Complainant

Respondent

Parties

Daniel  Hatton

Fortem Capital Ltd T/A Fuse

Complainant

Respondent

Anonymised Parties

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Representatives

Arthur Cush B.L., and Callie Nic Rallaigh, B.L., instructed by  Kenny Sullivan Solicitors

 Geoff Walker, Managing Director

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Sick Leave Act 2022

CA-00060687-001

21/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00060687-002

21/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00060687-003

21/12/2023

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

CA-00060687-004

21/12/2023

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

CA-00060687-005

21/12/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and the respondent owner undertook to give their evidence by affirmation.

At the outset, the complainant withdrew the two pay claims under the Payment of Wages Act and the Organisation of Working Time Act.

CA-00060687-001 Sick Leave Act

The respondent submitted that its decision to terminate the complainant’s contract was not influenced by his sick leave. It was solely due to his breach of confidentiality.

CA-00060687-002 Protected Disclosures

THE respondent denied that it penalised the complainant as a result of making a protected disclosure.  The respondent submitted that it swiftly clarified the particular payments to complainant and confirmed their legitimacy.

CA-00060687-003 Unfair Dismissal

The respondent submitted that the complainant’s termination was justified and consistent with the company's grievance procedure and policies. The complainant was provided with sufficient opportunities to justify his decision to send confidential information to his personal email, bypassing the use of his work email or laptop, which were available to him. Regrettably, he failed to provide a reasonable explanation for his actions and was dismissed.

The respondent submitted that while providing sick leave cover for the complainant it was discovered that he had sent confidential company information to his personal email. This included income reports, member details, sales data, supplier lists and financial forecasts. The HR specialist was notified, and suggested contacting the company solicitor for legal advice. The nature of the information transferred to the personal email strongly suggests an intent to use this proprietary data for his own benefit, specifically in establishing a competing fitness business. The respondent suggested that a case in point was the unauthorised transmission of their comprehensive checklists for setting up a new gym. The action is particularly questionable given their clear stance on not expanding with new gym facilities in the foreseeable future.

The respondent submitted that after receiving advice, a meeting was held on 11 December 2023 to discuss the complainant’s health and return to work.  After he confirmed he was feeling great, key areas of his role which were being neglected that had been resolved while he was on leave were discussed. He was then asked him about the confidential data that he had emailed to himself. He offered no satisfactory explanation. Unfortunately, the complainant’s account of the events during the meeting diverges significantly from what actually transpired, prompting the decision to only communicate with him via email or in a witnessed forum thereafter.

The respondent submitted that the complainant was offered the opportunity to bring a nominated person along with him to the meeting but decided to attend alone. The meeting on December 11, 2023, was conducted in a calm and respectful manner. During this meeting, the complainant informed the respondent of his intention to submit his resignation via email later that day, a decision the complainant had discussed with his wife the previous evening. Following the meeting, the owner and complainant spent time in the town together engaging in friendly conversation. Upon discovering that he was without his car, the Managing Director offered him a lift home, which he accepted.

The respondent submitted that later that evening, he was taken aback by the complainant’s email, which presented a markedly different account of the interactions. To ensure accuracy and transparency, the respondent responded the next morning at 7:29 am with a detailed and factual recounting of the meeting and the time spent together afterwards.

The respondent submitted that following the meeting on December 11, 2023, the complainant raised concerns about 'irregular payments' via email, to which the respondent promptly responded with clarification of their legitimacy. Despite this, he revisited the issue during a subsequent meeting on December 14, 2023, which was officially recorded. In this meeting, the respondent provided additional clarification regarding the payments in question, ensuring full transparency.  During the meeting, which was held to discuss the data breach, the complainant refused to look at the evidence or offer any satisfactory explanation. He did however admit to taking screenshots of the company's bank account and noted that the respondent would "find worse" if they spent more time looking through his emails.

The respondent submitted that considering the breach, the lack of any explanation and the complainant’s concerning comments, the board decided on the complainant’s dismissal, offering five weeks' notice pay despite being advised that they had no obligation to do so.  The complainant’s employment was formally terminated on 18 December 2023 and he subsequently appealed the decision.

An appeal meeting took place on 21 December, led by a company director.  Although the complainant presented a well-constructed appeal, he failed to directly answer why he used his personal email for confidential matters instead of his work email or laptop, which were readily available. He merely acknowledged forwarding the information to his personal email but left unaddressed the core issue of not utilising the provided work resources.  Despite following up with the complainant by email after his appeal, seeking clarification for the reason he did not use his dedicated work email or laptop, he did not provided a satisfactory reason for sharing confidential information with his personal email address.

