Complainant

Respondent

Parties

David Ryan

Amazon Data Services Ireland Limited

Representatives

Lorna Madden BL

Mary Paula Guinness BL

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-00051167-001

15/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00051979-003

28/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00051979-004

28/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00051979-005

28/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00051979-006

28/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00051979-007

28/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00051979-008

Withdrawn

28/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00051979-009

Withdrawn

28/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00051979-010

28/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00051979-011

28/07/2022

The complainant is a construction cost engineer and he commenced working for the respondent on June 2nd 2020.  He was assigned to work on the construction of a data centre.  Before June 2020, the complainant was a self-employed contractor, through his company, Raiona Contracting Limited (Raiona). 

On February 2nd 2022, following an investigation into his relationship with a project management consultancy, PM Group, the complainant was dismissed.  He claims that there were a number of procedural irregularities in the investigation that ended with his dismissal, that he was deprived of a fair hearing and that his dismissal was unfair.  He is seeking reinstatement and pay in lieu of the fact that he was dismissed without notice.

Chronology Leading to the Dismissal of the complainant

On November 1st 2021, 17 months into his employment with the respondent, the complainant was suspended while an investigation was carried out to establish if he was engaged in an outside activity that could cause a conflict of interest with the respondent’s business.  A copy of the letter of November 1st from Ms Carolyn Kenyon, senior corporate counsel, was provided in evidence at the hearing.  It is apparent from this letter that Ms Kenyon was concerned that the complainant was conducting work for Raiona while he was working for the respondent and that he had used his work email to correspond with his accountant.  In her letter, Ms Kenyon set out her concerns about how the complainant was carrying out his role in the company a cost engineer, and her suspicion that he was not acting in the best interests of his employer.  Ms Kenyon explained the reason for suspending the complainant and invited him to an investigation meeting on November 8th, over Chime, Amazon’s remote internet meeting system.

The complainant attended the meeting on November 8th and Ms Kenyon was accompanied by a note-taker.  The meeting concluded after two hours and resumed on November 10th.  At the opening of the meeting on that day, Ms Kenyon informed the complainant that the scope of her investigation would be extended because other information had come to light.  In her letter to him on November 10th, Ms Kenyon explained that she had concerns that he had disclosed confidential information to a third party and that he had promoted the services of a third party in Amazon, in circumstances where he had an undisclosed conflict of interest.

Two further meetings took place on November 15th and 17th, with the focus of the meeting on November 17th being on the additional concerns which were communicated to the complainant in the letter of November 10th.  Although he was advised of his right to be accompanied, the complainant attended the four meetings on his own. 

Following these meetings, Ms Kenyon had meetings with eight managers who had some association with the investigation or with the complainant in the course of this work, including his line manager, senior construction managers, a commissioning manager, a global partner segment lead for engineering, construction and real estate and the in-house legal counsel who advises the business area in which the complainant worked.

On December 8th 2021, Ms Kenyon issued a report of her investigation.  She concluded that there was evidence to substantiate, either wholly or in part, most of the concerns she had set out in her letters of November 1st and 10th.  She also raised concerns that the complainant had not been honest in his responses to her questions at the investigatory meetings.

A disciplinary hearing was held on January 5th 2022, conducted by Mr Dominic Kelly, senior procurement manager, who was accompanied by Mr Gavin Hilliard from the HR department.  The complainant chose not to be accompanied.  The allegations put to the complainant for his response were:

1.      That he breached Amazon’s Outside Activities Policy and his contract by acting as a director of Raiona Contracting Limited, an active registered company.

2.      That, in his role as a construction cost engineer, he did not act in the best interests of Amazon, in breach of his contract of employment and the company’s Code of Business Conduct and Ethics.

3.      That he disclosed confidential information to a third party, PM Group, in breach of the respondent’s mutual non-disclosure agreement (MNDA) with a customer who was seeking to also become a supplier to Amazon Limited and in breach of his confidentiality agreement and Amazon’s Confidential Information and Non-disclosure Guidelines and Policy.  To protect the identity of this company, I will give it the name “Tech 1.”   

4.      That he breached Amazon’s Code of Business, Conduct and Ethics by promoting internally the services of a third party, PM Group, in circumstances where he had an undisclosed conflict of interest.

Of the above, the allegations numbered 1, 3 and 4 were upheld.  The allegation at number 2, that the complainant did not act in the best interests of the company, was not upheld, but his performance was considered to be below the expectation of a person at his level in the organisation.  In addition, in his findings, Mr Kelly expressed concluded that the complainant was “not wholly honest” during the investigation and at the disciplinary meetings.  Mr Kelly found that the complainant misrepresented information and documentation to absolve his actions.  Throughout the process, Mr Kelly said that the complainant questioned the validity of the customer’s MNDA and his own non-disclosure agreement (NDA).  Mr Kelly concluded that the complainant’s actions constituted gross misconduct and he was dismissed on February 2nd 2022. 

Although he was offered seven days to appeal against his dismissal, the complainant wrote to the respondent on April 4th, setting out a number of grounds of appeal.  A meeting to hear his appeal took place on April 12th, but his dismissal was not overturned.

Copies of the letters sent to the complainant by Ms Kenyon, notes of the investigatory and disciplinary meetings and a copy of the report of December 8th 2021 and the letter of February 2nd 2022 confirming the complainant’s dismissal, were provided to me at the hearing.

On behalf of the respondent, Ms Guinness referred to the decision of the High Court in The Governor and Company of the Bank of Ireland v James Reilly, [2014] IEHC 241, where Mr Justice Noonan stated that,

“…the onus is on an employer to establish substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in Section 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal.  Section 6(7) makes clear that the Court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal.  That is however, not to say that the Court or other relevant body may substitute its own judgement as to whether the dismissal was reasonable for that of the employer.  The question is rather, whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland -v- Lindsay UD EAT/0506/09/DM.  I respectfully agree with the views expressed by Judge Linane in Allied Irish Banks -v- Purcell 2012 23 ELR 189, where she commented (at page 4): references made to the decision of the Court of Appeal in British Leyland UK Limited -v- Swift 1981 IOLR 91, and the following statement of Lord Denning MR at page 93: ‘the correct test is:  was it reasonable for the employers to dismiss him?  If no reasonable employer would have dismissed him, then the dismissal was unfair.  But, if a reasonable employer might have reasonably dismissed him, then the dismissal was fair.  It must be remembered that, in all these cases there is a band of reasonableness, within which one employer might reasonably take one view and another quite reasonably take another view.’  It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view, but to ask was it reasonably open to the Respondent to make the decision it made rather than necessarily the one that the EAT or the Court would have taken.”

The issue of the reasonableness of an employer’s response is well set out in the UK Employment Appeal Tribunal case of Iceland Frozen Foods v Jones [1983] 1 ICR 17, in which, considering s.57 of the Employment Protection (Consolidation) Act 1978, Browne-Wilkinson J, refers to the function of the industrial tribunal as follows:

1.      The starting point should always be the words of Section 57(3) themselves;

2.      In applying this section, an Industrial Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair.

3.      In judging the reasonableness of the employer’s conduct, an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that employer;

4.      In many, though, not all cases, there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;

5.      The function of the Industrial Tribunal, as an Industrial Jury, is to determine whether, in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band, the dismissal is fair: if the dismissal falls outside the band, it is unfair.

Considering the issue of procedural fairness, Browne-Wilkinson J went on:

As an alternative ground relied on by the Industrial Tribunal, namely procedural fairness, as we have said we do not think it is the correct approach to deal separately with the reasonableness of the substantive decision to dismiss, and the reasonableness of the procedure adopted.  The correct approach is to consider together all the circumstances of the case, both substantive and procedural, and reach a conclusion in all the circumstances.”

This approach was followed again in the UK Court of Appeal in Sainsbury plc v Hitt, 2003 ICR 111, where it was held that the Employment Tribunal had incorrectly substituted its own opinion regarding a reasonable or adequate investigation, instead of applying an objective standard.  The Court held that the range of reasonable responses test applied not only to the question of whether the suspected misconduct may have taken place but also the reasonableness of the decision to dismiss and to the reasonableness of the investigation.

