation as his preferred remedy. The Complaint form, lodged on 7 December 2020, reflected that his continued employment had been threatened by the activation of the company disciplinary procedure on 21 August 2021. The Complainant was given a written warning on 6 October 2020. However, by then, he had lost trust in the company and had actioned a plan to find new work in case he was dismissed. The Complainant contended that the Disciplinary procedure was protracted at 6 weeks. It was also unreasonable as it was “for a so-called offence, not covered in any handbook. The Complainant added a written statement where he confirmed that he had an unblemished employment record over 6.5 years. He had actively engaged in a Team Manager Apprentice Programme. The Complainant outlined details of his interface with first a customer of a reseller and subsequently the resellers contact with the Respondent. The Complainant outlined that in early August 2020, his team had been made aware that a product reseller was giving false information to customers on the respondent products. This brought him into contact with a customer of the reseller whose request to amend a purchase date could not be satisfied by him. This prompted a complaint back to the reseller. The Complainant made an experimental contact with the reseller using his own personal details rather than his company logo. This in turn prompted a direct contact from the reseller to the company. It was unclear to the complainant how his official status as employee was unearthed, but he suspected that it was enabled internally at the respondent business. The Complainant was invited to attend an investigative meeting on August 24, 2020. He stated that the Disciplinary procedure had been launched following the message to the reseller and the customer conversation. The Complainant stated his concerns on his data privacy rights and was concerned when his personal email was shared in the minutes. He was advised that the consequences of the disciplinary procedure, if proven, were serious and could lead to dismissal. The Complainant became frustrated as questions posed on how the sending of the message to the reseller constituted a breach of policy , but these were not answered. He attended a Disciplinary meeting on 29 September. The Complainant was apprehensive of the outcome and resigned on October 2, 2020, prior to receiving the outcome of the disciplinary process. The Complainant attached the records of the email thread linked to the operational matter and the Business Conduct Policy. Evidence of the Complainant: The Complainant understood that he had been a “good fit “at the company and was happy and grateful for his experience there. He aspired to advance his career and was working towards that day. He outlined that a new team of managers had been appointed in his area and he began to feel threatened as he formed the view that they wanted rid of him. He alluded to one incident in July 2020 but did not elaborate. He recalled that he had not approved of some of the new methods, and he found that he had sided with Advisors, rather than the business side. He recalled that on August 21, 2020, he had received an A4 email from the Company which had been copied to others. He was requested to reviews documents which he had compiled involving a contact and direction he had sent to a reseller of company products. He attempted to discuss this with his Team lead but was overtaken by the announcement of the activation of a Disciplinary procedure. At first, he thought he could manage what the investigation was about as he knew the Investigator. However, he found out it was a lot more challenging. He sought to ask questions but never received any answers. He took issue with the accuracy of translation, as it portrayed him as someone else. The reseller thought he was a customer rather than staff. He argued that names should not have been disclosed to the customer as reflected in the company policy and was shocked when his personal email came back in the processing of the complaint. He has since complained under GDPR in France, the sovereign country in that matter. He considered the risk of waiting for the verdict in the Disciplinary procedure. He was overwhelmed by the wording of the “at risk “email. He was concerned for his family. He was aware of the imperative of giving 30 days’ notice and decided to look for other work after the Investigation concluded.
The Complainant felt troubled as the accusations proceeded through the company procedures. He experienced an absence of communication from his manager. Between August and October, he was not asked to undertake anything outside his role. He explained that he felt compelled to resign on 2 October as he feared dismissal and the consequences for his career. He was troubled by feeling undervalued, unheard and unsupported and he felt he had very little choice, but to go. He had not given reasons for his leaving on his notification . He was happy and relieved at the eventual outcome of the Disciplinary procedure on October 6 but argued that the process was unduly protracted.
