Complainant

Respondent

Parties

Jenny  Walsh

 Mid-West Simon Community CLG  

Representatives

Victoria Stephens SIPTU

Peter Dunlea Peninsula Business Services Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00062374-001

25/03/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00062374-002

25/03/2024

The complainant lodged the within claims on 25th March 2024 asserting that she was unfairly dismissed by the respondent after she was subjected to a disciplinary process for copying an external individual on correspondence in which she was reporting a suspected GDPR breach to her employer.

The claimant also submitted a claim under the Payment of Wages Act in respect of wages not paid in the period after her dismissal but before the appeal hearing.

The complainant also submitted an IR claim, but this matter was withdrawn.

The respondent disputes that the dismissal was unfair submitting that the complainant was dismissed for refusing to participate in the disciplinary process after it was discovered that she had copied an external person on data the subject of a GDPR breach.  The respondent submits that the complainant refused/failed to engage in the disciplinary process which took place in her absence resulting in her dismissal.

The respondent raised a preliminary issue asserting that it had not been correctly named in the claim form and was thus not on notice of the within claims until early 2025.  The respondent submitted that Simon Communities of Ireland Mid-West was named as the ‘respondent’ in this matter, but the respondent submits that no such entity exists and the previous correspondence was directed to Simon Communities of Ireland Mid-West CLG.

The respondent submitted that Mid-West Simon Community CLG has subsequently been made aware of these proceedings.  The respondent submitted that Mid-West Simon Community was the employer of the complainant and does not however accept they have been properly named respondent in these proceedings.

The ‘complainant’ in this matter submits that she was employed by the respondent from the 1st of January 2018 until her dismissal on the 12th of December 2023 by the respondent.

The complainant advised the hearing that she had cited the respondent’s name on the claim form as Simon Communities of Ireland Mid-west (Clg) and had cited the respondent’s address as her work address at Speakers corner Limerick where she had been employed by the respondent. 

The complainant also stated that there was only one Mid-West branch of the Simon Community and that it was clearly that Mid-West branch of the Simon Community who had been her employer.    It also emerged at the hearing that an attempt had been made to deliver the claim form to the Speakers corner building which was the premises where the complainant had worked but when the delivery was attempted it appears that the letter was either refused or that no one was there to accept the post and so it was returned undelivered.  

The respondent at the hearing stated that it may have been the case that there was no one on reception at the time to accept delivery of the letter as there had been a period in April where there was no receptionist  and so the shutters may have been down on the front of the office while employees were still working inside the office.   Following this the WRC notified the complainant of the failed attempt at delivery after which the complainant provided details of the Simon Communities Head Office to whom the claim form was then sent and who in turn successfully notified the correct branch i.e. the Mid-West Simon Community of the claim lodged against them.

I note that the respondent provided a submission in advance of the hearing and attended the hearing along with their legal representative.  I note that the complainant had provided the correct business address for the claim which is the business address of the within respondent and the location at which she was employed and also that an attempt at delivery was made but failed through no fault of the complainant. 

I am thus satisfied that the respondent was not disadvantaged or prejudiced by the complainant’s error in the naming of the respondent on the claim form.

The respondent at the hearing clarified that its correct name is Mid-West Simon Community CLG and accordingly I direct that the named respondent to this claim be amended to reflect this.

The respondent submits that

the complainant commenced employment with them on the 1st of January 2018 on foot of a fixed term contract

In the summer of 2023, two employees of the respondent raised a grievance regarding the complainant and a potential GDPR breach in relation to the disclosure of their personal information to a third party

 In response to the complaints the respondent contacted an external HR company to conduct an investigation regarding the grievances

The respondent submits that a HR adviser, Mr Rob Nolan (RN) was assigned as investigator and wrote to the complainant on the 28th of August 2023 setting out the terms of reference for the investigation of the grievance

It is submitted that RN met with the individuals who had raised the grievance on the 12th of September 2023 and met with the complainant on the 2nd of October 2023 accompanied by a representative.  Mr N s investigation concluded, and a report issued on the 3rd of November 2023

The investigation noted that the complainant had committed a GDPR breach by sharing private documents externally and upheld the grievance of the other employees and the matter was progressed through the disciplinary procedure

The respondent submits that on the 15th of November 2023 Ms Anand Quinn (AQ) was appointed as the disciplinary officer and on 17th November 2023 AQ wrote to the complainant inviting her to a disciplinary hearing on t21st of1st November 2023.  The complainant was also provided with copies of all the relevant documents in advance.

The hearing scheduled for the 21st of November 2023 was delayed as the complainant was on force majeure leave.

