TED2311

1.Appeal of Adjudication Officer Decision No(S) ADJ-00026583 CA-00034794-002

BACKGROUND:

2.The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 31 August 2022 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2014. Labour Court hearings took place on 14 and 15 February 2023 and on 21 June 2023. The following is the Decision of the Court:-

DETERMINATION:

This is an appeal on behalf of SEDA (Skills & Enterprise Development Academy) Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00026853/ CA-00034794-002, dated 2 August 2022) under the Terms of Employment (Information) Act 1994 (‘the Act’). Notice of Appeal was received on 31 August 2022. The Court heard the appeal along with five other related appeals over three days: 14 and 15 February 2023 and on 21 June 2023.

The originating complaint under the Act was received by the Workplace Relations Commission on 23 February 2020. It follows that the period comprehended by the complaint is 24 August 2019 to 23 February 2020.

Factual Matrix

The Complainant is a Colombian national. In 2016 she came to study English at the Respondent language school. On completion of her course, she undertook an internship with the Respondent and commenced employment there on a part-time basis in October 2016. The Complainant’s initial appointment was in the marketing and sales department. She was paid an hourly rate of €9.15 plus commission on sales. The commission element only became payable when a student had paid in full for their course.

The Complainant assumed a full-time role with the Respondent as a Receptionist in September 2018. She continued to perform sales for a number of months thereafter also. The marketing element of her role was discontinued in September 2019 when the Respondent hired a full-time employee in that role.

On 2 February 2020, the Complainant submitted a number of statutory complaints against the Respondent to the Workplace Relations Commission. She initiated complaints under the Payment of Wages Act 1991, the Terms of Employment (Information) Act 1994, the Employment Equality Act 1998 and the Protection of Employees (Fixed-term Work) Act 2003. The Respondent was notified by the Workplace Relations Commission of those complaints on 7 February 2020.

The Complaint was on a period certified sick leave in February 2020. On her return to work on 12 February, the Complainant discovered that she no longer had access to her marketing email account. The Respondent’s explanation for this is that it had been unable to make contact with the Complainant during her sick-leave; as Receptionist, the Complainant had unique access to certain information systems linked to her email address that was password protected; the Respondent was forced to request IT to change the access details to her email account in order to obtain information that was urgently required to assist students in their application to extend their visas etc

Separately, the Respondent had a number of concerns arising from the reasons given by the Complainant for her certified sick leave. It had been indicated on the Complainant’s medical certificates that she was suffering from work-related stress. Management, therefore, considered that it would be appropriate to engage with the Complainant on her return to work in relation to her workload to determine if she needed additional supports. The Head of Operations, Mr Stephen Murphy sent the Complainant an email at approximately mid-day on 12 February 2020 inviting her to a meeting on 18 February 2020 to review her workload.

It is common case that the Complainant printed a considerable volume of documents on a small printer behind the reception desk throughout the day on 12 February 2020. This was observed by a colleague in the finance department who had reason to go to the stationery store which is behind the reception desk. He told members of management about the level of printing that the Complainant was doing. It appears most large printing jobs in the college were done on heavy duty printers on the second floor. Mr Murphy and Mr Mascarhenas, the Respondent’s CEO, were able to observe this activity from a balcony overlooking the atrium in which the reception area was located. Later that day, Mr Murphy and Mr Mascarhenas approached the Complainant at the reception desk and asked her what she was printing off and placing in her handbag. She gave them permission to look at the printed documents and it was apparent that the documents contained a significant amount of personal data in relation to many of the Respondent’s students. In his evidence, Mr Mascarhenas told the Court that given the unusual nature of what he had observed he felt it necessary to obtain legal advice before deciding what to do next. Having got that advice, he requested Mr Murphy to organise a meeting with the Complainant for 4.15 pm that afternoon to discuss why she had printed off the Respondent’s information and placed it in an envelope in her handbag. Another colleague, Ms Jane Langley was requested to ask the Complainant to attend a meeting at that time with Mr Murphy and Mr Mascarhenas. The Complainant declined to attend the meeting and left her workstation to go outside to make a telephone call. She returned at approximately 4.35 pm and went to see Mr Mascarhenas on the second floor of the building to advise him that she would not be attending the meeting because she hadn’t been given the agenda for it, wasn’t advised of her right to be accompanied and it was by that stage outside her working time. Later that evening, Mr Murphy wrote to the Complainant by email advising her that her employment had been suspended pending an investigation.

In his evidence, Mr Mascarhenas told the Court that it had also come to his attention around this time that the Complainant had been accessing her work email account and forwarding work emails to her personal email account while on sick leave and not answering his emails or telephone calls to her. According to Mr Mascarhenas, although he was aware that correspondence had arrived from the Workplace Relations Commission on the 7 February 2020, notifying the Respondent of the Complainant’s statutory complaints, he was unaware of the detail in relation to those complaints. He told the Court that 7 February 2020 was a Friday and, as the Respondent had never previously been the subject of complaints to the Workplace Relations Commission, he had forwarded the correspondence to the Respondent’s solicitors and had not had a detailed consultation with them prior to the events of 12 February 2020.

Submissions

The Complainant submits that her “unjust suspension from employment” occurred in such close proximity to her submission of a complaint under the Act to the Workplace Relations Commission on 7 February 2020 that it follows that there is “a direct connection” between the complaint and her suspension” such that the suspension constitutes penalisation within the meaning of section 6C of the Act.

It is the Respondent’s submission that the Complainant’s employment was suspended on 12 February 2020 as a direct result of her actions on that day i.e. printing off and placing in her handbag copious amounts of company documents that contained a significant amount of students’ personal data. Both Mr Murphy and Mr Mascarhenas’s evidence was that the notification from the Workplace Relations Commission received on 7 February had no influence on the decision they made to suspend the Complainant.

Discussion and Decision

The witnesses for the Respondent accepted in answers to questions from the Court that the manner in which they handled the events of 12 February 2020 was not in accordance with best practice, particularly their attempts to secure the Complainant’s attendance at a meeting on short notice, their failure to inform her of the purpose of the meeting and to advise her of her right to be accompanied at the meeting. Mr Murphy’s correspondence to the Complainant also on that date informing her of her suspension and of his pre-determined decision to proceed to a disciplinary hearing before any investigation had even been commenced, in the Court’s view, was not of a standard one would expect from an experienced and professional human resources practitioner.

However, poor practice in the conduct of disciplinary proceedings in and of itself does not constitute penalisation. The Court does not understand why the Complainant was of the belief that she was entitled to avail herself of vast amounts of confidential information, the property of the Respondent, that contained personal data of the Respondent’s students. The Court is satisfied that the actions taken by the Respondent that culminated in the suspension of the Complainant’s employment on 12 February 2020, however ill-judged, were as a consequence of the Complainant’s own actions on that day as well as her actions in forwarding company emails to her private address during her absence on sick leave. No evidence has been adduced to establish that the Complainant’s suspension and the initiation of disciplinary action against her was linked in any way to her earlier referral of a complaint under the Act to the Workplace Relations Commission.

The appeal, therefore, succeeds and the decision of the Adjudication Office is set aside.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
CO'R	______________________
19 July 2023	Deputy Chairman