 The respondent stands by its decision to terminate the complainant’s employment. The actions were taken with utmost professionalism, adhering to policies and legal obligations.

Summary of respondent witness oral evidence:

The respondent witness, the Managing Director, stated that the complainant was dismissed when he admitted to sending information to his personal email account and phone.  Procedures were followed in relation to the dismissal to provide information. The complainant was the respondents GDPR officer and would have been aware of the respondents GDPR responsibilities. It was noted that the complainant has still not returned work property.  This information breach was discovered when the respondent provided sick leave cover for the complainant.

The witness stated that he had no real evidence to present other than the written submissions and a written introduction. Cross examination was then permitted, and he was asked whether the complainant was employed on a hybrid basis using his personal phone. He replied that he was not sure. He confirmed that he was the person who conducted the investigation into the complainant’s behaviour. It was put to him that although a grievance was raised it was not dealt with, but he indicated that it was. He was asked was he an independent and impartial person to deal with the issues and he indicated that he was. He was asked whether he had any role in the appeal, and he confirmed that he was present at the meeting that discussed the appeal and that the decision of the board was unanimous. He clarified that the board consisted of himself and two other people.

CA-00060687-001 Sick Leave Act

The complainant submitted that he took sick leave due to work related stress. His employer was not happy with this and subsequently told him at a return to work meeting that he did not want someone "weak" in charge of the group, he was told that the employer wanted someone physically strong and healthy to be working for him, not someone who lies in bed sick for three weeks.  The complainant submitted that his employer later told him that I had to resign or be dismissed

CA-00060687-002 Protected Disclosures

The complainant submitted that he raised concerns with his employer about irregular payments being made from the company to a party that was connected to the employer. When he raised this issue, he was told that he had breached company security, and it was suggested that he had tried to send various emails to himself. He was told that he had to resign.

The complainant submitted that he was told that the company solicitor had advised that he had broken the law and that it was a serious matter.  He submitted that he was subsequently subjected to a sham disciplinary process that was unfair and denied him the chance to defend himself.

The complainant submitted that he filed a grievance which was not acknowledged and was completely ignored.

CA-00060687-003 Unfair Dismissal

The complainant submitted that he had taken three weeks stress leave before being dismissed and that his employer was not happy with him being unwell with stress and anxiety. He submitted that allegations were made against him that were contrived and without any foundation and that he was subjected to a sham disciplinary process and appeal.   The decision was made to terminate his employment either when he went sick, or when he raised the issue of irregular payments to a party connected with his manager.

Summary of complainant’s evidence:

The complainant gave evidence regarding his employment with the respondent. He started work in January 2018 across a number of locations for the group. He confirmed that he was the GDPR compliance officer but noted that he had received no training. He stated that when he started work, his personal phone number became his work mobile. When asked why he did not simply use the work laptop provided to him, he stated that there was no scanner and stated that he took a photo, cropped it, emailed it into a shared Dropbox folder. He said that his employer paid his phone bill through a reimbursement arrangement. He stated that when he discovered that payments were being made to a person who was not a contractor nor an employee, he took a screenshot and saved it as a JPEG photo and he mailed it to himself. He also confirmed that on a previous occasion he had submitted his resignation but retracted it when his employer agreed to a certain changes being made to the business.

The Complainant gave evidence of a fractious relationship with his employer. He stated that the business owner was making payments to an acquaintance that were not in accordance with business norms. He stated that he also raised the issue of his huge workload and had raised concerns with the owner who indicated that he should go ahead and hire an additional person.

He further outlined comments made by the Managing Director as to his competence to hold his position. He stated that he had no idea that anything was being investigated and when it became clear that it was, he raised a grievance. He noted that the managing director instantly began insulting him and he left the meeting. He stated that he had no access to work emails and accordingly had no idea what documentation the managing director was referring to. He stated he was neither provided with the emails in advance of or prior to the meeting that resulted in his termination.

The complainant admitted that there was a free flow of documentation between his work and personal e-mail. He stated that he was invited to resign and when he did not do so his employment was terminated. He stated that he made a grievance but that it was not investigated.  The complainant stated that no grievance meeting was ever held and that he did nothing wrong. He stated that the appeal was held on 18 December 2023, but he was given no detail regarding the allegations against him. He suggested that the decision to dismiss him was decided beforehand and that the appeal was decided and that matters were simply handed back to the managing director to complete his termination.

