FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : INFOSYS LTD (REPRESENTED BY MS. ALISON FYNES B.L. INSTRUCTED BY LEWIS SILKEN IRELAND) - AND - MR TABISH SHAHID SHAIKH DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00025673 CA-00032661-001. The Court ruled in UD/21/21 that there was a valid appeal before it under the Unfair Dismissals Act, ‘the Act’. Mr. Shaikh, ‘the Complainant’, was employed by Infosys in India when he was assigned in November 2018 to work temporarily in Ireland for Infosys Ltd., ‘the Respondent’. This assignment ended on 24 May 2019 and the Complainant’s employment was terminated on 6 June 2019. The Complainant lodged a complaint under the Act with the Workplace Relations Commission on 3 December 2019. An Adjudication Officer, ‘AO’, decided that he did not have jurisdiction to hear the complaint as he decided that the Complainant had at all times remained an employee of the company in India. For reasons set out in UD/21/21 this Court, in dealing with the Complainant’s appeal, accepted that it had jurisdiction to consider the matter. The Court has jurisdiction only in respect of the Complainant’s period in employment in Ireland. The Complainant relied upon a claimed Protected Disclosure to establish an entitlement to be covered by the Unfair Dismissals Act, notwithstanding the fact that he had less than the required one year’s service. Further preliminary matter. In the days prior to the hearing on 7 July 2022, the Complainant submitted an additional submission to the Court, which the Respondent sought the Court to disregard on the basis that such late submissions were contrary to the Court Rules. The Chair. of the Court exercised the discretion allowed to him under Rule 10 of the Court Rules, to accept the submission with an offer to the Respondent to adjourn proceedings, if they so wished, to facilitate them in the provision of time to prepare a response. The representative of the Respondent confirmed to the Court that they were not seeking an adjournment and that they wished to proceed. The issues for the Court. The Court, repeatedly, outlined to the parties that, given the background, as set out above, the only issues for the Court to consider were whether there had been a Protected Disclosure and, if so, whether there had been a causal link between that and the subsequent dismissal of the Complainant. As the case before the Court was taken under the Unfair Dismissals Act and not the Protected Disclosures Act, allegations of penalisation by the Complainant that were said to have arisen prior to the dismissal were not before the Court for consideration, and were outside the six month cognisable period up to 3 December 2019 in any event, except insofar as they could be evidence relating to the dismissal. The summaries of the arguments put to the Court set out below are confined to the matters which the Court was required to consider. Summary of Respondent arguments. The Complainant seeks to argue that he falls within one of the limited exceptions to the required service of one year under s.2(1) of the Act as he claims that because he raised a concern about an alleged security incident in February 2019, he says that he was subject to harassment and retaliation leading to a premature termination of his assignment in Ireland and that he was denied equal opportunities to other assignments in Ireland. This is incorrect. After the Complainant was informed that his assignment was coming to an end in May 2019, his managers continued to look for further opportunities for him in Ireland. The Court is provided with extensive email evidence to support this fact. The end of the Complainant’s assignment arose because the client no longer had billability requirements for the role performed by the Complainant on the particular project in Ireland. The assignment end date was moved forward because there was a significant decline in the Complainant’s performance after he was notified of the assignment end date. His employment was terminated ultimately because he failed to follow repeated instructions to communicate with his managers to confirm his travel arrangements back to India. There was no harassment, retaliation etc against the Complainant for an alleged security incident or otherwise. The Respondent submits that the alleged security incident is not, in fact, a security breach incident, as alleged. One of the IT applications, ‘SPLUNK’, monitors other applications and logs errors, visible only to the relevant team. It appears that SPLUNK was collating additional information not required by the team. This was noted and remedied. In no way did this amount to a security breach. There was no compromising of application security, the information was not published on any web portal and was not widely accessible as the Complainant appears to imply. The Complainant’s manager, Mr. Ganeswaran, can confirm that the Complainant never raised this matter with him nor did he ever raise any allegations of harassment. It is notable that the incident and allegations of harassment did not form any part of the original WRC complaint and were never raised prior to the termination of the Complainant’s employment. There is no guarantee of the length of any assignment, they are always subject to the needs of the client and the decision to end the Complainant’s