ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004039
Complaint(s)/Dispute(s) for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts
Complaint(s)/Dispute(s) for Resolution:
Date of Adjudication Hearing: 27/10/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
In accordance with Section 13 of the Industrial Relations Act, 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
I've worked for the company nearly for 11 months as a General Restaurant Manager. Never had any disciplinary procedures taken against me. Incident occurred on the 30th of May,2016, where from 6:00 am in the morning I was trying to get through to the Operation Manager – Mr X, to notify that I do not have a keys for the restaurant, and would not be able to get in to work ( my shift was 10:00 am - 14:00). After sending a few texts and making a few calls, I couldn't get through. I went to work at 09:45 am, where I found Restaurant empty and locked. Usually there is a kitchen porter from 08:00am, but at that day he was sent to HACCP Level 2 training. As a roster for upcoming week is only being posted on late Sunday night, it gives no time to prepare for upcoming shift. Even after making another few calls around 10:00am on 30th of May, I got no answer. Only 15 minutes later, I got a text from the same OM saying, that I should have had keys. I explained that on couple of occasions I’ve requested a set of keys for myself but it wasn't provided ( even sent 2 screen shots of texts to prove it ), the reply I got : - Not good enough. Even after explaining the obvious, that roster was posted late on Sunday night (on my day off), I could organise a keys, and so that's why I am up from 6 am looking for them. I was told to stay outside of the restaurant and wait till the keys will be dropped for me, in order to do my Monday duties and that himself (OM) will be out in the Restaurant at 14:00 pm to check what is done. (All this was in texts so can be used as proof). After 13:00pm the OM came himself with the set of keys, opened the Restaurant and invited me to sit down for a minute, where I was told that my shifts for the 30th, 31st of May and 1st of June are cancelled, with no verbal or written explanation and to wait for the email as a meeting will be scheduled. The email was received on the 31st of May, saying the location, time of meeting. I had to send another email, questioning, the nature of it, where the reply was - Overall experience. I've attended the meeting with my colleague - AB (Chef), and there was also an assistant manager – AC. Meeting was held by MR.X - Operation Manager. During the meeting I was told that my contract is being terminated and I am being dismissed because of overall experience. As I mentioned that my probation finished on 28th of February 2016, (as it was 6 months probationary period), I was handed a letter stating that the company will pay me extra 1 week's wages, if I will not make a claim against it. I believe I was unfairly dismissed from my position, with no written or verbal reasons for suspension, and no written explanations of extended probationary period. Because of this I was suffering from work related stress, when being pregnant. And I am also the only income to the family.
Summary of Respondent’s Submission and Presentation:
The Respondent had arranged a meeting with the Complainant on the 2nd June 2016 to discuss her performance. The Complainant was notified by E mail of the subject matter and that she could if she wished bring a colleague to the meeting. E Mails of the Ist June 2016 and 31st May 2016 presented in evidence. It had been the Respondent’s intention to consider issuing a warning to the Complainant but was giving her a chance to explain her position and hear her side of the story before proceeding.
In the period between the 31st May 2016 and the 2nd June 2016 the Complainant accessed the Respondent’s Computer/IT System and download/copied to her own personal E mail account a large amount of highly confidential and most sensitive personnel details(other staff members details ) , details of supplier arrangements and accountancy records of the Company. In the view of the Respondent this constituted Gross Misconduct warranting Summary Dismissal.
At the meeting of the 2nd June 2016 the Complaint did not deny the IT downloading charges. Accordingly she was dismissed for Gross Misconduct.
Section 13 of the Industrial Relations Act, 1969 requires that I make a decision in relation to the case in hand.
Issues for Decision:
Did an Unfair Dismissal take place?
Legislation involved and requirements of legislation:
While there may have been some procedural issues in relation to the Complainant being furnished with the full subject matter for the meeting on the 2nd June 2016 these may be excused by the rapid pace of events between the letter/e mail of invitation of the 31st May and the meeting itself.
The Complainant did not deny downloading the IT Computer materials –most of which (save for some procedural manuals) were of a very sensitive nature. The material had the potential to cause very serious damage to the Respondent’s business and commercial reputation. It was clear to me at the oral hearing that the IT Materials could constitute a considerable “bargaining chip” at any meetings.
This action constitutes Gross Misconduct as set out in the Company Handbook. “Deliberate /Serious Damage to or misuse of the XXX Respondent property” “Misuse of Equipment/Dishonesty” among other sections.
Accordingly I recommend that the decision to dismiss was warranted and is upheld.
Dated: 20th January 2017