The complainant suggested that neither the decision to terminate nor the appeal was carried out in an independent or unbiased fashion. There was procedural unfairness in that the person who terminated him was also involved in the appeal.

In respect of his efforts to minimise his financial loss he stated that he completed his first job application by the end of December and that he registered with a number of online employment resources reloading his CV’s on a regular basis. He stated that he was informed that he had received a new job at the end of February but started in the first week in March 2024. He noted that his base salary is the same as the old job but mentioned that he was able to expense fuel payments with his old job and that his mobile phone was paid for. He stated that he now has to pay fuel costs for travelling to and from work.

The complainant noted that although the payments were made out and he was told that they were legitimate, he was never given a reason as to why the payments were being made. He concluded his evidence by saying that he made 29 or 30 job applications during his period of unemployment.

Under cross examination he confirmed that although he dealt with GDPR matters he was not certified or trained, nor was he aware of being the GDPR officer.  He noted that he recognised the importance of handling confidential information but noted that he sent that information to his personal e-mail and he would have used his personal e-mail regularly for various purposes for the business.  As to the allegation that he sent a list of clients to his personal e-mail, he admitted that he did do so but that it was relevant for creating a WhatsApp group.

In relation to the payments being made out, he stated that the payments were being made to a named acquaintance of the managing director, to her personal account. He stated that those payments were being made without having received an invoice or without her being an employee. He believes that the company was in financial trouble at that time. He denied that he sent a copy of the financial forecast to his personal account. He denied that he sent a document to himself to potentially open his own business. He stated that the document was developed internally with him and confirmed that maybe he considered he might use it someday. He was asked whether he sent a list of suppliers to his personal e-mail but indicated that he couldn't recall, but that it may be possible that he did. He was asked whether he understood that content created while working in the company was the company's property.

It was put to him that his actions could have opened the respondent company to a large GDPR fine. The complainant noted that he did not want to resign over the payments, he did not want anything to do with the payments, but that the Managing Director threatened to fire him when he raised the issue.

The complainant was asked whether he had subsequently deleted the information he sent to himself including the screenshots, but he indicated that he could not recall the matter and he did not have access to that e-mail address anymore.  The witness confirmed that he had the company laptop and that confidential information was emailed to his personal e-mail account. It was put to him that he provided no explanation, on three separate occasions, as to why he sent the information to his personal account. It was noted that at the appeal, he wrote and read out at statement but he continued to state that he had no access to the documents and therefore could not refer to the context in which the documents might have been sent to his personal account.

It was put to the complainant that the first time he raised the matter regarding the payments was after the meeting regarding the information breach. He stated that he found the payments but had not presented those payments to the Managing Director until that meeting. It was put to him that he had received a response indicating that the payments were legitimate. He was also asked whether he accessed the companies bank account while out on sick leave but he indicated that as he had no access to either the calendar nor his e-mail threads he could not give any context to the question he was being asked. It was put to the complainant that he always had a work laptop and e-mail address and he was asked why would he need to use his personal e-mail for any business issues. He stated that during the transition from one system to another his personal e-mail was the only one available.

As regards sending financial reports to his personal email account, he stated that he was pursuing a bookkeeping course at the same time and was using the confidential information for that course. He was asked whether he had sought permission to use the documentation but said that he had not done so.  When is put to the complainant that he was considering setting up his own business he stated that he had no idea where this had come from.

The complainant then provided further clarification on his job search and his efforts to minimise his financial loss. He stated that he was earning €50,000 per annum but that he had had access to free meals parking and golf etc. He also noted that previously fuel was paid for by the respondent. He confirmed that he was paid 5 weeks in lieu of notice and that this brought him up to mid-January, 2024. It was put to him that accordingly that his financial loss amounted to five weeks earnings.

CA-00060687-001 Sick Leave Act

The complainant submitted that he was dismissed on the basis of having taken sick leave.  Although the complainant made reference to his employer having made a comment relating to his taking sick leave, he did not put forward arguments that indicated that the provisions of this Act were contravened.  Having considered the written and oral evidence presented in relation to this complaint, I find that there is no evidence that the Act was contravened.