In terms of the significance of any procedural issues, the Respondent relies on the test identified by Ms Justice Laffoy in the case of Shortt v Royal Liver Insurance Limited, 2008, IEHC 322 where it was held that,

“…while an employee who is facing disciplinary action is entitled to the benefit of fair procedures, what these will demand depends on the terms of the employee’s employment and the circumstances surrounding the disciplinary action."

Ms Guinness referred to the WRC decision in A General Operator v A Manufacturing Company, ADJ-00017530, where the adjudicator remarked that the requirements of fair procedures vary from case to case and that general principles have been identified over time, by reference to specific issues that apply on a case-by-case basis:

“Where it is suggested that an individual has been deprived of fair procedures, the key criterion for consideration is whether or not the procedural deficit exposed the individual to the risk of an unfair hearing or an unfair result.”

Ms Guinness submitted that, applying these legal tests, there is no basis to uphold the complainant’s suggestion during his appeal hearing that the decision to dismiss him was pre-determined.  The respondent conducted an investigation, a disciplinary hearing and an appeal hearing.  The complainant was informed of his right to be accompanied and he was given an opportunity to respond to the allegations against him.  Before the decision to dismiss him was reached, his position and his replies were taken into consideration.  It is the respondent’s case that, as he was considered to have engaged in gross misconduct, the decision to dismiss the complainant was fair, reasonable and proportionate.

Supplemental Submission

In response to the complainant’s submission which was provided to the WRC shortly before the commencement of the hearing on April 11th 2023, Ms Guinness provided a brief response.

The complainant alleged that he raised a written grievance concerning the quality of the feedback he received at his yearly performance review.  He claims that there was no follow-up to his grievance.  Ms Guinness said that the complainant’s grievance consisted of a conversation with a member of the HR department in which he complained about the “needs improvement” rating he received at this review meeting on March 19th 2021.  The HR advisor suggested that he should speak directly to his manager, or to the next most senior manager.

The next conversation was a dialogue on the company’s Chime system in which the complainant enquired about what was required for him to be promoted.  When the HR department replied, the complainant thanked them for their response.  There was no written grievance that wasn’t followed up, as the complainant alleged.

At his appeal meeting, the complainant said that he found it difficult to get feedback in response to how he carried out his role.  He did not say that he submitted a written grievance and this was dealt with at the appeal meeting.

Evidence of Ms Carolyn Kenyon

Ms Kenyon is senior corporate counsel for the respondent.  Commencing her evidence, she said that Amazon Data Centres Ireland Limited provides computer capability for clients comprising cloud computing, data storage and backup.  Ms Kenyon said that data centres are very expensive to build and, as a construction cost engineer, the complainant’s job was to control building costs and to ensure that the company got the best value for its investment.  He was responsible for assessing bids for specific aspects of the construction project and to ensure that the costs were reasonable.  The complainant is a subject matter expert in construction costs and he held a trusted role in the company.

Referring to paragraph 7 of the letter to the complainant of November 1st 2021, in response to a question from Ms Guinness, Ms Kenyon said that it was a condition of the complainant’s contract of employment that he did not engage directly or indirectly in any business or undertaking which could affect his ability to carry out his role in Amazon. 

Ms Kenyon was asked to look at paragraph 13 of the same letter in which she set out four examples under of her concerns that the complainant had not acted in the best interests of Amazon and to explain what she had written.  Ms Kenyon replied that there was a concern that complainant was getting general contractors to do work in addition to the agreed scope of works without going through a change order request and seeking approval in advance.

Ms Kenyon said that the complainant’s role is to assist the quantity surveyor (QS).  She said that the company had a concern that, rather than engage with the QS, he wanted to run a part of the project himself, the building of a sub-station.  

Under the third sub-heading of this paragraph, Ms Kenyon said that a named sub-contractor was awarded the contract for the mechanical, electrical and plumbing (MEP) aspect of the project, but when they came on site, they sought an increase in the cost they had agreed as part of the tender.  In response, the senior construction manager, Mr Robert Gough indicated that the company would re-tender rather than accept the price increase.  Ms Kenyon said that there was a concern that the complainant supported the MEP contractor’s effort to increase its price and that he did not act in a manner that was most advantageous for the company.

Ms Kenyon said that it seemed that the complainant was trying to manage projects without the involvement of a QS and without adequate oversight.

Ms Guinness referred to the complainant’s company, Raiona.  Ms Kenyon said that employees may have other engagements, but they are expected to work for Amazon and to not be in conflict with Amazon.  Five months after he joined Amazon, Raiona issued an invoice to PM Group for work carried out by the complainant.  Ms Kenyon said she was concerned that the complainant was doing private consultancy work for a competitor or a supplier through Raiona.  She was also concerned that he was using Amazon’s systems to do work for Raiona.  Ms Kenyon said that she suspended the complainant on November 1st 2021 because of a concern about serious breaches of the Outside Activities Policy and the company’s code of business and ethics.

Ms Guinness referred to paragraph 19 of Ms Kenyon’s letter of November 1st in which she asked the complainant if he wished to provide documentary evidence or witness statement in advance of the meeting on November 8th.

Ms Guinness referred to the notes of the investigation meeting of November 8th.  Ms Kenyon said that, at the meeting, the complainant accepted that Raiona was his company, but he said that he didn’t do any work for Raiona since he joined Amazon on June 2nd 2020.  Through Raiona, he worked for PM Group before he came to work for Amazon.  Although he submitted an invoice to PM Group in October 2020, when he was questioned about this, Ms Kenyon said that the complainant replied that he submitted the invoice in October 2020 for work he did before June 2020 because of a change in the VAT rate.

Regarding the complainant’s failure to comply with the change order process for the price increase sought by the MEP contractor, Ms Kenyon said that the complainant denied that he was trying to weaken the cost control measures.  

As part of her investigation, Ms Kenyon conducted what she referred to as a “targeted search for information.”  When she searched for “PM Group” she found an email from the complainant to an Amazon colleague, Mr Chris Bober.  Mr Bober is the global partner segment lead for engineering, construction and real estate.  The complainant sent the email with three attachments to Mr Bober and blind copied the mission critical sector director (MCSD) in PM Group.  The attachments were;

1.      A slide deck;

2.      An email from PM Group’s MCSD to the complainant outlining a proposed composition of a PM team;

3.      An email from the complainant to another company, Tech 1, in which he appeared to inform them that Amazon were not moving forward with Tech 1’s product.  The reason given was a perceived limitation of Tech 1’s product.

Ms Kenyon said that she was particularly concerned to discover that the third attachment was sent to PM Group because, in her view, the perceived limitation in Tech 1’s product was information that was confidential to Amazon.  Ms Kenyon said that Tech 1 is a customer of Amazon and that sometimes customers try to sell products to them, in this case, the offer was to provide drone and scanning technology.  Amazon has an MNDA in place with Tech 1, which means that both parties agree not to disclose the nature or contents of discussions.

Ms Guinness asked Ms Kenyon to refer to her letter to the complainant dated November 10th 2021 in which she informed him that, in addition to the issues raised in her letter of November 1st, she would investigate the potential breach of the MNDA with Tech 1 and the sending of confidential information by email to the MCSD in PM Group.  On November 12th, in advance of a meeting on November 15th, Ms Kenyon sent the complainant copies of the email conversation she found between the complainant and PM Group and Tech 1.

At the third investigation meeting on November 15th, Ms Kenyon said that the complainant argued that the information he blind copied to the MCSD in PM Group regarding Tech 1 was not confidential and that it was public knowledge.  Ms Kenyon said that this is not correct.  It was public knowledge that Tech 1 was a customer, but not that they were seeking to become a supplier.

Ms Kenyon referred to the email from the complainant on October 6th 2021 to Tech 1 in which he informed them that their drone would not be selected and the reasons why.  This email was copied to PM Group.  Ms Kenyon said that it was a breach of confidence to provide PM Group with this information.

At the fourth investigation meeting on November 17th, Ms Kenyon said that she questioned the complainant in detail about his email of October 6th 2021 to PM Group.  In response to her question about why the email was blind copied, the complainant said that he didn’t want to put pressure on Chris Bober to contact PM Group.  Ms Kenyon said however, that the point of the email to Mr Bober was to recommend PM Group over Tech 1.  The complainant said that other employees were aware that he had worked for PM Group; however, Ms Kenyon said that when she asked Mr Bober about this, he said that he didn’t know.  A senior construction manager that the complainant worked with also said that he didn’t know about the complainant’s previous experience with PM Group.