He found new work which commenced on 2 November 2020 which carried a lower €300 differential per month. He did take some shares but €5,000 left in company shares. During cross examination, the complainant confirmed that he felt forced to leave and that voice “Came loud and clear “ He had not considered an appeal of the disciplinary sanction, as he had already tendered his notice and he had lost trust. He simply could not stay while faced with the vacuum in communication. He confirmed that he accepted the translation and that the company had serious issues to investigate. He also accepted that he had received all copies of documents pertaining to the investigation and Disciplinary procedure. He confirmed that had been provided with time to respond. He concluded that communication was just “one way “ .x The Complainant clarified that he did not have experience of disciplinary procedures and had taken a colleague with him in support. He was troubled by the release of his personal data and could not secure an answer from the company. He was not aware of the relevance of the grievance procedure and felt he had no option outside his resignation. In conclusion, the complainant submitted that the Respondent had insufficient grounds to justify a disciplinary procedure from the very outset. He felt compelled to resign his position as he believed he had been wronged and unsupported by the company. He had lost trust and was forced to find new work. The Complainant acknowledged that he should have attached his reasons for leaving on his resignation email. |
Summary of Respondent’s Case:
The Respondent operates a large-scale Computer Business and employs in excess of 5,500 people in Ireland. The Respondent offered a correction on the complainant’s name listed on the complaint form. This was accepted by the Complainant. The Respondent submitted an extensive submission in the case and attached related documentation, inclusive of a Legitimate Interest assessment in GDPR terms. The Respondent rejected the complainants claim for Constructive Dismissal and submitted that he had resigned on a voluntary basis, the disciplinary procedure adopted in his case was conducted lawfully, reasonably in line with the respondent procedures and in keeping with Natural Justice. The Complainant had found new work. The Respondent submitted that the complainant resigned on 29 September 2020 and left following 4 weeks’ notice. The Respondent outlined those issues arose surrounding the complainants conduct in August 2020. The Company had concerns surrounding alleged unprofessional conduct on behalf of a reseller. An Investigation involving the complainant occurred on 24 August 2020. The Complainant was offered the facility for representation but attended alone. This concluded that there was a disciplinary case to be answered. The issues raised covered a conversation with a customer and an email sent to a reseller some two days later in August 2020. A Disciplinary hearing followed on 24 September 2020, where the Complainant was represented. Later that day, the complainant offered his resignation. The Disciplinary outcome meeting was held on 6 October 6, 2021, where the complainant was placed on a written warning in respect of his conduct. He was afforded a right of appeal, which he did not exercise. The Respondent submitted that the Complainant had been treated reasonably in the face of genuine concerns regarding his conduct. The Disciplinary procedure was managed fairly and with regard for the parameters of SI 146/2000, Code of Practice on Disciplinary matters. The investigation and disciplinary hearing were separate and distinct and covered by different Managers. The Respondent argued that the complainant had not exhausted all internal procedures prior to his resignation and did not exercise the pro-offered appeal of the written warning applied. The Respondent disputed that the disciplinary process had been delayed. Prior to commencing the formal disciplinary procedure, the Respondent carried out a comprehensive data privacy assessment in order to satisfy itself that it had a legitimate interest in processing the 15 August email sent by the complainant to the reseller. The Respondent confirmed that the complainant had not been dismissed. The Complainant had failed to identify any conduct by the Respondent that could amount to a breach of his contract. The case should be dismissed. Issues raised by the Complainant surrounding GDPR had been addressed by the Respondent. On the Hearing Day, the Respondent submitted that the Complainants direct team Manager was not available. Ms A, Senior Manager, who managed the Disciplinary meeting gave evidence to attest to the fairness of the Disciplinary process. Evidence of Ms A, Senior Manager. Ms A told the hearing that that the complainant had been informed that no decision had been made on a Disciplinary outcome when he gave notice. She was unsure of that date of that exchange and undertook to provide details post hearing. The Complainant had been provided with all documentation pertaining to the activation of the Disciplinary procedure. She recalled that the Disciplinary outcome reflected that the company policy had not been breached. The Complainant had however, acted unprofessionally during the telephone call. The Complainant had reacted badly to this news. During cross examination, the complainant questioned the occurrence of the meeting referred by Ms A, who did not answer. He was unaware that that Ms A knew he was leaving during the outcome meeting of Oct 6. Ms A told him that all matters, inclusive of GDPR were addressed at the Disciplinary outcome meeting on October 6. He reminded Ms A that he had told her that he had found a new role. In conclusion, the Respondent reaffirmed that there was no evidence that the company acted in fundamental breach of the complainant’s contract. He argued that there was no evidence that the complainant had been driven out of the company. The Respondent pursued a legitimate concern on the actions of an employee through a reasonably conducted disciplinary procedure. The Complainant was not dismissed. GDPR issues had been addressed. |