assignment was in accordance with normal practice and in accordance with the letter of assignment which specified that the period would depend ‘on the specific requirements of the project’. The Complainant was notified in March 2019 that his assignment was ending and that he could continue working in Ireland until 30 June 2019, so that he could make arrangements before travelling back to India. The Complainant alleges that the Respondent created a Knowledge Transfer, ‘KT’, issue, while misrepresenting facts, and terminated his employment early. This is completely denied. After the Complainant was advised that his assignment was ending, there was a substantial decline in his performance. There was a lack of engagement in the team, a failure to respond to application production on-calls and failure to provide knowledge transition to a newly recruited employee. Once the Complainant was notified of the end of his assignment, he failed to participate in a KT plan for a new staff member. A chain of emails between the Complainant and managers is provided to the Court. It is clear that, on occasions, the Complainant was not responding to calls. As a result, the Complainant was warned that his assignment could be cut short. The Complainant’s claim to be working alone and, thus, unable to take the time to deal with these matters is untrue. Due to the Complainant’s conduct, he was notified that his assignment would end on 24 May 2019. He was asked to arrange his travel back to India through the company I-travel facility. He failed to do so and the matter was escalated to HR. In this period, the Complainant was advised that his profile had been shared to determine if there were other opportunities for him in Ireland but none could be identified. HR advised the Complainant that if he did not arrange his travel, his salary would be stopped and his employment could be terminated. In spite of repeated requests, the Complainant failed to engage in order to confirm his travel plans. Email correspondence is provided to the Court. This culminated in the Complainant being informed that if he did not confirm his travel plans by 6 June 2019, his employment would be terminated. The Complainant finally replied late on 6 June 2019, claiming that he had encountered an issue with the system when he had tried to raise a travel request on 24 May 2019 and there were actions for a manager to conclude. HR advised the Complainant that he had been ‘AWOL’ for too long, that his failures to respond were unacceptable and that if I-travel was not possible, he must produce evidence of his flight for 7 June 2019 by 17.30 or else his employment would be terminated. The Complainant responded to say that he had requested leave from a manager. HR reiterated its request and when no response was received, the Complainant was issued with notice of termination of his employment. The Complainant exercised his right of appeal. This appeal was conducted by Infosys India and not by the Respondent. The dismissal was upheld. Without prejudice to the position of the Respondent that there was no Protected Disclosure; that the Complainant was not dismissed for having made a Protected Disclosure and that, as a consequence, the dismissal is not covered by the Act, re-instatement or re-engagement could not be appropriate in this case as the employer is Infosys India and the Complainant no longer has permission to work in Ireland. Any consideration of financial loss, if any is deemed to arise, should be limited to any loss between 24 May 2019, when the assignment ended, and 30 June 2019, the original end date. Summary of Complainant arguments On 11 February 2019, there was a security violation and the Complainant shared his concerns with his manager. Information that should be visible only to the client was published on a portal, to which others had access. By alerting his employer to this matter, the Complainant made a Protected Disclosure. In March 2019, the Complainant was asked to re-submit his previous year’s appraisal. In May 2019, the Complainant was told that his assignment would end in May and not 30 June. In May also the Complainant was excluded from KT sessions. Then the Complainant was expected to take on KT, while he was working on his own, on top of multiple deliverables. The Respondent’s clients were advised that the pre termination of the assignment was due to ‘disciplinary action’. The termination was a breach of the contract/agreement. The Complainant tried to follow the travel back procedure on 24 May 2019 but the system kept giving errors as the assignment end date had passed. Approval was needed to breach the 14 days’ travel policy as the travel date of 7 June 2019 was less than 14 days from then. This required action by the Complainant’s manager, which was never forthcoming. Despite the Complainant explaining the situation, HR terminated the Complainant’s employment. This was completely unreasonable. The Complainant attempted to follow the company process. The Complainant had outstanding annual leave but was not allowed to avail of it. The deputation letter and Infosys termination policy require 3 months’ notice of termination, which was not followed. Following the Protected Disclosure, the Complainant was subjected to harassment, as outlined, and was dismissed by the Respondent for having made this