Ms Kenyon referred to questions she asked the complainant at the meeting on November 17th, in which she referred to a “master NDA” that Tech 1 had signed with Amazon.  She referred to point 97 of the note of the meeting in which the complainant accepted that the information he sent to PM Group regarding Tech 1’s drone technology was confidential.  Asked why he blind copied the executive in PM Group, the complainant said that he was letting him know that he was giving his contact details to Chris Bober.  He said that had no intention of being underhanded and that it was “just a heads up of passing his details on.”

At point 108 of the note of this meeting, the complainant said that he now accepts that the information he sent to PM Group about Tech 1 was confidential.  By blind copying his email to Tech 1 to PM Group, he said that he was letting PM Group know that Amazon wasn’t going ahead with Tech 1’s product.   The note shows that he agreed that Tech 1 would “mind” about this.   He said that he didn’t think about it at the time and that it was “a spur of the moment thing.”

Ms Kenyon described the meetings she had with eight executives in the respondent’s company, to assist her with her investigation.  Notes of these meetings were included in the respondent’s documents at the hearing.  Referring to her meeting with the senior construction manager for the data centre, Ms Kenyon’s notes show that he was concerned in July 2021 when the complainant supported the MEP contractor’s request for a dramatic price increase and that his concern was shared by others including the external QS.  

Considering the rationale behind the decision not to move forward with Tech 1’s drone, the notes of Ms Kenyon’s meeting on November 22nd 2021 with the construction manager show that he agreed with the reasons set out in the complainant’s email of October 6th 2021.  He said that he helped to draft the email to the CEO of Tech 1 because he wanted to give her constructive feedback to help to develop the product.  He said that he would not have agreed to this email being copied to another vendor.   He said “we had figured out gaps in their product.  Their competitors would have found it useful; it would have speeded up their time to development.”   

Ms Guinness asked Ms Kenyon to look at her report of December 8th 2021 into the investigation she conducted with the complainant.  Ms Guinness referred to the complainant’s submission that Ms Kenyon didn’t revert to him to give him an opportunity to clarify or dispute her findings.  Ms Kenyon said that her role was to fact-find.  She decided that she had the facts she needed to conclude her report and the complainant would have a chance to clarify or dispute her findings at a disciplinary hearing.

The complainant was unhappy about Ms Kenyon’s style of repeatedly asking the same question.  Ms Kenyon said that it was necessary to pursue certain issues, such as why the complainant blind copied the MCSD in PM Group.  The complainant also suggested that Ms Kenyon didn’t speak to anyone who could have supported his position and Ms Kenyon replied that, in her view, she spoke to everyone that it was necessary to speak to.

Ms Guinness asked Ms Kenyon about her finding that the complainant was dishonest in his responses to questions asked during the investigation.  Ms Kenyon said that, in addition to finding facts regarding specific allegations, an investigation into misconduct is also concerned about the conduct of the person being investigated.  The complainant held a position of trust and it is a concern if the employee appears to be dishonest.

Ms Kenyon said that the company communicated with the CEO of Tech 1 about the breach of confidentiality, which, she said, was not well received.

Cross-examining of Ms Kenyon

Ms Madden asked Ms Kenyon how her concerns about the complainant’s conduct came to her attention.  She said that information was provided to her that the complainant was a director of Raiona.  Arising from this, she conducted a targeted search.  Then, the in-house counsel on the construction of the data centre raised concerns.  He had been engaging with the complainant on a day-to-day basis.  Ms Kenyon said that the emails she discovered were disclosed to the complainant, and then further emails came to light and these were also disclosed.

Ms Madden suggested to Ms Kenyon that she didn’t ask the complainant why he hadn’t disclosed that he was a director of Raiona.  MS KENYON replied that, in response to her question on this, the complainant said that he didn’t think he had to disclose it.  Ms Madden said that the complainant’s evidence will be that he would have disclosed that he was a director if he had understood the policy.

Ms Madden asked Ms Kenyon about her tendency to repeat the same question and her explanation of this was that the complainant gave a different answer each time.  Ms Madden said that the question was asked differently.  Ms Kenyon replied that “this was critical to my investigation.”  On the issue of the blind copying of the email, the first couple of answers didn’t explain the reason.  To ensure that the complainant understood the question, Ms Kenyon said that she repeated it.   He then replied that he didn’t want to put pressure on Chris Bober by letting him know that he was sending his details to PM Group.

Ms Madden said that the complainant’s case regarding this issue is that he didn’t know that the email to the CEO of Tech 1 was confidential.  Ms Kenyon replied that the information he sent was confidential because there was an MNDA in place between Tech 1 and Amazon.  She said that the email itself was confidential.  It provided information that Tech 1 was endeavouring to become a supplier to Amazon and thirdly, it set out the limitations of that company’s product.

Ms Madden said that, although the complainant agreed with Ms Kenyon at the time that he knew there was an MNDA in place between Amazon and Tech 1, he now thinks that he thought the MNDA was with another company.  Ms Madden said that the complainant had reviewed a lot of drone technology and the limitations he identified in Tech 1’s product is common to many.  She said that his email was a general commentary.  Ms Kenyon said that she received the complainant’s email about this defence and that she took it into account, but she didn’t include this in her report.

Regarding the allegation of dishonesty, Ms Kenyon said that an investigation will take account of the answers provided by the employee whose conduct is being investigated.  If there is a concern that the answers are not honest, this will be taken into account.

Challenged about her inclusion of concerns about honesty in her investigation report, Ms Kenyon referred to paragraph 146 of the report in which she set out the reasons for her concern:

1.      The complainant was inconsistent in the varying accounts he gave regarding why he blind copied the email of October 15th 2021 to PM Group.

2.      He said that the CEO of Tech 1 had explicitly stated in an email that information about their product was confidential.  He said that he was aware that there was an MNDA in place.  For these reasons, his explanation that he didn’t realise he was sending on confidential information lacked credibility.

3.      The complainant’s explanation that he used information from PM Group as part of an assessment of Tech 1's product is not supported by the statement of a senior construction manager who worked with the complainant on the assessment.

4.      The complainant told Ms Kenyon that he discussed contacting PM Group with another colleague, a senior procurement manager, but this manager had no recollection of that discussion.

5.      When he was questioned about his relationship with PM Group, the complainant said that he told Chris Bober that he worked with them.  Mr Bober told Ms Kenyon that he was not aware of this fact.  The same applies to the senior procurement manager, who, although the complainant stated in writing to Ms Kenyon that he told him he worked for PM Group, this manager said that he didn’t know this.

6.      Although the complainant told Ms Kenyon that he didn’t advocate for the MEP contractor’s price increase to be accepted, another colleague contradicted this and stated that it was clear that he did.

Concerning policies that the complainant was expected to be aware of, Ms Madden said that the complainant did not know that he should have declared that he was a director of Raiona.  Ms Kenyon agreed that this is what the complainant told her.

Evidence of Mr Dominic Kelly, Head of Data Services Operations Procurement

Mr Kelly chaired the disciplinary investigation with the complainant and decided that he should be dismissed.  Referring to the note of the disciplinary meeting on January 5th 2022, Mr Kelly agreed with Ms Guinness that he didn’t include an allegation of dishonesty in his letter inviting the complainant to the disciplinary meeting.  He said that there had been no finding on this by Ms Kenyon.  The allegations that the complainant was expected to answer are set out on page 4 above and, for convenience, are repeated here:

1.      That the complainant breached Amazon’s Outside Activities Policy and his contract by acting as a director of Raiona Contracting Limited, an active registered company.  Mr Kelly concluded that this breach of policy amounted to misconduct.

2.      That, in his role as a construction cost engineer, the complainant did not act in the best interests of Amazon, in breach of his contract of employment and the company’s Code of Business Conduct and Ethics.  Mr Kelly said that sometimes, it might be in the long-term interest of a relationship with a supplier to agree to a price increase.  Mr Kelly concluded that there was insufficient information to determine if this allegation should be upheld and he decided that the conduct came under the heading of poor performance.