CA-00060687-002 Protected Disclosures

The complainant submitted that he was dismissed on the basis of having made a Protected Disclosure when he raised concerns regarding payments made to an individual connected with the Managing Director but who did not appear to be either a contractor or an employee.    The respondent disputed this contention.  Having regard to the legislation, the dismissal may fall under the definition of a breach of the Act arising from the complainant having made a protected Disclosure. 

The Act defines breach as follows:

"breach" means an act or omission—

(a) that is unlawful and to which one or more of the following subparagraphs applies:

(i) the act or omission falls within the scope of the Union acts set out in the Annex that concern the following areas:

(I) public procurement;

(II) financial services, products and markets, and prevention of money laundering and terrorist financing;

(III) product safety and compliance;

(IV) transport safety;

(V) protection of the environment;

(VI) radiation protection and nuclear safety;

(VII) food and feed safety and animal health and welfare;

(VIII) public health;

(IX) consumer protection;

(X) protection of privacy and personal data, and security of network and information systems;

(ii) the act or omission affects the financial interests of the Union as referred to in Article 325 of the Treaty on the Functioning of the European Union and as further specified in relevant Union measures; or

(iii) the act or omission relates to the internal market, as referred to in Article 26(2) of the Treaty on the Functioning of the European Union, including breaches of Union competition and State aid rules, as well as breaches relating to the internal market in relation to acts which breach the rules of corporate tax or to arrangements the purpose of which is to obtain a tax advantage that defeats the object or purpose of the applicable corporate tax law;

or

(b) that defeats the object or purpose of the rules in the Union acts and areas referred to in paragraph (a)

Section 5 outlines what constitutes a protected disclosure and includes the following:

5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 7B, 8, 9 or 10.

(2) For the purposes of this Act information is “relevant information” if—

(a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b) it came to the attention of the worker in a work-related context.

(3) The following matters are relevant wrongdoings for the purposes of this Act—

(a) that an offence has been, is being or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,

(e) that the environment has been, is being or is likely to be damaged,

(f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur,

(g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement,

(h) that a breach has occurred, is occurring or is likely to occur, or

(i) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed or an attempt has been, is being or is likely to be made to conceal or destroy such information.

(4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory.

The Act further defines a disclosure in the following terms in Section

6. (1) A disclosure is made in the manner specified in this section if the worker makes it—

(a) to the worker’s employer, or

(b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly—

(i) to the conduct of a person other than the worker’s employer, or

(ii) to something for which a person other than the worker’s employer has legal responsibility,

to that other person.

Having regard to the foregoing, the reporting of a possible financial irregularity does not appear to fall within what constitutes a Protected Disclosure. 

Notwithstanding the foregoing, a protected disclosure must be followed up by some form of penalisation connected with that disclosure for the Act to have been breached.  In that regard, penalisation, as defined under the Act, includes the following:

"penalisation" means any direct or indirect act or omission which occurs in a work-related context, is prompted by the making of a report and causes or may cause unjustified detriment to a worker, and, in particular, includes—

(a) suspension, lay-off or dismissal,

(b) demotion, loss of opportunity for promotion or withholding of promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) the imposition or administering of any discipline, reprimand or other penalty (including a financial penalty),

(e) coercion, intimidation, harassment or ostracism,

(f) discrimination, disadvantage or unfair treatment,

(g) injury, damage or loss,

(h) threat of reprisal,

(i) withholding of training,

(j) a negative performance assessment or employment reference,

(k) failure to convert a temporary employment contract into a permanent one, where the worker had a legitimate expectation that he or she would be offered permanent employment,

(l) failure to renew or early termination of a temporary employment contract,

(m) harm, including to the worker’s reputation, particularly in social media, or financial loss, including loss of business and loss of income,

(n) blacklisting on the basis of a sector or industry-wide informal or formal agreement, which may entail that the person will not, in the future, find employment in the sector or industry,

(o) early termination or cancellation of a contract for goods or services,

(p) cancellation of a licence or permit, and

(q) psychiatric or medical referrals;

The complainant contends that his dismissal came about as a result of penalisation for him having raised a Protected Disclosure.  The respondent for their part suggested that the dismissal arose because the complainant was sending confidential company documentation to his own personal account for purposes, perhaps unconnected with work.

Although the accounts of the parties are at odds as to why the dismissal came about, the complainant has suggested reasons for the dismissal: arising from his sick leave, and arising from a protected disclosure and that it was an unfair dismissal.  The respondent insisted that the matter turned on the sending of confidential documentation to the complainant’s personal email accounts.  There is also an issue around the timing of the Protected Disclosure.

