ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00009156
Parties:
| Complainant | Respondent |
Anonymised Parties | Chief Executive Officer | Accountant |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00011700-002 | 01/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00011700-004 | 01/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00011700-006 | 01/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00011700-007 | 01/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts | CA-00011700-008 | 01/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00011700-009 | 01/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00011700-010 | 01/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00011700-013 | 01/06/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00011700-014 | 01/06/2017 |
Date of Adjudication Hearing: 14/02/2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, andfollowing the referral of the complaint to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
COMPLAINTS WITHDRAWN AT HEARING.
The following complaints were withdrawn by the Complainant at the Hearing –
CA-00011700-002 Payment of Wages Act, 1991 – 2015
CA-00011700-004 Payment of Wages Act, 1991 – 2015
CA-00011700-007 Unfair Dismissals Act, 1977 – 2015
CA-00011700-008 Industrial Relations Act, 1969
CA-00011700-013 Protection of Employees (Fixed-Term Work) Act, 2003.
CA-00011700-014 Protection of Employees (Fixed-Term Work) Act, 2003
CA-00011700-011 AND 012 European Communities (Protection of Employees on Transfer of Undertakings ) Regulations 2003 S.I. 131 OF 2003
Background:
The Complainant Was employed as Chief Executive Officer with the Respondent on a Fixed-Term Contract of Employment on 5th September 2016 until the employment terminated on 26th May 2017. The Complainant was paid an annual salary of €72,000 and he worked 37.5 hours a week. The Complainant referred a complaint to the Workplace Relations Commission (WRC) on 29th May 2017 under the Protected Disclosures Act, 2014, alleging he had been penalised by the Respondent for making a protected disclosure. |
Summary of Complainant’s Case:
The Complainant stated that he commenced employment with the Respondent as their CEO on 5th September 2016. He was provided with a Fixed-Term Contract of Employment for a period of 12 months. Merger discussions were in process with another Body at this time and he stated that he was informed he may secure a position in this enlarged entity if the merger was successful. The Complainant stated that he made a “Protected Disclosure” to the Chair of the Audit Committee, named, on 4th April 2017. He stated that while working at his desk on 4th April 2017 he turned to his PC to check incoming mail where he read a note that an attempt had been made to hack his email. He noted this attempted hack was time stamped at 11.22pm on Friday 31st March 2017 at a location in Ennis, Co Clare. He outlined his concernsthat a third party had his gmail account and further that as a result their IT System had been successfully compromised but the Respondent were unaware of it. He stated that he named another employee in the Company who may be responsible. He stated he never heard further from the Respondent in relation to this incident. The Complainant outlined in detail in his written submission incidences at the commencement of his employment – his working relationship with another three named employees – the tender process for IT Services, all of which occurred prior to the Complainant lodging his “protected disclosure” on 4th April 2017. He referred to the meeting of the “Council” of February 2017 at which he gave his previously circulated report during which he asserted he was the subject of robust interrogatories from named participants. He was requested to then absent himself from the meeting because of a complaint from a named participant at the meeting. . He stated that he attended the April Council Meeting at which he presented his circulated report. During this meeting he stated that an issue arose concerning a temporary person who had been recruited from an agency who was complaining about the “toxic environment” in the workplace. He asserted this was a hijack situation as he had not been informed in advance of this. He also asserted that the Chairperson/President of the Respondent then raised a number of issues which he felt the CEO had not completed from the list of “Planning for 2017” which he had forwarded to the CEO on 5th January 2017. He was requested to leave the meeting and he stated that he was subsequently informed that he had a choice, to resign or accept a diminution in his duties. He completed the assigned work but was then left without any tasks or responsibilities. The Complainant stated that the Chair/President entered his office on 10th May 2017 during which he was asked how things were and he responded and stated that he felt he was being punished for making a protected disclosure to the Head of Audit. The President stated he was not aware of any protected disclosure and left the office. The Complainant stated that on 12th May 2017 he was in his office when the President, named, a named Director and the Deputy President entered the office. He was informed that the Respondent was not happy with his work and that accordingly his employment was being terminated forthwith. He left the office and was given a letter as he left. The Complainant stated he had a meeting with the Director of Finance and a named Director on 2nd June 2017 and he presented a note of that meeting. The Complainant alleges that he was penalised for making a protected disclosure under Section 12(3)(C) of Schedule 2 of the Protected Disclosure Act. |