Findings and Conclusions:
I have been requested to inquire into the circumstances of this claim for Constructive Dismissal by the complainant, which is disputed by the respondent, who has submitted that the resignation occurred on a voluntary basis and in pursuance of new work found. In reaching my decision, I have considered all written and oral submissions in addition to evidence adduced. In this case, the burden of proof rests with the complainant to demonstrate that his resignation was not voluntary. The legislative framework for reaching a decision in this case is found in section 1 of the Unfair Dismissal Act, 1977 (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, I have given a lot of thought to the circumstances as presented by both parties. There is some dispute on the actual date of resignation. The Complainant submits 2 October, and the Respondent submits 29 September 2020. The extract of paper I received in the form of a resignation is undated in origin and cites the effective date of termination as 31 October 2020, a fact, both parties agreed with at hearing. I resolve the resignation date to be October 2 as advanced in the complainants own evidence. I will return later to the circumstances surrounding the management of this resignation by both parties. The facts of this case evolved from the pursuance of an investigation into concerns surrounding the complainants conduct through his interaction with a reseller and in a conversation with a customer involving reference to that reseller in August 2020. It is important to reflect the Complainant was employed as a Home-based worker (remote worker) in 2014 and had agreed to the following contractual clause on Monitoring at that time. The Company reserves the right to monitor your calls, emails, chat, conversations and computer desktop, while working as X and the Company will exercise this right from time to time in its sole discretion A clause on Data Protection was also incorporated in the contract of employment.: You understand and agree, where it is reasonably necessary for the company, for the purposes of your employment or for compliance with the company’s contractual, statutory, management or other similar obligations, the Company or any other authorised person appointed by it on its behalf may process personal data or sensitive personal data relating to you or your employment with the company. The Respondent had formed a view that issues had arisen with the complainant’s interaction with 1 The Reseller 2 A customer of that reseller who had sought service from the respondent The Respondent placed the complainant on notice of these concerns on 21 August 2020 when he was invited to attend an investigation on 24 August 2020. The complainant attended alone. In his evidence he expressed a view that the Investigation would be manageable for him, only to change his mind in the aftermath. I was surprised that the complainant did not avail of the invitation extended at investigation to produce witnesses. I accept that he presented “details of chat “in what appears to be a pre-existent cultural awareness of a service issue with the reseller which had not yet been resolved by the respondent. It is of note that the reseller is reflected as being a valuable customer of devices for the respondent. I found no effort at local management of this issue prior to activation of the Investigation meeting on 21 August. The incidents complained of occurred on 13 and 15 August respectively. I would have thought that those extracts from a chat thread would have prompted further teasing out by the complainant or further probing by the respondent investigator. Instead, from a careful review of the investigation minutes pre and post amendment, I established that the company seemed solely concerned with the actions of the complainant. It is of note that one of the allegations raised occurred from the complainants personal email ,while logged off from the respondent IT system . The second occured during the course of his work at the company . I did not have the opportunity to meet with the Investigator or the Team Manger in this case. An investigation report concluded that the complainant had a case to answer and proceeded to Disciplinary hearing on September 29. References to 24 September by the Respondent are misplaced and omit to reflect an earlier amended time. The Complainant submitted that he began to experience a “coldness “in the workplace during this interlude. He equated this with his perception that the company wanted rid of him. When asked to substantiate this in evidence, he did not tender evidence outside of an ever present “feeling “of isolation and not being asked to work outside his role. The Complainant resigned during this period i.e., on October 2, 2020. This is a key consideration for me as it occurred not on the completion of the disciplinary procedure on October 6 by means of a written warning, but in the aftermath of the Disciplinary hearing on September 29 and before any decision on his fate had occurred. Throughout the case, the Respondent has emphasised the correctness and fairness in application of the disciplinary procedure, which could not on any reasonable interpretation reflect grounds for constructive dismissal, involuntary termination of employment. I appreciate that the Respondent held a genuine concern regarding