Ms Q further corresponded with the complainant’s representative Victoria Stephens (VS) regarding the disciplinary procedures.   In this email it was clearly set out that the disciplinary process related to the GDPR breach that had been previously investigated.

Ms Q sought to reschedule the disciplinary hearing with both the complainant and her representative VS.

 On the 22nd of November 2023 the respondent wrote to the complainant inviting her to a rescheduled disciplinary hearing on the 27th of November 2023 and again subsequently on the 30th of November 2023.

 The complainant, through her representative, declined to attend the hearing.

The respondent further invited the complainant to a disciplinary hearing on the 7th December 2023 and highlighted to the complainant that the disciplinary hearing would be held in her absence and that non-attendance on this occasion may in itself be treated as failing to obey a reasonable management instruction and may be deemed to be gross misconduct, the penalty for which could also lead to the summary termination of her employment.

This was further reiterated to the complainant in a number of emails ahead of the hearing on the 7th of December 2023.

The complainant did not attend, and the meeting took place in her absence

Ultimately on the 12th of December 2023, Ms Q issued the disciplinary outcome letter which dismissed the complainant. 

The complainant subsequently appealed this decision on the 18th of December 2023

An initial appeal hearing was held on the 4th of January 2024 however this was adjourned to allow for the discussion regarding the recording of the matter as agreed by all parties.

Ultimately the appeal hearing was held on the 15th of January 2024 with the complainant, her representative VS and Mark Kennedy, (MK) a board member of the respondent, as the appeals officer

Following the meeting the complainant’s representative raised a number of other concerns in a submission dated the 25th of January 2024.

 The outcome of the appeal was issued to the complainant on the 13th of February 2024 upholding her dismissal.

The Complainant submits that

She was employed by the respondent as a Foodbank and Distribution Co-Ordinator initially on a CE scheme on a part time basis from September 2015, and went on to receive a 12-month fixed-term full-time contract on 1st January 2018

She was dismissed by the respondent due to an alleged GDPR breach after she copied correspondence the subject matter of a data breach to her SIPTU representative on 14th of June 2023

The complainant submits that she was subjected to an investigation and disciplinary process which she disagreed with and continuously questioned

On the 14th of June 2023 the Complainant emailed the Respondent regarding materials that had been left on her desk containing information regarding colleagues and their views on how Mid-West Simon Community should align pay scales, the complainant had copied her SIPTU representative on this correspondence

The Respondent wrote to the Complainant and to the SIPTU Trade Union with a request to delete the correspondence shared within the email of the 14th of June 2023 and noted that it was a breach of GDPR that the Complainant had cc’d her Trade Union Advocate in the email reporting what she believed to be a GDPR breach to her employer

The complainant submits that the data was deleted immediately after it was requested

The Respondent following this then notified the Complainant of a Disciplinary process and the Complainant sought confirmation that the Respondent had notified the Data Regulation Office to report the alleged breach highlighted by the complainant

On the 17th and 22nd November 2023, the Respondent wrote to the Complainant to invite her to a disciplinary meeting regarding her alleged breach of GDPR

The Complainant’s employment was terminated on, 12th December 2023 following a disciplinary meeting conducted on the 7th of December 2023 in the complainant’s absence

The Complainant appealed her termination of employment on the 7th of December 2023

 The Complainant submits that she had repeatedly sought clarity in support of the Respondent’s allegations against her, and a response regarding her lack of payment throughout the Christmas period until the date of outcome of her appeal hearing on the 5th of January 2024

The Complainant appealed her termination of employment, and this was heard on the15th of January 2024

The Respondent wrote to the Complainant on the 19th of February 2024 to uphold her dismissal

The complainant submits that prior to this alleged GDPR breach she had on 30th September 2022 lodged protected disclosures to her employer which were investigated via the respondent’s appointed investigator and which concluded on 29 March 2023

The respondent submits that

the complainant commenced employment with them on the 1st of January 2018 on foot of a fixed term contract

In the summer of 2023, two employees of the respondent raised a grievance regarding the complainant and a potential GDPR breach in relation to the disclosure of their personal information to a third party

 In response to the complaints the respondent contacted an external HR company to conduct an investigation regarding the grievances

The respondent submits that a HR adviser, Mr Rob Nolan (RN) was assigned as investigator and wrote to the complainant on the 28th of August 2023 setting out the terms of reference for the investigation of the grievance

It is submitted that RN met with the individuals who had raised the grievance on the 12th of September 2023 and met with the complainant on the 2nd of October 2023 accompanied by a representative

Mr N s investigation concluded, and a report issued on the 3rd of November 2023

The investigation noted that the complainant had committed a GDPR breach by sharing private documents externally and upheld the grievance of the other employees and the matter was progressed through the disciplinary procedure

The respondent submits that on the 15th of November 2023 Ms Anand Quinn (AQ) was appointed as the disciplinary officer and on 17th November 2023 AQ wrote to the complainant inviting her to a disciplinary hearing on the 21st of November 2023.  The complainant was also provided with copies of all the relevant documents in advance.