The parties outlined a history of a somewhat fractious employment relationship, where the complainant submitted and subsequently retracted his resignation on at least one occasion

On balance, I am not satisfied that the complainant has established facts from which it can be presumed that the dismissal came about in whole, or in part, due to his having raised a Protected Disclosure.  Therefore, I find that the Act has not been contravened.

CA-00060687-003 Unfair Dismissal

The complainant submitted that as regards the unfair dismissal, the process was both procedurally and substantially unfair. The Managing Director was central to the investigation, the dismissal and the appeal and that the appeal was prejudiced.  He stated that he was dismissed from making a protected disclosure. It was confirmed that his loss amounted to €961.54 per week for five weeks.

The respondent submitted that when the issues regarding the sending of company documentation to the complainant’s person email account came to light, they were investigated in accordance with the procedures and that they worked through the procedures correctly. It was noted that the complainant was paid 5 weeks’ notice even though that was not warranted.

The parties gave different accounts of the evolution of the employment relationship. The complainant indicated that he made a protected disclosure regarding payments being made to a person connected to the Managing Director. He stated that this was the cause of his employment being terminated meanwhile the employer stated that the complainant’s employment was terminated because he had sent documents to his personal email, In breach of GDPR regulations.  There was no coherent timeline but there was a series of cross allegations from the complainant and the respondent.

It is clear from the evidence of both parties that the complainant believes that he made a Protected Disclosure. It is also clear from the evidence of both parties that the complainant sent company documentation to his personal e-mail address. Some of the documentation was to do with the Protected Disclosure issue, however other documentation was not to do with the disclosure but seemed to be the complainant compiling useful documentation for some further project. The complainant confirmed this in relation to a number of financial spreadsheets which he was using while studying for a finance qualification.  He also confirmed sending a client list to his personal phone although this may well have been for the purposes of setting up a WhatsApp group as he suggested. It was also agreed between the parties that the complainant did not provide adequate explanation of why he sent and retained other documentation, although it has to be recognised that he argued that the documentation was not shown to him to provide an explanation. I am satisfied that he was aware of the documentation that was being referred to throughout the termination investigation.

When considering the investigation undertaken, it would perhaps have been better if the respondent had appointed somebody independent to conduct the investigation rather than a person against whom a Protected Disclosure was made, and where there seemed to be a personal animosity between the Managing Director and the complainant. The investigation also seems to have had an element of predetermination, as did the appeal, in that the same person, the Managing Director, who was investigating the matter was the person who made the decision on the matter and who also had a central role in the appeal process.  I find that this was not fair to the complainant.

Although the company was a smaller company, I am satisfied that a reasonable employer would have appointed an independent person to investigate the allegations and cross allegations. As to the reasons for the dismissal, I find that a reasonable employer would have terminated the employment of an employee who was sending such crucial financial information, and client lists, among other documentation to his personal email account. In that regard, I found that the dismissal was fair.

However, the manner in which the termination process was conducted leaves a lot to be desired, and there seems to be a fundamental lack of fairness in the manner in which the investigation was conducted by the Managing Director, who also conducted the termination procedure and who had a central role in the appeal process.  In this procedural regard, I find that the dismissal amounted to an unfair dismissal.

I note that the complainant, by not providing an explanation for the sending and retention of company documentation, when he was clearly aware of the nature of that documentation, contributed to the termination of his employment and I find that his contribution to the dismissal amounts to 50% of the dismissal.

Under the legislation I can consider awarding a sum of money for financial loss. The loss amounts to €4,807.70.  Accordingly, I find that the complainant was unfairly dismissed and that he is entitled to recover 50% of that, i.e. €2,403.85 in compensation for his loss which I consider to be just and equitable in all the circumstances of this case.

CA-00060687-001 Sick Leave Act

Having regard to the all the written and oral evidence presented in relation to this complaint, my decision is that the Act was not contravened.

CA-00060687-002 Protected Disclosures

Having regard to the all the written and oral evidence presented in relation to this complaint, my decision is that the Act was not contravened.

CA-00060687-003 Unfair Dismissal

Having regard to the all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was unfairly dismissed and that he is entitled to recover 50% of his loss.  I award him €2,403.85

Sick Leave Act – no contravention – Protected Disclosure – does not amount to a protected disclosure – Unfair Dismissal – reason for termination fair – procedural unfairness amounting to an unfair dismissal