disclosure. Witness evidence. Mr. Bharathiselvan Ganeswaran. The witness was the Complainant’s manager while he worked in Ireland and gave evidence on behalf of the Respondent. The witness explained that, in the time concerned, he was a Delivery Manager for the Respondent. The witness explained that it was a regular occurrence that SPLUNK showed up unwanted information and that it was an ordinary conversation within the team as to whether information was wanted or not. These were just operational discussions and only those on the team had access to SPLUNK. The witness said that he did not recognise the reference to a web portal as SPLUNK is an internal system. The witness had no recollection of an issue being raised with him by the Complainant in February 2019 and noted that there could be hundreds of similar conversations. Further, he denied ever receiving any complaint from the Complainant regarding any alleged retaliation. He noted that the Complainant and the team seemed to work well and get on well together. The witness accepted that it was not the Complainant’s job to monitor security but that common sense would suggest that if he noticed something wrong, he ought to report it and this was a normal feature of his role. The witness said that the client identified their requirements and he had six weeks to make arrangements. As a result, the Complainant had been entitled to be given six weeks’ notice. There was nothing unusual about what had happened and the letter of deputation provided for it. The Respondent wanted the Complainant to continue to collaborate from India but he had gone ‘AWOL’ and the off-shore manager could not even contact him to ensure a knowledge transfer to other staff. As a result, there were team members sitting idle and there were potential problems with the client. The witness said that when he did get to speak to the Complainant, the latter was upset but said that he was now ok. However, he then became unreachable again. Eventually, the witness contacted HR. The witness denied that the Complainant was required to work alone and noted that he was part of a team. The witness said that if SPLUNK was published outside, it would look cryptic. Under cross examination, the witness reiterated that the first he knew of the Complainant’s claim to have raised a security concern was when he saw this in the Complainant’s submissions in this process. The witness agreed that alerts about concerns could go to other teams, some of which would include staff of the client and that some other teams would have the same access to SPLUNK. The witness denied that staff allocations were quarterly or half yearly and noted that they were determined by business considerations. In response to a query as to why there was an email to say that material should be deleted, the witness said that this happens all the time and that data is often cleaned up. The witness said that auditors would have access to relevant information. The witness said that the Complainant’s attendance after March was inconsistent. He was unable to give specific dates for non attendance when challenged by the Complainant who also noted that his LUAS ticket showed daily trips to his workplace. However, the witness referred to the Complainant’s inaccessibility to the clients. When it was put to the witness that, in April, the Complainant received appreciative emails from the client, the witness could neither confirm nor deny. The witness denied ‘singling out’ the Complainant and noted that 2 colleagues encountered difficulties in contacting him. The witness agreed that the Complainant had noted his exclusion from a KT meeting and said that he, the witness, had sorted the matter. The witness denied that, subsequently, the Complainant had been excluded from these meetings. The witness agreed that the issue with Splunk could make information accessible to client employees. The witness said that after there had been difficulties in contacting the Complainant, the witness had spoken to him and the Complainant had said that he was upset about being sent back to India but had promised to do better. However, problems had continued. The witness said that no decision had been taken to ‘roll off’ the Complainant but that the decision was to continue his involvement ‘off shore’. The witness said that there had been no communication from the client regarding billability. The witness said that the issue with Splunk was a standard, normal matter in the life of an analyst. It was not a security incident. There was no reason to put it under any carpet. He accepted that the matter could be critical for the client but said that it was not a problem and that all could learn from it. The witness said that he did not know if the Complainant had ever been in trouble previously in his employment with the Respondent. In reply to questions from the Court, the witness described the triage and help desk systems and said that he did not regard the matter in question as a security incident. The witness said that he was not aware of the specifics in the deputation letter and that one other member of the team had also returned to India and was leading the team there now. The witness confirmed that the Complainant could have returned to India and applied for another deputation. The witness confirmed that all IT staff would