EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Michelle Fitzparick MN152/2013
Westwood Club Limited
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr F. Cunneen
Mr. J. Dorney
heard this claim at Dublin on 25th August 2014
and 26th August 2014
Claimant(s) : Ms Eugenie Houston BL instructed by Ms. Avril Gallagher, Gallagher &
Company, Solicitors, 5 Ranelagh Village, Ranelagh, Dublin 6
Respondent(s) : Mr Stephen O’Sullivan BL instructed by Peter Duff & Co, Solicitors, 34
Main Street, Blackrock, Co Dublin
Summary of Case
The claimant was employed by the respondent company in a sales position from March 1999. While in general she had a good employment record she had received a written warning in February 2012 for use of her mobile phone in the workplace. She was also issued with a written warning for failing to follow company policy in respect of sales procedures.
The Tribunal heard evidence that on 6 August 2012 the claimant viewed and printed e-mails from a computer located in the sales area in an open plan office. The respondent company submitted that the e-mails were viewed from the private work e-mail of the claimant’s line manager, the company’s sales manager. A log from the company’s I.T. department was opened to the Tribunal showing a substantial number of e-mails printed from the aforementioned computer. In that regard the Tribunal was told that about 75 e-mails were viewed/printed in a 6.5 minute period between 1.18pm and 1.24pm. The respondent company submitted that these e-mails had been viewed and printed by the claimant after the sales manager had left the work premises at 10am on the day in question. The company stated that the actions of the claimant amounted to an erosion of trust as the claimant had scrolled through the private e-mails of the company’s sales manager and she was subsequently dismissed from her employment following an investigation and disciplinary process. The claimant subsequently appealed this decision to her area general manager and following an appeal hearing the decision to dismiss her was upheld.
The claimant gave evidence that she reported for work on the morning of 6 August 2012 and the sales manager was finishing his shift. She gave evidence that she was told to use a particular computer in the sales area as the other computer was broken. She said that she did not log on to the computer as it was already logged on. She said that she could not have viewed the e-mails if the computer had not been logged on. When the screen saver on the computer disappeared the subject material showed her name. She viewed the e-mail which contained three attachments. She accepted that she then printed off the e-mail and the attachments. She told the Tribunal that she pressed the “print” button over and over again as she was angry as the attachments contained lies about her. She took the documentation home with her. At the end of her evidence, in answer to a Tribunal member she said that she scrolled down on the computer to see if any other e-mails related to her. She did not see any other such e-mails and she then printed her contract of employment. She may have printed a further document concerning a written warning against her but denied that she printed any other material from the computer. She accepted that her actions were wrong but was angry at the lies which had been written about her. She accepted that she should have been subject to a disciplinary sanction but did not believe that she should have been dismissed.
She gave evidence that up to 6 August 2012 she had a good employment record but there had been some issues which the Tribunal regards as of secondary importance.
She gave further evidence that since her dismissal she has been employed for three periods of employment totalling nine months with three separate employers. This employment was of a temporary nature and carried a reduced salary than that which she earned with the respondent company. She is currently unemployed.
Section 6 (1) of the 1977 Act provides:
“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 (6) provides:
“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”
The words “substantial grounds justifying the dismissal” have two meanings, firstly they must be matters of substance rather than form and secondly the matters involved must be sufficiently big to justify the sanction. Substantial means big or large, and must be proportionate to the sanction of dismissal.
At the outset of the hearing counsel for the claimant argued that the dismissal was disproportionate, but also said she was putting the respondent on proof under section 6 (6). The Tribunal had difficulty with this position, as it seems difficult to argue proportionality on facts which are denied.
Counsel later conceded that her client did read and print certain e-mails and argued that the sanction was disproportionate. She also made some procedural points which the Tribunal viewed as having no importance.
During the disciplinary and appeal hearings the claimant admitted that she had read and printed e-mails, although it was not quite clear how far the admissions went. The Tribunal did, however, regard these admissions as being matters to her credit in assessing proportionality. However at the end of her evidence the claimant admitted in reply to one of the Tribunal members that she scrolled through a sequence of e-mails to find an e-mail relevant to her.
There was an issue as to whether an e-mail which referred to her was already open or whether she opened it. The Tribunal makes no finding on this point.
The Tribunal also had difficulty with the print log which showed 75 commands within 6.5 minutes. That would mean one print command every five seconds. The claimant said that she kept pressing the print button because she was angry. The Tribunal makes no finding on this point.
The claimant admitted from the outset that she had read and printed e-mails and that she was wrong to do so. The respondent took advice on the matter and said that this amounted to an “erosion of trust”.
Improper use of the e-mail and internet is a major issue in many companies today. This is particularly true in financial and technology companies but also applies to many companies where commercially sensitive information is stored on computer. The material which the claimant viewed was not commercially sensitive in any sense but related to her personally. She might have been entitled to that information under the Data Protection Act but that did not arise in this case.
To her credit the claimant admitted from the outset that she read and printed the e-mails and attachments and the Tribunal attach great importance to this in assessing proportionality. Given that it was information relating to herself the Tribunal is not convinced by the “erosion of trust” argument. The Tribunal therefore finds that the dismissal was a disproportionate sanction.
However the Tribunal must also have regard to the fact that the claimant was in the wrong, as she admitted from the outset. Among the matters to which the Tribunal must have regard in assessing compensation is one set down in section 7 (2) (f) of the Act as amended, “the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal”.
Under section 7 (1) (c) of the Act compensation is to be:
“…….in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances”.
The claimant assessed her loss of earnings at €34,334.00. The Tribunal is of the view that the sum of €15,000.00 would be “just and equitable having regard to all of the circumstances”.
The Tribunal awards compensation in the sum of €15,000.00 under the Unfair Dismissals Acts 1977 to 2007. The claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 fails as the Tribunal is satisfied that the claimant was paid in lieu of notice.
Sealed with the Seal of the
Employment Appeals Tribunal