The hearing scheduled for the 21st of November 2023 was delayed as the complainant was on force majeure leave.

Ms Q further corresponded with the complainant’s representative Victoria Stephens (VS) regarding the disciplinary procedures. In this email it was clearly set out that the disciplinary process related to the GDPR breach that had been previously investigated.

Ms Q sought to reschedule the disciplinary hearing with both the complainant and her representative VS.

On the 22nd of November 2023 the respondent wrote to the complainant inviting her to a rescheduled disciplinary hearing on the 27th of November 2023 and again subsequently on the 30th of November 2023.

 The complainant, through her representative, declined to attend the hearing.

The respondent further invited the complainant to a disciplinary hearing on the 7th December 2023 and highlighted to the complainant that the disciplinary hearing would be held in her absence and that non-attendance on this occasion may in itself be treated as failing to obey a reasonable management instruction and may be deemed to be gross misconduct, the penalty for which could also lead to the summary termination of her employment.

This was further reiterated to the complainant in a number of emails ahead of the hearing on the 7th of December 2023.

The complainant did not attend, and the meeting took place in her absence

Ultimately on the 12th of December 2023, Ms Q issued the disciplinary outcome letter which dismissed the complainant

The complainant subsequently appealed this decision on the 18th of December 2023

An initial appeal hearing was held on the 4th of January 2024 however this was adjourned to allow for the discussion regarding the recording of the matter as agreed by all parties.

Ultimately the appeal hearing was held on the 15th of January 2024 with the complainant, her representative VS and Mark Kennedy, (MK) a board member of the respondent, as the appeals officer

Following the meeting the complainant’s representative raised a number of other concerns in a submission dated the 25th of January 2024.

 The outcome of the appeal was issued to the complainant on the 13th of February 2024 upholding her dismissal.

The respondent representative at the outset of the hearing sought clarification from the complainant’s representative side regarding the case before it and the proofs to be met.    In this regard the respondent asked for clarification of the claim and referred to the fact that the claim form submitted alleged unfair dismissal on foot of a data breach but that more recent submissions also referred to a protected disclosure claim. The respondent representative in raising this referred to the differing proofs required and so stated that this clarification was required before proceeding.    The complainant’s representative in response clarified that there were no protected disclosures claim and that the claim was in fact a claim under the Unfair dismissals Act in respect of the Unfair dismissal of the complainant for an alleged data breach.  The hearing thus proceeded on this basis.

The Relevant Law

Unfair Dismissals Act, 1977

6.— (1) 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.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(6) 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.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if [the adjudication officer or the Labour Court], as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.]

The combined effect of the above provisions of the Act requires me to consider whether or not the Respondent’s decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances.  It is well established that it is not the role or the function of an Adjudication Officer to determine the guilt or innocence of the employee but rather to assess whether a reasonable employer, in the Respondent’s position and circumstances, would have done so.   This is the standard against which the Respondent’s actions must be judged.  The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair.  As part of discharging this burden of proof, the Respondent must show that fair process and procedures were applied throughout. 

The approach to whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J in the High Court case of Bank of Ireland v O’Reilly [2015]26 E.L.R. 229 where he held as follows: 

 “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In cases where a dismissal involves gross misconduct the EAT set out the appropriate test to be applied in such circumstances.  In O’Riordan v. Great Southern Hotels [UD1469-2003] the EAT stated as follows:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild of the accused of wrongdoing.  The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

The fact of dismissal is not in dispute, therefore, there is a statutory presumption that the dismissal was unfair unless there were substantial grounds justifying it.  It is for the Respondent to establish that in the circumstances of this case the dismissal was not unfair. 

The two issues which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint are (1) whether the Respondent acted reasonably in dismissing the Complainant and (2) whether the dismissal adhered to the principles of fair procedures. 

I note the Respondent’s position that the Complainant was dismissed on the grounds of gross misconduct following a fair investigation and disciplinary procedure.  I note the Complainant’s position that her dismissal was unfair and in breach of her rights to fair procedures and natural justice.

The respondent in its evidence to the hearing outlined how the complainant had been subjected to its disciplinary procedure following its discovery that she had copied an external person when reporting a data breach to her employer.