be expected to advise of any risks encountered. The witness said that no issue of alleged retaliation or harassment had been raised with him. The witness said that client staff were cleared to see any information that might have been revealed. On re-direct, this latter point was clarified that it was not all staff of the client but just those supporting the team. He confirmed that all staff on the project were subject to non-disclosure agreements. Mr. Tabish Shaikh Mr. Shaikh is the Complainant. The witness affirmed that the contents of his submission were a truthful account of events. Under cross examination, the witness agreed that he had experience of using IT to monitor for errors and that Splunk was an advanced tool to support payment processes. He agreed that it was a read only tool The witness agreed that he had signed a non disclosure agreement. The witness denied that he knew that what he reported was not a security breach that was so unimportant that it did not need to be documented. He said that he had spoken to his manager, for which he suffered retaliation. When email correspondence was displayed that was said to show that his manager was looking to see if the witness could be accommodated with other roles and he was asked if he accepted this, the witness replied that he ‘could not say’. The witness referred to being ‘on bench’, which meant that he could not access other roles. When it was put to him that this occurred after there were issues with him in June, the witness said that there had never been a willingness to find him another project. When asked why his complaint to the Workplace Relations Commission had made no reference to an alleged protected disclosure, the witness said that the form had been completed by his solicitor. The witness denied knowing that he had not made a protected disclosure. When asked why he had not responded to a series of emails from his managers, the witness said that he regarded them as part of the harassment that he was experiencing. He said also that he was working alone. When it was put to him that he was part of a team, he accepted that but explained how busy he was. He said that he had told his managers in work calls and that he had tried to resolve the matters verbally. He said that since he made the protected disclosure, every attempt had been made to rule him out of the project. He believed that his managers were colluding to send him off shore, which was more profitable. Email correspondence between managers that appeared to show a decline in performance was said by the witness to have been a created issue. The witness said that he was too busy to deal with knowledge transfer. The witness said that he may not have seen emails about his travel arrangements. He said that he did answer a call on the matter. He denied getting emails and calls to which he did not respond. The witness agreed that he had appealed the dismissal in India and that it had been upheld but said that the correct process had not been followed. The witness said that he had been unable to obtain work since his dismissal and that for the first 1.5 years he had made up to 150/200 job applications per day. He had not now applied for many months. Under questioning from the Court, the witness said that protected disclosure was not mentioned in his complaint because he was not in Ireland at the time and that he had since submitted a complaint against his solicitor. He said that he had not responded to manager concerns because of fear of repercussion. The witness said that the information revealed by Splunk was not supposed to be seen by anybody except team members. Legal discussion. The Complainant raised the question of his service with Infosys India, in order that it might be taken into account for the purposes of determining coverage under the Act. The Court referred to its Determination in UD/21/21 that the Complainant’s period while employed and living in Ireland is covered by the Act but that all employment outside of Ireland is outside of the jurisdiction of the Court. The applicable law. Protected Disclosures Act 2014. Protection of employees from dismissal for having made protected disclosure 11. (1) The Unfair Dismissals Act 1977 is amended— (a) in section 1 by inserting the following definitions: “ ‘protected disclosure’ has the meaning given by the Protected Disclosures Act 2014; ‘relevant wrongdoing’ has the meaning given by the Protected Disclosures Act 2014;”; (b) in section 6 by inserting the following paragraph after paragraph (b) of subsection (2): “(ba) the employee having made a protected disclosure,”; (c) in section 6 by inserting the following subsection after subsection (2C): “(2D) Sections 3 and 4 do not apply to a case falling within paragraph (ba) of subsection (2) and that paragraph applies to a person who would otherwise be excluded from this Act by any of paragraphs (a) to (c) and (e) to (k) of section 2(1).”; (d) in section 7 by inserting the following subsection after subsection (1): “(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.”; and (e) in section 7 by inserting the following subsection after subsection (2A): “(2B) Where— (a) the dismissal of an employee results wholly or mainly from the employee having made a protected disclosure, and (b) the investigation of the relevant wrongdoing concerned was not the sole or main motivation for making the disclosure, the amount of compensation that is just and equitable may be up to 25 per cent less than the amount that it would otherwise be.”