EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Fiona Jessup – claimant UD346/2013
Power Home Products Limited - respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr. D. Winston
Ms. N. Greene
heard this claim at Dublin on 2nd April 2014 and 29th September 2014
Claimant: Mr. Andrew Whelan B.L instructed by:
Mr Paul Johnson, Donal Taaffe & Co., Solicitors, Malthouse Square, Smithfield Village, Dublin 7
Respondent: Dr Brian Aylward, Benchmarking Services, Somerville House, Clifton Lane, Monkstown, Co Dublin
The determination of the Tribunal was as follows:
Summary of respondent’s case
The claimant commenced employment as a purchasing assistant with the respondent company on 1st August, 2006 and was dismissed on 2nd November, 2012 for alleged breach of confidentiality with regard to sensitive information that was shared via email.
Giving evidence, the Managing Director, AL, told the Tribunal that he came across e-mails sent by the claimant to her husband giving details of supplier information and stock information belonging to the respondent which would be valuable information to competitors. On 17th September, 2012 the claimant was invited to a meeting and was suspended with pay pending investigation.
On 15th October, 2012 an investigation meeting was conducted by AC, HR consultant. The MD was in attendance at this meeting. As a result, the claimant was invited to attend a disciplinary meeting on 30th October, 2012. The MD had no further dealings with the case following the investigation meeting.
Under cross-examination, the MD confirmed that he had previous business dealings with the claimant’s husband. He was not aware of the context in which the e-mails were sent by the claimant and denied that the respondent wanted to get rid of the claimant. The MD indicated that the three Directors made the decision to dismiss the claimant and her dismissal was not related to the fact that the claimant was pregnant. He did not accept that the decision to dismiss the claimant was disproportionate.
In reply to the Tribunal, the MD stated that at he did not talk to the claimant at any stage about the e-mails.
The HR specialist gave evidence. She has worked in HR for 13 years. She is not an employee of the respondent. Her husband is employed by the respondent and he approached her to provide advice on correct procedures as a serious matter had arisen.
She subsequently conducted the investigative meeting with the claimant. The claimant accepted that she had sent the emails under investigation to her husband. The claimant did not accept that sending the emails was wrong despite accepting that she was in breach of the confidentiality clause in her contract. The claimant felt that if the MD has an issue with the emails he should first have raised the issue with her informally.
When she had completed the investigation the HR specialist compiled a report and forwarded it to the Administration Director and also provided a suite of documents.
Under cross examination the HR specialist said that despite being briefed on the allegations by the Administration Director she was at all times impartial in her dealings with the claimant.
The Sales Director gave evidence. Following the investigation he wrote to the claimant asking her to attend a disciplinary meeting. The Sales Director conducted the disciplinary meeting. He considered the emails sent by the claimant to her husband to be ‘dynamite’ because it contained a list of suppliers and potential suppliers to the business. The other contained a complete stock list complete with valuations and margins that could be used to undermine the business. The information was highly confidential. He did accept that the business had not suffered any loss as a result of the emails.
When the MD discovered the emails on a Friday the 3 directors discussed the matter over the weekend before deciding to suspend the claimant on the Monday. They had not decided to get rid of the claimant. At the disciplinary meeting the Sales Director asked the claimant 5 questions only because that was all the information he needed. It was a short meeting.
The Sales Director read the claimant’s personal statement and spent some time reflecting before deciding to dismiss her.
The Sales Director did discuss the claimant and her actions in an exchange of emails with his sister and her husband in Australia before the disciplinary hearing.
The claimant gave evidence. She started working in 2000. Then in 2003 the company divided into two branches and she continued working in the branch run by the Managing Director. In 2004 she went from sales to purchasing and from there to credit control. It was a good place to work and people socialised together outside work.
The claimant came to work as usual on Monday 17th September 2012. She spoke to the MD and made tea. At 2.00pm the Administration Director called her to a meeting together with a colleague to act as a witness to her suspension. The claimant was lost for words especially as the Administration Director said that she could not tell her the reason. The claimant asked for and was given a copy of her contract of employment together with a suspension letter and was told to gather her belongings and leave. She was surprised that one of the directors did not speak to her about the matter. She was a long time employee and they all knew her. It was two days later when the claimant was informed of the allegations against her. The claimant was not given a copy of the procedure being used to investigate the matter and neither did she receive a copy of the Disciplinary Procedure.
The claimant felt that she had done nothing wrong. The first email complained of was sent by the MD to the claimant and 3 other employees. The claimant was feeling frustrated that management was complaining about employees rather than trusting them to do their jobs. She sent it to her husband. It had nothing to do with the attachment.
The second email was sent by the claimant to her husband on 20th June 2012. She was about to go on holidays and felt under pressure to update a spreadsheet. The previous year she had updated the spreadsheet but had done it by calculating each figure individually. The claimant emailed the spreadsheet to her husband because he was able to insert the formula to do the calculation and send it back to her. Her husband was known to the 3 directors and had no reason to be interested in the information.
The claimant could not believe that the HR specialist would investigate her. The HR specialist was married to her colleague that witnessed her suspension. The HR specialist said she would be impartial but the claimant had doubts. The claimant attended the investigation meeting and explained to the HR specialist why she had sent the emails. The claimant was given the minutes of the investigation meeting but only received the investigation report after her appeal meeting.
Following the investigation meeting, the claimant was called to a disciplinary meeting with the sales director. It was a very brief meeting. The sales director told her he would reflect and let her know the outcome. It was a stressful time for her. She received the letter of dismissal dated 2nd November 2013. The letter refers to an allegation of dishonesty but she was never dishonest and neither was she accused of dishonesty.
The claimant appealed the decision to dismiss her but was not successful in her appeal.
The claimant established loss.
The Tribunal carefully considered the evidence adduced. The claimant was dismissed because she sent 2 emails containing information that was in the respondent’s view confidential and commercially sensitive to her husband. This despite the respondent directors being acquainted with the claimant’s husband and knowing that neither he nor his employer was likely to benefit from the information. Further the emails had been sent several months before the respondent raised them as an issue and the respondent accepted that it had suffered no loss as a result.
There were flaws with the process used to dismiss the claimant. When she was suspended the claimant did not receive the allegations being made against her and neither did she receive a copy of the procedure to be used. The claimant had no previous disciplinary record and was an employee with 12 years’ service yet when the issue of the emails arose the MD spoke to his fellow directors, a sales man and the sales man’s wife but did not mention the matter to the claimant. The Sales Director also did not speak to the claimant about the emails but he had spoken to his sister and her husband regarding the matter, two persons, who were not involved in the company The Tribunal considered this a similar type of breach of confidentiality to the one the claimant was accused of.
Taking into account the faults in the procedures and the nature of the issue the Tribunal finds that the dismissal of the claimant was unfair. The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the claimant is awarded the sum of €19,000.00.
Sealed with the Seal of the
Employment Appeals Tribunal