3.      That he disclosed confidential information to a third party, PM Group, in breach of the respondent’s mutual non-disclosure agreement (MNDA) with a customer, Tech 1, and also in breach of his confidentiality agreement and Amazon’s Confidential Information and Non-disclosure Guidelines and Policy.  Mr Kelly said that the complainant’s answer to this allegation was that “everybody knows” about Tech 1’s product and that the information is in the public domain.  Mr Kelly described the circumstances in which the “bcc” email facility is used in the company, which is the sending of large-scale public notices, to prevent people replying to everyone on the email.  He said that in the HR department, a manager may be blind copied to make sure that there is a second pair of eyes on a confidential document.  Mr Kelly said that the complainant said that he didn’t share confidential information about Tech 1’s product with PM Group.  Mr Kelly concluded that the complainant’s actions with regard to his email of October 15th 2021 came under the heading of gross misconduct.

4.      That he breached Amazon’s Code of Business, Conduct and Ethics by promoting internally the services of a third party, PM Group, in circumstances where he had an undisclosed conflict of interest.  Mr Kelly concluded that this was a serious or material breach of Amazon’s Code of Business Conduct and Ethics and that it was gross misconduct.

Ms Guinness read the letter that Mr Kelly sent to the complainant on February 2nd 2022, in which he informed him that he was dismissed.  Ms Guinness asked Mr Kelly if he considered any sanction short of dismissal.  Mr Kelly said that he knew that he had options.  He said however, that, regarding two of the allegations above, he concluded that the complainant engaged in gross misconduct and one allegation was considered to be misconduct.  The complainant is responsible for handling contracts worth millions of euros and Mr Kelly said that he decided that a final written warning was not appropriate.  Mr Kelly said that the disciplinary hearing did not have an allegation of dishonesty to which the complainant was required to respond.  However, he said that there was “a lack of truthfulness” in the discussions he had with the complainant at the disciplinary meeting on January 5th 2022.  He said that there were “large inconsistencies” across his explanations.  He said that every engagement with a supplier is confidential and that it is not plausible that he didn’t know that he was sending confidential information to PM Group on October 15th 2021.  He said that his pursuit of a separate NDA with Tech 1 shows that he was aware of the need for an NDA.  He must therefore be aware that there is a need for confidentiality between Amazon and Tech 1.

Cross-examining of Mr Kelly

Mr Kelly agreed with Ms Madden that there is no policy on the use of the “bcc” email tool and that its use is not forbidden.

Mr Kelly also accepted that “dishonesty” wasn’t one of the allegations raised in the letter inviting the complainant to the disciplinary meeting.  He said that, at the end of the meeting, he concluded that the complainant was less than truthful.

Ms Madden put it to Mr Kelly that the complainant was not informed that he could be dismissed because of dishonesty.  Mr Kelly said that the complainant was dismissed because of two counts of gross misconduct and one of misconduct and for his lack of honesty in his answers to questions at the disciplinary meeting.

Ms Madden referred to Mr Kelly’s conclusions regarding allegation number 2 above and his support for a price increase for the MEP contractor. In his response at the disciplinary meeting, the complainant replied that “he didn’t have a big role to play in this.”  Mr Kelly said that, as the complainant was the cost control engineer, this response is simply not credible.

Ms Madden asked Mr Kelly to consider his findings on allegation number 4 above, that the complainant disclosed confidential information about Tech 1’s drone to a third party.  Ms Madden said that the complainant explained his actions concerning this matter and Mr Kelly replied that he provided multiple explanations.  Ms Madden said that the complainant’s defence will be that he reassessed his evidence.  Mr Kelly replied that the explanation given for using the “bcc” tool was less than truthful and his rationale for sending the email by “bcc” is not credible.

Ms Madden suggested to Mr Kelly that his conclusion regarding allegation 4 is not consistent with his decision not to make any findings concerning Ms Kenyon’s allegation that he conducted work for Raiona while he was employed by the respondent.  Mr Kelly said that seeking to develop a commercial relationship with PM Group is a conflict of interest.   He had a relationship with PM Group as a supplier and his conduct is much more serious than that of a former employee.

Ms Madden referred to Mr Kelly’s statement in the dismissal letter that there were inconsistencies between what the complainant said at the investigatory meeting and his statement at the disciplinary hearing and his email of October 15th 2021.  She asked Mr Kelly if he had raised these inconsistencies with the complainant during the disciplinary hearing.  Mr Kelly replied that multiple witnesses said that the complainant did not tell them that he did work for PM Group.

Mr Kelly said that a finding in relation to the third allegation above, on its own, was, in his view, sufficient to lead to a decision to dismiss.  Mr Kelly said that the complainant knew that the information he provided to PM Group was confidential and this is apparent from the fact that he put in place an NDA with Tech 1 and he had 15 years of experience as a cost engineer.  Mr Kelly said that the complainant intentionally decided to divulge confidential information.  Considering his role in the company as a cost engineer, there are no mitigating factors to explain or excuse this conduct.  He deals with sensitive commercial information every day.

Ms Madden submitted that the complainant hadn’t got access to his work computer and he couldn’t prepare properly for the disciplinary meeting.  Mr Kelly said that he is aware from his discussions with the HR department that the complainant received any information he looked for.  On January 3rd 2022, he submitted a written response to Carolyn Kenyon’s report.  Mr Kelly said that he read his response and he asked him if he had any more to add.

Evidence of the Principal HR Business Partner, Mr Paul Diver

Mr Diver gave evidence that he heard the complainant’s appeal against his dismissal on April 12th 2022.  One of the mitigating factors he raised in his appeal was the heavy workload he said he had to contend with.  Mr Diver said that he asked the complainant’s line manager about this and she said that she told him not to be involved in vendor activities, to prioritise key activities and not to work excessive hours.

On the first day of the hearing, Ms Madden presented a submission on behalf of the complainant.  She said that before he worked for the respondent, he worked with PM Group as a self-employed contractor.  This necessitated him having his own company, Raiona Contracting Limited, through which he was paid and of which he was a director.  He stopped working for PM Group before he started working for the respondent. 

It is the complainant’s case that there were a number of procedural irregularities in the investigation and disciplinary process that ended with his dismissal and that he did not get a fair hearing.  He argues that the conclusion of gross misconduct was disproportionate and that his dismissal was substantially and procedurally unfair.   Ms Madden set out the complainant’s position regarding the procedural irregularities as follows:

1.      The complainant was not interviewed after Ms Kenyon’s meetings with the eight managers and he was not given an opportunity to respond to their statements. 

2.      Ms Kenyon asked closed questions at her meetings with the complainant, pursuing the respondent’s agenda.  She asked questions repeatedly in a manner not consistent with the objective of simply ascertaining the facts.

3.      Ms Kenyon did not interview anyone who may have supported the complainant’s point of view.

4.      Ms Madden submitted that the finding that the complainant’s previous relationship with PM Group created a conflict of interest between him and the respondent is not supported by the facts and is not reasonable.

5.      The respondent augmented the allegations as the investigation progressed and added an allegation of “dishonesty.”  The procedural difficulties in the investigation are compounded by the finding of dishonesty.

6.      The complainant was not notified of a specific allegation of dishonesty when his was invited to a disciplinary hearing in the letter of December 24th 2021.

7.      Allegations of dishonesty were not put to the complainant at the disciplinary meeting.

8.      The complainant was not informed of the specifics of any allegation of dishonesty and he was not informed that there would be a finding in relation to an allegation of dishonesty.  He was not informed of any possible sanction that could arise as a result of findings against him. 

9.      In the disciplinary outcome letter, the complainant was notified of a finding of dishonesty, which was held to be gross misconduct.  Ms Madden submitted that this finding “taints the entire process” and puts all the complainant’s assertions throughout the process into doubt.  Ms Madden referred specifically to the assertions regarding the MNDA and the complainant’s NDA.

10.   Ms Madden submitted that the allegation of dishonesty created a bias against the complainant.  She said that Mr Kelly makes reference to the notion of dishonesty and truthfulness in very strong terms.

11.   Ms Madden went on to assert that none of the deficiencies were remedied at the complainant’s appeal hearing.  The investigator, Ms Kenyon was not interviewed as part of the appeal.  The decision-maker, at the disciplinary hearing, Mr Kelly, reached a conclusion of dishonesty regarding the blind-copying of an email to an executive in PM Group.  This was considered to be a breach of confidentiality.