the integrity of the business relationship with the reseller. I accept that they sought to limit any potential for damage to this business relationship when the decision was made to investigate the matter. However, an early email from the respondent which was copied to the complainant’s line manager and investigation Manager on August 21 seemed to definitively clarify the action to be taken when a customer of the reseller sought a warranty update from the customer service team. I have also noted the Complainants stated lack of faith in the need for an investigation first in time. He marked the timing of the disconnect with his employer as following the investigation and his stated concerns, that a communique sent from his private email address, while the company computer was on logged out status could find its way back to him via reseller and via the respondent. He highlighted a concern about the processing of his personal data and non-adherence to GDPR. He submitted that this concern was never resolved by the company and remained as an open GDPR case in France. The Respondent has contended these matters have been addressed in full. This prompted me to consider aspects of the early assembly of the allegations contained in the invitation to attend the investigation dated 21 August 2020. The prologue to the investigation. The GDPR, General Data Protection Regulations EU 2016/679, were enacted in Irish Law as Data Protection Act, 2018. Data protection is a fundamental right set out in Art 8 of the EU Charter of Fundamental rights. In order to process personal data organisations must have one of 6 lawful reasons as provided in Art 6 of GDPR 1 consent 2 carry out a contract 3 in order for organisation to meet a legal obligation 4 where processing the personal data is necessary to protect the vital interests of a person 5 where processing the personal data is necessary for performance of a task carried out in the public interest 6 in the legitimate interests of a company. Organisation (except where those interests contradict or harm the interests or rights and freedoms of the individual). I note that the complainant’s contract had not been amended to reflect the changes in the legislation. The Respondent has submitted a copy of the legal assessment template in addition to the legal approval secured in respect of processing the complainants’ personal data. I have established that this document is dated August 20 ,2020. The date of the completed data processing approval was recorded as Sept 9, 2020, some two weeks after the investigation and some 3 weeks before the Disciplinary hearing. The document confirmed that the complainant was “alive” to the realms of GDPR. I was disappointed to see that the respondent had obviously advanced the processing of personal data without pre-clearance at Investigation stage. The Complainant had raised this during the investigation and had reflected he had not been heard. I also noted that the respondent appears to have given a commitment to investigate the GDPR issues raised by the complainant at investigation, but no findings or conclusions were ever recorded or shared at hearing . I was also surprised to find that the respondent presented the application on the sole reliance on the need to process the data around the email to the Reseller, as without it, they contended, there was no other evidence of wrongdoing against the complainant. For my part, I found this disingenuous as the respondent clearly had access to the recorded customer call in transcript formation (August 13) at that point. For me , the measures taken by the respondent strayed outside the contractual terms on acceptable levels of surveillance highlighted earlier . For me, these actions constituted a breach of the implied terms of employment of trust and confidence, that serve as the veritable foundation of the contract of employment. This breach went to the root of the contract. I understand that the respondent exhibited this detail as confirmation that the company had followed the necessary steps in seeking legal approval for data processing, however, I found this to be a retrospective application in response to the complainants points at investigation. It did not pay heed to the complainants stated concerns regarding his lack of consent to releasing his personal data, as a data subject within the confines of the investigation or beyond. The Complainant explained that he felt very afraid when informed that his employment was at risk repeatedly. As stated, the complainant bears the burden of proof in this case to establish either through the contract test or the reasonableness test that he had no option outside resignation in early October 2020. He had not received the document dated 20 August/ Sept 9, 2020. The contract test was summarised by Lord Denning in Western Excavating (ECC) ltd v Sharp [1978] ICR at 226 Is the employer guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance I have established that the actions of the respondent constituted a repudiatory breach of contract. I note that the complainant stayed on many weeks post ventilation of his concerns on the release of his personal data. This is an unusual presentation in a claim for constructive dismissal as departure is frequently swift and proximate to the alleged breach. I can understand that the complainant engaged in the disciplinary procedure, which ran in parallel with the GDPR issue and concluded without appeal on October 6, 2020. I ascertained that he began to look for new work on conclusion of the initial investigation. He told the hearing this was prompted by a breach of trust, where what he considered had been a live team issue had come to rest on him alone. He confirmed that he felt targeted by the respondent