. Protected disclosures 5. (1) For the purposes of this Act “protected disclosure” means, subject to F1[subsections (6) and (7A)] and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10. (2) For the purposes of this Act information is “relevant information” if— (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in connection with the worker’s employment. (3) The following matters are relevant wrongdoings for the purposes of this Act— (a) that an offence has been, is being or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, (f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur, (g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or (h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed. (4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory. Protected disclosures 5. (1) For the purposes of this Act “protected disclosure” means, subject to F1[subsections (6) and (7A)] and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10. (2) For the purposes of this Act information is “relevant information” if— (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in connection with the worker’s employment. (3) The following matters are relevant wrongdoings for the purposes of this Act— (a) that an offence has been, is being or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, (f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur, (g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or (h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed. (4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory. (5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer. Unfair Dismissals Act 1977-2015 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. (2) Without prejudice to the generality of subsection (1) of this section, 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 or more of the following: (ba) the employee having made a protected disclosure Prohibition of victimisation of employee by employer. 36. — ... (2) Dismissal of an employee in contravention of subsection (1) shall be deemed to be an unfair dismissal of the employee within the meaning and for the purposes of section 6(1) of the Unfair Dismissals Acts, 1977 to 1993 (but without prejudice to sections 2 to 5 of the Unfair Dismissals Act, 1977, except that it is not necessary for the employee to have at least one year’s continuous service with the employer and that Act shall apply as if the Worker Protection (Regular Part-Time Employees) Act, 1991, were repealed in relation to the number of hours an employee is normally expected to work for the purposes of that Act) and those Acts, with the necessary modifications, shall apply accordingly. Deliberation. The issues for the Court to consider are whether there was a protected disclosure and, if so, to determine if this disclosure led to the dismissal of the Complainant. In UD/21/21 the Court determined that its jurisdiction is confined to the period spent by the Complainant living and working in Ireland. As a consequence, that period being less than the 12 months required for protection under the Unfair Dismissals Act, the Court’s jurisdiction is confined to these two points as it is only if the Complainant is found to have been dismissed due to a protected disclosure having been made that the Court has jurisdiction to rule on the dismissal itself. The Protected Disclosures Act sets out what is ‘relevant information’, which when disclosed might be regarded as a protected disclosure. It is not clear to the Court which of the provisions of s.5(3) of that Act, see above, the Complainant is seeking to rely on as claimed relevant information. In any event, that is moot as s. 5(5) states the following; (5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer. The evidence of Mr. Ganeswaren is that, while it was not a specified requirement of the Complainant’s role, common sense would suggest that when he came across a problem with the IT tool, ‘Splunk’, the Complainant would be expected to bring it to attention, so that it might be rectified. He stated further that this was commonplace, so much so in fact that he did not recall the specific incident on which the Complainant sought to rely. The Court found this element of his evidence to be rational and convincing. Furthermore, the issue concerned was, apparently, a technical issue with the tool itself rather than something that had arisen due to any act or omission of the Respondent. It follows, therefore, that the matter on which the Complainant seeks to rely cannot be regarded as a disclosure of a ‘relevant wrongdoing’ and cannot be regarded as a protected disclosure within the meaning of the Act. Nothing in the Complainant’s evidence or submissions led the Court to the belief that the matter that he raised was, or could be, of such concern to his employer that they felt it to be necessary to dismiss him. It is clear that the matter raised by him was not a protected disclosure within the meaning of the Act and the appeal must fail. It is not necessary to put the matter any further. Determination The Decision of the Adjudication Officer is affirmed.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