12.   Ms Madden concluded her arguments regarding procedural fairness by stating that an allegation of dishonesty which then results in a finding of gross misconduct and which is based on the conduct of an employee during a disciplinary investigation is contrary to fair procedures on a fundamental level.  The allegation of dishonesty prevented the complainant from being freely able to contest the allegations against him and to freely give his opinion.  The allegation of dishonesty was never put to the complainant and the complainant had no access to his computer or emails during the investigation.  The findings of dishonesty relate in some instances, to a matter of opinion and the complainant cannot submit evidence to rebut a presumption of dishonesty about his own opinion.

13.   Ms Madden submitted that the finding of gross misconduct is disproportionate.

14.   In relation to the breach of confidentiality, Ms Madden listed a number of concerns the complainant has with the MNDA and the NDA and the actual confidentiality of the information disclosed, which she asserted, was in the public domain.

15.   Finally, concerning the allegation that the complainant promoted PM Group internally, Ms Madden argued that no consideration was given to the following:

                     i.        The policy does not refer to former employees;

                    ii.        The policy is not clear;

                  iii.        There was no evidence of personal interest on the part of the complainant;

                  iv.        There was no evidence of interference “with the best interests of Amazon;”

                    v.        The complainant made no financial gain;

                  vi.        The complainant co-operated with the investigation;

                 vii.        The finding was that there was a reportable conflict of interest, therefore, all the complainant needed to do was report his interest, but the rest of his actions would not have been problematic;

               viii.        The complainant was open about his previous involvement with PM Group;

                  ix.        At his yearly review, he was given feedback that he was not following procedures.  Despite his efforts, he was not given any further clarification. 

Legal Submission

Referring to the decision of the Supreme Court in Glover V BLN Limited, [1973] IR 388, Ms Madden submitted that the right to fairness of procedures is capable of a wide application:

“…in proceedings before any tribunal where a party to the proceedings is on risk of having his good name or his person or property, or any of his personal rights jeopardised, the proceedings must be correctly classed as proceedings which may affect his rights, and the State, either by its enactments or through the courts, must, in compliance with the Constitution, outlaw any proceedings which will restrict or prevent the party concerned from vindicating these rights.”

Ms Madden referred to the case of Kilsaran Concrete, Kilsaran International Limited v Vitalie Vet, UDD 1611, where the Labour Court, relying on the decision in Glover, concluded that Mr Vet’s dismissal was unfair.  Reaching that conclusion, the Court held that,

“The protection to be afforded to a person whose conduct is being investigated will vary according to the circumstances.  However, there are certain fundamentals of fair procedures that cannot be dispensed with, regardless of the particular requirements that arise in an individual disciplinary matter.  They include:  (i) the requirement to make the employee who is the subject of the investigation aware of all the allegations against him or her at the outset of the process;  (ii) the requirement that an employer who has published a disciplinary procedure to its employees follow those procedures scrupulously when conducting a disciplinary process; and (iii) in the event that an allegation against the employee is upheld, any disciplinary sanction imposed is proportionate to the complaint that has been substantiated.”

In Vitalie Vet, the complainant, a truck driver, was dismissed for driving without a digital tacograph card. He had been unable to renew the card due to a systems error in the Courts Service.  Referring to his summary dismissal, the chairman of the Labour Court, Mr Haugh, quoted from the decision of the former Employment Appeals Tribunal (EAT) in Lennon v Bredin, M160/1978, concerning the right of an employer under s.8 of the Minimum Notice and Terms of Employment Act 1973, to dismiss an employee without notice:

“We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same category.” 

In a third precedent, again, a decision of the former EAT, Alan Preston v Standard Piping Limited, [1999] 10 ELR 233, Mr Preston was accused of stealing lengths of copper.  Following its conclusions in a previous decision of Martin v Audio Video Services Centre Limited, [1992] ELR 216, the EAT held that the appropriate test in a decision regarding dishonesty were first, whether the employer had an honest and reasonable belief based on reasonable grounds arising from a full and fair investigation and second, whether the rules of natural and constitutional justice had been complied with.

In a final EAT decision, Ms Madden asked me to consider the outcome in the case of William McCurdy v Adelphi/Carlton Limited, [1992] ELR 14.  Mr McCurdy was found to have been absent without permission on the day of an international soccer match and he had abused his manager in a public area.  The Tribunal held that the penalty of dismissal was too severe.

Commencing his evidence, in response to questions from Ms Madden, the complainant said that his job with the respondent was to manage costs and to communicate cost controls.  He said that he was required to communicate cost-control goals, to issue a monthly report and to assist other teams with their reports.  He said that he created bid templates and that he has a high-level knowledge of the tendering process.

Before he commenced with the respondent in June 2020, the complainant said that he worked for PM Group for two and a half years.  While he was a self-employed contractor, he worked as if he was a fixed-term worker.  He said that he agreed an hourly rate and he sent invoices to PM Group.  He set up his own company to do this, a process that took about six months.

At his three interviews before he was recruited by the respondent, the complainant said that he did not inform the interviewers that when he worked with PM Group, he was a contractor.

From the start of the Covid-19 pandemic, the complainant said that he worked from home and he finished up working for PM Group on May 29th 2020.  He said that he told the manager he reported to that he “had hours banked to capture in future invoices.”

Ms Madden asked the complainant why he reviewed Tech 1’s product.  He replied that one of the 14 leadership principles in the company is not to reply to a request by saying, “that’s not my job.”  He said, “I put up my hand to assist on this.”  He said that he “told one of the guys that I would review Tech 1’s product against PM’s product.”   He said that the construction team attended a presentation given by Tech 1 and he said that he would try to get an NDA approved.

The complainant said that it’s difficult to say if the Tech 1 piece was part of his job.  He said that it wasn’t part of his core duties, but “me trying to embody a leadership principle.”  He said that Tech 1 were trying to rush a decision and that he and a colleague didn’t think it would comply with security standards.  He said that he contacted the design team to see what tools were available internally.  He recommended that they would not proceed with Tech 1 or PM Group and to use internal resources.

The complainant said that PM Group was asked to send on a proposal.  He said that he didn’t expand further, but he told them, “we might get back.”  He said that they could have put Tech 1 and PM’s product and Google Glasses to the construction team and that it was likely that Tech 1 would have been selected because “that was the product we were asked to review.”  He said that it’s difficult to say which company would have been selected, because it didn’t happen.

Ms Madden read from the notes of the investigation meeting concerning Tech 1 and the email of October 15th 2021.  The complainant agreed that the notes reflect the conversation he had with Ms Kenyon.  Ms Madden asked the complainant to comment on the respondent’s assertion that he gave inconsistent answers to questions.  He replied that, as he was asked more questions, he gave more answers.  He said that the respondent may think they are inconsistent, but the answers he gave reflect why he did what he did.

Asked about the details in the investigation report (questions 101 – 108) regarding the email to Chris Bober and the “bcc” to PM Group, the complainant said that the doesn’t see that he did anything wrong. 

Asked if he was satisfied that he put forward his case at the disciplinary meeting, the complainant said that he didn’t get access to his computer and he didn’t get access to witnesses.  When he was asked who he wanted speak to as a witness, he did not identify anyone.  He said that he told the investigator that he would work in a supervised place on his computer to review documents.  In March 2022, after he was dismissed, he was given access to his laptop for 14 hours. 

When he contacted Tech 1, the complainant said that he told them that they needed to agree an NDA.  They said that they already had an MNDA in place and that they wouldn’t sign an NDA.  He said that he contacted the legal department about this, but no one got back to him about whether the MNDA was sufficient.  He said that the relationship between Tech 1 and Amazon was already in the public domain.

Referring to the email of October 6th 2021 to the CEO of Tech 1, the complainant said that he and a senior construction manager, Mr Ken Power, were asked to respond to Tech 1 and this email is their response.  He said that the CEO of Tech 1 did not agree with their assessment.

Concerning the allegation that he promoted PM Group in Amazon, the complainant said that when he finished working for PM, he ended his relationship with PM Group.

On the issue of losses, Ms Madden asked the complainant if he has worked since he was dismissed.  He said that he has applied for many jobs, and he has done a few interviews, but he hasn’t found anything suitable.  He said that he wants to be reinstated.  Ms Madden asked the complainant if he declined any job offers and he replied that if the job wasn’t suitable, for example, because he would have to travel, he didn’t take it.