Summary of Respondent’s Case:
The Respondent stated there was no protected disclosure as there was an unsuccessful attempt and that Google had informed him “Google stopped this sign-in attempt, but you should review your recently used devices”. The Complainant did phone a named Chair of the Audit Committee but he did not forward the email he had received from Google. The Respondent also stated that the Council Meeting the Complainant alleges took place on 28th February 2017 in fact took place on 28th March 2017 at 3.30 pm in Sandyford. The Complainant also alleges there was a Council Meeting in April 2017 when in fact there was no Council Meeting held in April 2017 and the Complaint had not provided any evidence to support his allegations. The Respondent also stated that the President of the Respondent had sent an email dated 5th January 2017 to the Complainant setting out 10 items that required planning for 2017. The Respondent was requested to forward this post the Hearing and to copy to the Complainant, which was done on 20th February 2018. The Chair/President gave direct evidence at the Hearing in which he stated that the Complainant had been recruited in September 2016 as the Chief Executive Officer. He stated he had not been made aware of any protected disclosure of 4th April 2017. He stated he did have a meeting with the Respondent on 10th May 2017 in relation to a number of staff related issues which he identified and stated that the Complainant seemed to have an inability to conclude tasks assigned to him including the IT Contract which the Respondent stated he, the Complainant, did not sanction. The named Deputy President also gave direct evidence at the Hearing during which he stated he was not aware of any protected disclosure being made on 4th April 2017. |
Findings and Conclusions:
On the basis of the evidence and written submissions I find as follows – The Complainant stated that he received a notice from Google on Friday 31st March 2017 as follows – “Someone just used your password to try (his cited email). Details Friday, March 31, 2017 pm (Ireland, Ennis, Clare, Ireland) Google stopped this sign-in attempt, but review your devices now”. The Complainant alleges he made a verbal protected disclosure to a named person of the Audit Committee on 4th April 2017 but he did not disclose the message from Google to anyone. Section 6 of the Act deals with disclosure to the Employer or other responsible person. It provides as follows – “(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”. The evidence was that the Complainant did not make a “protected disclosure” to his Employer but rather to the Chair of the Audit Committee. The evidence also was that the Complainant did not show the Chair of the Committee the message from Google. There was no explanation from the Complainant as to why he did not make the disclosure to his Employer. The Complainant also sought to imply that a named employee of the Respondent Company had lived in Ennis, Co Clare some 10 years previously and retained a home there that she was responsible and that she had his password to his gmail account but there was no evidence to support this allegation. Section 5 sets out a definition of a Protected Disclosure. Section 5 (5) of the Act provides as follows – “ A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the workers employer to detect, investigate or prosecute and does not consist of or involve any act or omission on the part of the employer”. The Complainant was Chief Executive Officer of the Company and if he believed that there had been a breach of the Company IT System or that an employee of the Company was responsible for the breach then surely it was his responsibility as CEO to have the matter investigated. Likewise there was no evidence presented at the Hearing that the breach of the Complainant’s gmail account involved any act or omission on the part of the Respondent. On the basis of the evidence and my findings above I declare this complaint is not well founded as there was no act or omission on the part of the Employer and as Chief Executive Officer of the Company it was his responsibility to have the matter investigated as set out under Section 5(5) of the Act. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
In accordance with Section 41(5) of the Workplace Relations Act, 2015 and in view of my findings above I declare this complaint is not well founded. |
Dated: 02 May 2018
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Key Words:
Protected Disclosure - Section 5(5) of the Act relevant as the Complainant was Chief Executive Officer |