but did not give evidence outside his expressed concerns on GDPR and not being heard on this. He did submit details of being afraid for his continued employability with the respondent and this prompted him to seek and find new work. I find that the Respondents processing of the complainants’ personal data without apparent preclearance or complainant consent demonstrated a serious departure from the trust and confidence enshrined in a contract of employment. It was unreasonable and did not comply with the contractual provision on data protection. I am satisfied that it served as the main reason for the complainant’s resignation. The Complainant was unable to cure the level of exposure he felt following his submissions on the use of his personal data and the lack of a promised investigation. I have noted that the respondent presided over the pillars of a robust investigation and disciplinary procedure. It was clear to me that the complainant engaged in this process and displayed a high level of insight that his phone communication had been unprofessional and there was room for improvement in his actions regarding “going under cover “with the reseller. It is regrettable that the employment relationship was not capable of salvage, even at that late stage. I noted the complainants stated relief that the respondent applied a written warning as opposed to his predictions for a more severe sanction. He did as the respondent rightly emphasised, accepted this outcome, without appeal. I found the management of the resignation to be excessively loose on both sides. The resignation itself reflected: As discussed earlier, I would like to tender my resignation as Agreement=Admin advisor effective 31 October 2020. Could you please advise on how to return my equipment? Best regards X This submission did not reflect any stated reasons for leaving or organisational intervention. It seemed to rest in a vacuum. I did request some detail from Ms A when she told the hearing that the complainant had been informed that no decision had been made in his case when he resigned. I did not receive this detail. For a time in this case, I formed the view that the complainant had panicked, jumped the gun, and then acted precipitously in his resignation. I initially thought that he had tried to navigate outside procedure and forsaking the enabler of the company grievance procedure. However, I have been overtaken by my analysis of what occurred at the building blocks stage of the allegations in August 2020. This preparatory work is very important in any disciplinary procedure and I found this stage fell far short of best practice, which in time went on to taint an otherwise well conducted disciplinary procedure . I have also maintained a residual unease regarding the presence of the notetaker in the disciplinary hearing at the application for legal clearance on 20 August 2020. This person was not available to me at hearing, but the parties confirmed her presence at the disciplinary hearing. I have found that this dual presence formed a flaw in the procedural framework as the application for legal clearance attributed to two named employees assessed the complainant’s approach to GDPR at a very early stage but did not revisit it. I still hold the view that the complainant erred in not raising a grievance regarding his dissatisfaction on data protection issues. I accept by then he had decided to leave and was seeking a stable job to support his family. I do not accept his submission that the issues raised by the respondent were not worthy of investigation/ disciplinary action. There were serious commercially sensitive issues raised by the respondent. I found it regrettable that nobody attempted an informal resolution at team level prior to activation of formal procedures. However, I have found that the methodology of the compilation of the dossier of allegations formulated by the respondent had a catastrophic impact on the complainant. He had a 6-year unblemished employment record with aspirations for career advancement. I accept his evidence that he had lost trust in his employer. I have found that the Complainant acknowledged that he made mistakes and errors of judgement in the course of his work with the reseller connections. However, his fundamental right to trust and confidence in his employer was completely eroded following their raising of personal data without apparent real time authorisation. The data was used to ground the basis for first an investigation and then a disciplinary procedure without following through on a stated commitment to investigate this communication thread at investigation stage. I have found that given the undisputed longevity of employment, the complainant deserved a more careful approach. I have found that the respondent did not engage once his resignation was received. I have found that on this occasion, the complainant has managed to attain the high bar associated with the burden of proof in this case. The complainant was constructively dismissed. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have found that the complainant was constructively dismissed. I find compensation is the only practical remedy open to me in this case. The Complainant found work virtually immediately on his termination of employment. He told the hearing; he has sustained a differential of income at the rate of €300 nett per month. In accordance with Section 7 of the Act, I order the respondent to pay the complainant €4,500 in compensation for prospective loss in respect of the unfair dismissal. This covers 12 months of differential in earnings.
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Dated: 14th September 2021
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Constructive Dismissal |