He said that he was never asked if he was a director of his own company.  He said that the missed the first day of induction training.  He said that the was sent an email telling him that he had to read 113 policies as part of his training.  Then he was informed that he wasn’t following processes.  He said that an email regarding policies wasn’t clear and that on the HR platform, there are a couple of steps required to get to policies.

As he was working very hard with the respondent, the complainant said that he was expecting a positive annual review.  His manager then told him that he wasn’t following procedures, but she did not identify which procedures he wasn’t following.  He wasn’t asked if he completed HR requirements.  At his weekly meeting with his line manager, the complainant described the general tone of the conversation as “what could I do for Amazon?”  He said that he was surprised to be told that he wasn’t following procedures, because he was working as hard as he could and getting negative feedback.

Cross-examining of the Complainant

Ms Guinness asked the complainant to take us through the chronology of events with PM Group.  The complainant said that he was asked to review Tech 1’s product and to compare it with other products.  In February or March 2021, they had a presentation from Tech 1 and he volunteered to work on the assessment of their product.  He said that he asked the construction manager if he could look at a comparison product and he asked PM Group for details of their drone.

Ms Guinness referred to a meeting request the complainant sent to PM Group on April 7th 2021.  The respondent’s book of documents contains an email from the MCSD of PM Group on April 21st to which he attached a slide deck setting out the attributes of their drone product.  A week later, on April 28th, the complainant asked the MCSD to send him a proposal on the composition of a team and head office support to work on the project. 

Ms Guinness put it to the complainant that he was putting forward PM Group for commissioning the product.  She referred to an email of June 9th 2021 in which he informed the MCSD in PM Group that he had “forwarded your document to the EMEA Commissioning Manager for review along with a note on PM’s all-round excellence.”

Ms Guinness reminded the complainant that he didn’t tell the senior construction manager that he worked for PM Group before he started with the respondent.  The MCSD followed up with the complainant on July 5th to see if there was “any interest or questions from your colleagues.”  The complainant replied that the senior commissioning manager had been busy but that he would invite the MCSD to a meeting.  Ms Guinness put it to the complainant that this wasn’t true.  He replied that this is how he interpreted a conversation he had over Chime with the commissioning manager.

Ms Guinness referred to an email from the CEO of Tech 1 to the complainant, the commissioning manager and the senior construction manager on September 1st 2021 to which she attached two documents.  In the first sentence of her email she said,

“Please find attached below two documents as requested and while we are finalising the NDA, please make sure to treat both of these as confidential.”

Ms Guinness noted that the complainant reviewed the documents, “How Tech 1 Works” and a second document about the company itself.  She noted that the complainant decided not to go forward with Tech 1.  She referred to the email that the complainant sent to the CEO of Tech 1 on October 6th in which he explained the four reasons for not proceeding and in which he pointed out the limitations of Tech 1’s product, which he referred to in the email as “that tool.”  The complainant did not accept that his reference to “that tool” was a reference to Tech 1’s drone technology.

Ms Guinness referred to an email the complainant sent on October 15th 2021 to Chis Bober, the global partner segment lead in which he stated that while Tech 1’s product was similar, it “did not meet the same standards as the alternative vendor PM Group.”  He went on:

“This was based on the fact that PM Group’s approach and methodology for delivery took considerable more ownership with regards to management and maintenance of the product by assigning key personnel to operate the software on the project.  This was in contrast to Tech 1 who passed this responsibility on to the GC (general contractor) upon appointment.

In talking to PM Group, they were also much clearer on the potential innovations that could be implemented and on the lessons learnt / areas for improvement they encountered working on similar projects for DC Clients.

To date we have not pursued this option further but I would consider them above Tech 1 if the need does arise even when considering potential partners with regards to future innovation projects as they were helpful and proactive in our dealing with them.”

Ms Guinness reminded the complainant that, in this email to Chris Bober, he did not include the response of the CEO of Tech 1 to his rejection of their product. 

Ms Guinness put it to the complainant that he was promoting PM Group to the global partner segment lead, Chris Bober.  The complainant rejected this and said that he didn’t promote PM, but he referred them to Amazon.  When Ms Guinness referred to the Chime messages between the complainant and the senior commissioning manager, he said that he promoted PM as a partner, not for procurement.

Ms Duggan said that the concern is that the complainant was promoting PM without telling the people he was speaking to that he worked for PM before he worked for Amazon.  She said that this is evident from the fact that he blind copied a document to PM Group concerning Tech 1’s product and why it might not be acceptable.

The complainant replied that he doesn’t think it has been shown that the document was confidential.

Ms Guinness referred to the note of the investigation meeting in which the complainant acknowledged that he understood the expectation of Amazon’s clients and customers that their business dealings would be kept confidential.  He also acknowledged that Tech 1 asked Amazon to enter into an NDA so that they could securely disclose commercial information to Amazon.

The complainant said that his opinion is that Tech 1 “want it to be known that they are working with big companies.”  The CEO wanted two documents to be kept confidential and he said that he didn’t pass these on.  He described his difficulties getting a response from the legal department about the existing MNDA and he said, “all the time, I was trying to get a valid NDA in place.”  He said that “everything in the two documents was kept confidential.”  He said that Tech 1 were happy to be seen to be working with Amazon.

Ms Guinness referred to a question Ms Kenyon asked the complainant at the investigation meeting on November 17th 2021:

“Did you consider that your third attachment, namely your email to (the CEO) on 6 October amounted to confidential information?”

The note shows that the complainant replied, “At the time I didn’t but I do now.”  He said that he hadn’t got access to his emails at the meeting on November 17th.  He said that he has changed his position on the email now and he accepts that Tech 1 wouldn’t want information about their product copied to a competitor.

Ms Guinness referred to the note of Ms Kenyon’s meeting with the senior construction manager, Mr Roger Gough, who helped the complainant to draft the email of April 6th 2021 to the CEO of Tech 1.  Mr Gough said that he helped him to draft it because “Tech 1 is a customer as well.  I wanted to provide constructive feedback to enable them to develop the product and to thank them for their time.”

Ms Guinness referred to the note which shows that Mr Gough stated that the information in the email was “very useful to Tech 1.  It was confidential between us and Tech 1.”  The complainant said that he didn’t agree.

Ms Guinness said that Mr Gough’s view is that he would not have authorised the sending of this email to a competitor.  The complainant replied, “my position is different.” He said that it is public knowledge that Tech 1 is a customer of Amazon and he provided screen shots at his appeal hearing as evidence of this.  He agreed with Ms Guinness that it is not in the public domain that there are limits to Tech 1’s drone technology.

Redirection by Ms Madden

Ms Madden asked the complainant to describe the respondent’s “ingenii” tool.  He said that this is a tool that outlines employee’s previous experience and the scope of their previous jobs.  He said that managers and the HR department can access the information.

Final Questions from the Adjudicator

At the conclusion of his evidence, I asked the complainant if he thought that a company bidding for business with Amazon would expect that their application would be treated as confidential.  I asked him also if he thought that the reasons why their application is rejected should be treated as confidential.  He made no reply.

I asked the complainant why he thinks his dismissal was unfair.  He replied, “I was waving my arms around in there, trying to do things right.”  He said that he hadn’t got access to a proper grievance procedure and he was being told that he wasn’t doing things correctly.  He said that, from the start, the company had a negative view of him, and he couldn’t take any actions to correct this.  He said, “the view of me was negative on official platforms.”

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 – 2015 (“the Act”) provides that:

“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.”

Section 6(4)(b) of the Act provides that,

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant.  It is the respondent’s case that he was dismissed for gross misconduct arising from his decision on April 15th 2021 to send an executive in PM Group a copy of an email he sent to Tech 1 on April 6th setting out the deficiencies in Tech 1’s drone technology.  In a second offence under the heading of gross misconduct, the deciding manager found that the complainant sought to promote PM Group to Amazon without declaring that he was previously a self-employed contractor in PM.  The fact that he didn’t declare that he was a director of a company, Raiona, was considered to be misconduct.

Was it Reasonable to Dismiss the Complainant?

