INDUSTRIAL RELATIONS ACTS, 1946 TO 2004
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
BRAY WOMEN'S REFUGE CENTRE
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY DERMOT HEWSON B.L.)
Chairman: Mr McGee
Employer Member: Mr Doherty
Worker Member: Mr Nash
1. Appeal of Rights Commissioner's Recommendation R-044532-IR-06/MMG.
2. The Worker concerned has been employed as a refuge worker covering night shifts since 19th February 1996.
While working on the night of 7th April 2006 the Worker and a colleague discovered a highly sensitive e-mail on one of the Refuge’s computers. The author of the e-mail, a former Manager, was contacted and the e-mail deleted.
The matter came to light when the former manager who was concerned that her computer had not been wiped prior to her departure contacted the current Manager. Subsequently the Worker was accused of a breach of confidentiality by ringing the former manager.
A number of meetings took place and correspondence was exchanged between the Manager and the Worker concerned. Following a board meeting it was decided that the disciplinary process be commenced for the Worker and her colleague. The Worker denied any breach of confidentiality and refused to sign a document admitting to such a breach. A verbal warning was issued on the 12th July 2006 and expired on the 12th December 2006.
The issue was referred to a Rights Commissioner for investigation and recommendation. His recommendation issued on the 21st March 2007, as follows:-
“ … It is my recommendation that the parties therefore agree to draw a line under this matter as an incident that has occurred and has been dealt with.”
The Worker appealed the recommendation to the Labour Court on the 11th April 2007, in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 25th July, 2007.
3. 1. The Worker maintains that there was no basis for the disciplinary proceedings against her as there is no definition, either in the disciplinary policy or the confidentiality policy, expressly or implied, as to what constitutes a so-called breach of confidentiality.
2. The Worker further contends that fair procedures have at no point been followed by her Employer. She maintains that it was predetermined that she was guilty of wrongdoing and that she was also deprived of the benefit of a fair hearing.
3. The Worker believes that the Refuge was not entitled to issue her with a verbal warning as the manner in which the verbal warning was issued to her was, she contends, contrary to the BWR (Bray Women's Refuge) Organisation Policy Document.
4. 1. The Company maintain that there was a duty and obligation on the Worker to report the fact that she had, inadvertently or otherwise, come across information, which was blatantly confidential and highly sensitive.
2. There was a clear breach of confidentiality when the Worker contacted an individual who did not work for the Refuge regarding a highly sensitive letter.
3. The Worker displayed a disregard for Company policy by playing a part in the deletion of the letter and by sending a copy of all correspondence to all board members.
4. The Company believe that the disciplinary action taken was fair and warranted in the situation and was only issued after the Worker had received ample opportunity to prevent it by signing a document giving an assurance of confidentiality.
The Court has carefully considered the extensive submissions made by the parties.
There is little doubt that the Worker's action on the night concerned in deleting the e-mail at the request of a person no longer within the employment of the Refuge was ill-advised. The Court would, however, accept that her actions were motivated by the best of intentions and that her attempt to maintain confidentiality became an inadvertent breach of such confidentiality. This was compounded by her failure to report the matter to Management.
a) the generally vague nature of both the Refuge's "Organisational Policy Manual" and the Disciplinary Procedure
b) the Worker's motives, spotless employment record to that point and obvious conviction to the cause of the Refuge and
c) the fact that there had been, until a few days prior to this incident, no well-defined chain of management/responsibility
The Court's view is that this was a case where counselling (as set out in the policy document) would have been the more appropriate route rather than the disciplinary sanction of a verbal warning.
The Court, accordingly overturns the Recommendation of the Rights Commissioner and decides that the warning should be expunged, while heartily endorsing the final paragraph of his Recommendation.
The Court so decides.
Signed on behalf of the Labour Court
3rd August, 2007______________________
Enquiries concerning this Decision should be addressed to Madelon Geoghegan, Court Secretary.