Considering the reasonableness or otherwise of the respondent’s decision to dismiss the complainant, counsel for the respondent cited the decision of the High Court in Bank of Ireland v Reilly and Mr Justice Noonan’s focus on the question of whether, in response to the conduct, “the decision to dismiss is within the range of reasonable responses of a reasonable employer…”  Justice Noonan referred to the decision in Allied Irish Bank plc v Purcell where Ms Justice Linane considered what is now conventionally known as “the British Leyland test” and the band of reasonable responses available to an employer.  The British Leyland test requires a decision-maker to ask if it was reasonably open to the employer to make the decision it made.  Regarding how the test should be viewed, Ms Justice Linane held that,

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

Taking my authority from the decision in Allied Irish Bank v Purcell, it is not for me, as the adjudicator, to consider if the complainant should have been dismissed, but to ask if it was reasonable for the respondent to make the decision it made. 

In his evidence, the complainant said that the purpose of his job as a cost engineer was to manage costs and to communicate cost-control goals.  The evidence of Ms Kenyon is that data centres are highly expensive construction projects and the complainant’s job was to get the best value for the company in its negotiations with suppliers and contractors.  It is apparent that, shortly after a year into his job, there were concerns about the complainant’s commitment to this objective, and managers seem to have raised this concern when he failed to challenge the request from the MEP contractor for a price increase.  Ultimately, this was found to be a poor performance rather than a disciplinary issue. 

When an email search uncovered 111 emails between the complainant and his accountant, further investigation revealed that he was a director of his own company.  He did not tell his employer that he was a company director and, when he was interviewed for the job, he failed to tell the interviewers that he was a self-employed contractor in PM Group.  As a cost engineer, the respondent relied on the complainant to act with integrity and his lack of openness with these facts would have been a concern for any reasonable employer.

Regarding the third allegation, it is my view that the complainant’s decision to inform PM Group about the deficiencies in their competitor’s technology and to conceal this by blind copying an executive in PM Group, is something that most reasonable employers would not tolerate.  As he is a subject matter expert with 15 years of experience, it is not credible that the complainant did not understand that his actions were in breach of the confidentiality clause in his contract of employment and the company’s non-disclosure policy.  It is my view that, any reasonable employer faced with the same circumstances would have concluded that the behaviour of the complainant was gross misconduct.

The conclusion regarding the fourth allegation was that, by promoting PM Group in Amazon, and by not declaring that he had been a self-employed contractor in PM Group, the complainant breached Amazon’s Code of Business Conduct and Ethics.  Mr Kelly decided that this also amounted to gross misconduct.  I am satisfied that another employer in the same business as Amazon employing a person in the same role as the complainant would have reached the same conclusion.

I have considered the case law referred to by Ms Madden of Kilsaran Concrete v Vitalie Vet (Labour Court UD1611 2016) and Mc Curdy v Adelphi Carlton Limited (EAT UD 204/90) and I note the findings that dismissal was considered to be disproportionate to the offences in each case.  Mr Vet was a truck driver and Mr McCurdy was a cinema usher.  The complainant’s role as a cost engineer, for which he was paid a significant salary, is one in which his employer trusted him to act with integrity and his failure to comply with the company code of conduct and ethics does not compare with the offences that resulted in Mr Vet and Mr McCurdy being dismissed.

From Glover V BLN Limited, (Supreme Court [1973] IR 388), we know that it is an implied term of every disciplinary investigation that it must be conducted fairly.  I have considered the complainant’s contention that there were procedural irregularities in the investigation conducted by Ms Kenyon.

The complainant complains that Ms Kenyon did not interview him after she met the eight managers as part of her investigation.  I note however, that some of the meetings that Ms Kenyon held with the managers were conducted before the final meeting she had with the complainant on November 17th 2021.  I am satisfied also that the information she gleaned from her conversations with the managers were included in the investigation report of December 8th and presented to the complainant for his response at the meeting on January 5th 2022.

I accept that the complainant must have been irked by Ms Kenyon’s repetition of questions.  I find however, that this strategy was fair and that Ms Kenyon’s objective was to elicit a credible explanation from the complainant regarding his conduct. 

I have no concern about the fact that, after she sent her first letter of November 1st 2021, Ms Kenyon raised additional concerns with the complainant.  She outlined these concerns clearly in her letter of November 8th and the complainant had time to respond at meetings that were held on November 12th, 15th and 17th.

I disagree with the complainant’s contention that it was unfair not to interview Ms Kenyon as part of his appeal against his dismissal.  Any involvement by Ms Kenyon at that point could only have served the interests of the respondent and would have been of no advantage to the complainant.

Mr Kelly’s conclusion that the complainant had acted dishonestly attracted particular criticism of Ms Madden:

“The complainant was not informed of the specifics of any allegation of dishonesty and he was not informed that there would be a finding in relation to an allegation of dishonesty.”

In her letter of November 1st 2021 in which she informed the complainant that she was conducting an investigation into this conduct, Ms Kenyon made no allegation of dishonesty.  However, in her report of December 8th, she concluded that, in his responses over the course of four meetings, he had not been fully honest.  Despite this observation, no allegation of dishonesty was presented to the complainant at the disciplinary meeting on January 5th 2022 and Ms Madden appears to suggest that this renders the process procedurally flawed.  I do not accept this proposition.  It is incumbent on every employee who is the subject of a disciplinary investigation to respond truthfully to questions and to provide an honest explanation of what occurred.  Suitably warned by Ms Kenyon in her report of December 8th, the complainant had an opportunity to mend his hand at the meeting with Mr Kelly on January 5th 2022.  Regrettably, this is not how things turned out and Mr Kelly concluded that the complainant’s responses had been evasive and that this “follows a pattern of dishonesty throughout both the investigation and disciplinary processes.”  The critical importance of honesty for a person in the job of cost engineer was set out by Mr Kelly on page 9 of the letter of dismissal:

“Your role is relatively unique in that you manage and engage third party QS suppliers, providing them with highly confidential and commercially sensitive information from other suppliers.  I struggle to think of another example where we intentionally share a supplier’s commercially confidential information with another third-party supplier.  As such, your role requires a high degree of honesty, integrity and high judgement and a detailed understanding of what constitutes confidential information and the requirements for sharing that information.  As a QS with 15 years’ experience, I find, on the balance of probabilities, that it is highly unlikely that you were not aware of the confidentiality of the information shared.  I find your explanation for the use of the blind copy function as less than plausible or truthful.  Your role requires a high degree of trustworthiness that you have failed to exhibit in your conduct throughout this process and as such I find that your dishonest conduct constitutes a breach of the Amazon Code of Business Conduct and Ethics and the Amazon Policy: Disciplinary – IRL ‘acts of dishonesty’ and ‘any dishonest conduct in connection with the performance of your duties’ and that his constitutes gross misconduct.”

We know that, aside from the substantive cause of dismissal, the fairness of a decision to dismiss an employee stands or falls on the reasonable behaviour of the employer during the disciplinary process.  In the same way, an employee is expected to act reasonably during an investigation and to provide truthful explanations regarding the issues being investigated.  The complainant was on notice by way of the report of December 8th 2021 that his responses at the four investigation meetings were found to be dishonest.  Mr Kelly reached the same conclusion at the disciplinary meeting, when the complainant had a second chance to explain his actions truthfully.  I am satisfied that the complainant was not dismissed because he was dishonest, but that his dishonesty compounded his employer’s concerns about his behaviour. 

Conclusion

I have considered all the facts and the evidence presented to me over two days of the hearing on this matter.  On the substantive issue of gross misconduct, it is my view that this was a reasonable conclusion for the respondent to reach and I find that the decision to dismiss the complainant was therefore also reasonable.  I am satisfied that, during the process that led to his dismissal, the complainant was presented with the issues of concern regarding his conduct and he was given an opportunity to respond.  He declined the option of being accompanied at meetings.  His responses were considered, and the decision-maker concluded that his explanations were dishonest.  He exercised his right to appeal, and, following an appeal hearing, the decision to dismiss him was not overturned.  I am satisfied that the respondent’s procedure was fair and in compliance with the principles of natural justice.

I have concluded that the decision of the respondent to dismiss the complainant was not unreasonable and I find that the process was fair.  On this basis, I decide that the complaint under the Unfair Dismissals Act is not well founded. 

In his submission under the heading of Part II of the Organisation of Working Time Act 1997, the complainant said that he did not get a daily rest or sufficient breaks during the working day.  He also claims that he worked at weekends, resulting in him being deprived of his entitlement to weekly rest breaks.  Finally, in breach of s.15 of the 1997 Act, he claims that he worked excessive hours.

Evidence of the Complainant

In his evidence, the complainant said that following his commencement in the job in June 2020, he worked from home.  He said that he started work between 8.00am an 8.45am and that he occasionally worked until 2.00am.  He said that worked during mealtimes.  In the first six months, he worked every weekend and he took just one day off.

The complainant said that he normally worked until 10.00pm or 11.00pm and that his day was “pretty much full.”  He then said that he worked a lot of weekends in the first six months.  He knew that his colleagues in Dubai worked on Sundays, so he sent them emails on Sundays.  After the first six months, the complainant said that he recalls that he got a general email in which staff were told not to work at weekends.  Following the receipt of this email, he said that he didn’t send many emails at weekends.  He said that he couldn’t remember if he received emails at weekends but he thought that most of the emails were sent during the week.

Soon after he started in the job, the complainant said that “there were comments that I wasn’t taking ownership of things.”  One job was over budget and he was taken off projects to work on that job.  He said that he was told that it was up to him to “drive this project.”  He said that his manager told him that things move fast.

He accepted that he took time off at Christmas 2020.

After the first six months, from the beginning of 2021, the complainant said that he continued to work long hours.  He took two weeks’ paternity leave in February 2021 when his third child was born.  He said that he got calls from work in the second week of his leave.  There were issues on a project when a QS walked off the site and he was trying to support the construction manager when he had no QS.

Following the birth of his daughter, the complainant said that his hours may have changed.  He continued to work late however, until 10.00pm or 11.00pm.  He attended weekly meetings with his manager who was based in Seattle.  The meetings were held at 8.00pm or 9.00pm to accommodate staff in different regions.  He continued to start work at 8.00am or 8.30am.  He brought his two younger children to the crèche and collected them in the afternoons.  However, he said that he spent most of the day working.

On Mondays and Tuesdays, the complainant said that he worked until 1.00am.  On Wednesdays, he worked until 11.00pm and on Thursdays, he worked until 9.00pm.  He said that he finished on Fridays between 4.00pm and 6.00pm.  He said that he didn’t work as many weekends after the new baby was born.  On Sunday evenings, he checked the work lined up for Mondays.  

By the end of September 2021, the complainant said that he had taken four days’ holidays that year.  He couldn’t remember if he worked on those days.  On October 26th, he was going to take holidays, but on the Thursday before, he was given a task to create a new advance payment process and this had to be done by October 21st.  He said that he was working on the morning of his daughter’s christening.

Concluding his evidence on the issue of excessive working hours and breaks, the complainant said that between June and December 2020, he took about 11 days’ holidays.  He said that he worked on some of the days.

Between January and November 2021, when he was suspended, the complainant said that he took nine days’ holidays and two weeks’ paternity leave.

Cross-examining of the Complainant

Ms Guinness referred to the complainant’s statement at the first investigation meeting on November 8th 2020, that he worked between 55 and 60 hours a week.  His submission for this hearing, he stated that he worked between 90 and 95 hours a week.

The complainant replied that his position is that he always worked in excess of 55 or 60 hours.  In the first six months, he said that he worked around 90 or 95 hours a week.  He said that he was getting negative feedback and he felt that he had to deliver.

Ms Guinness referred to an issue in August 2021 when the complainant raised an issue about being asked to support a Europe, Middle East and African project.  When he questioned this with his manager, the task was rescinded.

Ms Guinness asked the complainant if he told his manager that he was working long hours and he replied that he did, although he didn’t tell her that he worked until 2.00am.  He said that he was fatigued a lot of the time and he was informed that work would be taken off him.  He felt that this would be a penalty because there was pressure in the job to take on new initiatives.  He said that there was no need for work to be taken off him. 

The complainant said that he doesn’t remember if he read the company’s grievance procedure or the policy on annual leave.  He said that he told his manager that he was working excessive hours.  He said that the work he was doing was seen “in a receptive light,” but that he was tired and burnt out.  He said that this may be why he blind copied the email to PM Group.

Re-direction by Ms Madden

In response to further question from Ms Madden, the complainant said that he was never asked how many hours he worked.  He said he didn’t think this was considered to be an issue.  He said that he told his manager that he was very tired by Wednesday or Thursday every week.

The complainant alleged that he worked between 90 and 95 hours each week during the first seven to nine months of his employment with the respondent.  In effect, this means that he worked 13 hours a day, seven days a week.  The respondent has reviewed the complainant’s work emails and there were only nine weekend days between June 2020 and March 2021, when the complainant corresponded with anyone regarding work.

In an email to his manager on August 19th 2021, the complainant raised a concern with her about his workload and why he was being asked to support the Europe, Middle East and African business.  His manager withdrew the work allocation and thanked the complainant for identifying the issue.

The complainant gave two examples when completion dates for projects were shortened by four or five weeks.  The respondent’s case is that this is not unusual and that the complainant was given adequate notice of the changes and had time to complete the projects within the revised timeframe.

In his submission, the complainant said that on October 21st 2021, he was asked to complete an assignment before going on holidays the following day.  The respondent has established that the complainant was due to go on leave on October 26th, four days after he was required to complete the work.

In relation to annual leave, the complainant commenced work with the respondent on June 2nd 2020 and he took nine days’ holidays and two days of time off in lieu up to the end of December year.  When he was suspended on November 8th 2021, he had taken eight days’ holidays.  The remaining holidays that he did not take were carried over into 2022.  When his employment was terminated, he was paid in lieu of his outstanding holidays.

In his evidence regarding this matter, the HR business partner, Mr Diver said that in 2017, the company reviewed its compliance with the Organisation of Working Time Act.  He said that there are working hours tracking systems in place, but not for all employees.  He said that they have a holiday tracking system and that it is not unusual for an employee to carry over leave from one year to the next.

Mr Diver said that his team looked at the complainant’s email activity over the last nine months of his employment and, during that timeframe, he sent emails on nine weekend days.

Cross-examining Mr Diver, Ms Madden suggested that, at weekends, the complainant could have been doing work other than writing emails.

As these complaints were submitted to the WRC on July 28th 2022, the cognisable timeframe within which I have jurisdiction to consider the alleged breaches of the 1997 Act is from March 1st until July 28th 2022.  The complainant was not at work during this timeframe, having been dismissed on February 2nd 2022.

On the complainant form he submitted to the WRC, in accordance with s.41(8) of the Workplace Relations Act 2015, the complainant sought an extension of the timeframe from six months to 12 months, bringing the alleged breaches within the three-month period from July 29th until November 1st 2021, when he was suspended.  The reason for seeking the extension of time was given as “the issues were initially being addressed using the internal remedies.”  The complainant provided no evidence that he sought to resolve his concerns about his working hours through the proper channels, apart from his assertion that the told his manager that he was tired.  Even if he raised a grievance internally, he was not prevented from submitting a complaint to the WRC within the statutory time limit of six months and, at the very least, prior to his dismissal.  Having submitted his complaint under the Unfair Dismissals Act on June 15th 2022, no explanation was provided as to why these complaints were submitted on July 28th 2022 and it seems to me that they were an afterthought. 

I decide that these complaints are not well founded.

This is a complaint regarding the complainant’s final payslip which the respondent provided to him on February 28th 2022. He received another payslip on April 28th, which appears to indicate that some wages indicated as holiday pay were being recovered and remitted back to the respondent.  The complainant said that he didn’t receive his final payslips until they were posted to him some time after he was dismissed.  He said that he got a letter from the respondent telling him that he had been overpaid in holiday pay.

The respondent’s position is that the complainant was paid the correct amount in wages at the termination of his employment and that he received payslips showing the amount paid.  No wages are owed to the complainant and he was sent copies of his final payslips.

CA-00051979-010:  Complaint under the Payment of Wages Act 1991

I am satisfied that, at the termination of his employment, the complainant received the holiday pay to which he was entitled.

CA-00051979-011:  Complaint Regarding Minimum Notice

As I have concluded that the complainant’s dismissal for gross misconduct was not unfair, in accordance with s.8 of the Minimum Notice and Terms of Employment Act 1973, I find that he was not entitled to notice or pay in lieu of notice.  In this regard, I note the decision of the Labour Court in Clogrennane Lime Limited and Joseph Curran, MN/16/1. 

I decide that these complaints are not well founded.

Dismissal, reasonableness, gross misconduct