The respondent advised the hearing that the complainant had admitted that she had sent the material to an external person and so there was no dispute that she had carried out the action she was being accused of. 

The complainant at the hearing conceded that this was the case and that she had cc’d a person external to the organisation when reporting a data breach to her employer.  It was clarified that the email outlining the breach had been copied by the complainant to her SIPTU representative VS.

The respondent advised the hearing that the information copied to the third party contained personal data relating to employees two of whom raised a grievance in respect of the complainant’s disclosure of their personal information to a third party.

The respondent submits that in response to this an external HR adviser, Mr Rob Nolan (RN) was appointed by the respondent to investigate the grievances, he wrote to the complainant on the 28th of August 2023 setting out the terms of reference for the investigation.  Mr. RN met with the individuals who had raised the grievance and subsequently met with the complainant and her representative. The investigation report issued on the 3rd of November 2023 concluding that the complainant had committed a GDPR breach by sharing private documents externally and upheld the grievance of the other employees.  

The respondent submits that following this report the respondent elected to commence disciplinary action against the complainant regarding the matter. On the 15th of November 2023 Ms Anand Quinn (AQ) was appointed as the disciplinary officer.

Witness for the respondent Ms. Anand Quinn (AQ) outlined how she had been assigned to conduct the disciplinary process and advised the hearing of the material she relied upon and the steps she took in carrying out her role as disciplinary officer.

Ms Q advised the hearing that the complainant prior to the disciplinary meeting was not known to her.   Ms Q stated that prior to her appointment an investigation had been carried out by Mr. RN who found that the complainant had breached the respondents GDPR guidelines by scanning and copying documentation to a third party.

Ms Q advised the hearing that she was appointed as disciplinary officer on the 15th of November 2023 and that she wrote to the complainant on 17th November 2023 inviting her to a disciplinary hearing on the 221st of November 2023, to discuss that following matters:

Alleged breach of the company’s Data Protection Policy, Safeguards detailed in the Employment Handbook and the Digital & Media Policy and further particulars being It is alleged you breached the above-named policies on the 14th of June 2023.

Ms. Q advised the hearing that as part of this communication, the complainant was advised that failure to attend the meeting without good reason could result in the disciplinary hearing proceeding in her absence and a decision being made based on the evidence available to the disciplinary officer.

The correspondence also stated that non-attendance on this occasion may in itself be treated as failing to obey a reasonable management instruction and the complainant was advised that this failure itself may be added to the matters of concern already under consideration.

Ms. Q advised the hearing that this correspondence also drew attention to the fact that a failure to follow a reasonable management instruction may in itself be deemed to be gross misconduct, the penalty for which could also lead to the summary termination of her employment.

Ms. Q advised the hearing that the complainant was also provided with copies of all the relevant documents in advance including: The investigation terms of reference and outcome report, The original grievances, A copy of the disciplinary procedures of the respondent and a copy of the respondent’s data protection policy

Ms. Q advised the hearing that the disciplinary hearing which scheduled for the 21st of November 2023 was delayed as the complainant was on force majeure leave. Ms. Q stated that the complainants representative VS had emailed her stating that there were no clear terms of reference for the investigation which she had provided.   Ms. Q stated that she had replied to Ms. S’s correspondence clarifying that this was not an investigation but was a disciplinary hearing on foot of the conclusions reached at the investigation stage. 

Ms Q stated that she had also outlined that the purpose of the meeting was that she wanted to ascertain why the complainant had passed on personal information relating to employees two of whom had raised complaints to an external person.  This correspondence also referred to the fact that the complainant had not disputed that she had passed on the information.   

Ms Q stated that she had then engaged in further correspondence with the complainant’s representative Victoria Stephens (VS) regarding the respondent’s disciplinary procedures and Ms. Q advised the hearing that it was clearly set out in this email that the disciplinary process being undertaken related to the GDPR breach that had been previously investigated.   Ms. Q stated that Ms. S had also queried the complainants right to representation at the disciplinary hearing and Ms. Q stated that she had clarified that Ms. S was welcome to accompany and represent the complainant at the disciplinary hearing.

Ms Q stated that she had sought to reschedule the disciplinary hearing with both the complainant and her representative VS and on the 22nd of November 2023 she wrote to the complainant inviting her to a disciplinary hearing on the 27th of November 2023 and subsequently on the 30th of November 2023.

Ms. Q advised the hearing that the complainant, through her representative VS, declined to attend the disciplinary hearing.

Ms. Q advised the hearing that she had corresponded further with the complainant inciting her to a further rescheduled disciplinary hearing on the 7th of December 2023.

Ms. Q stated that in this email it was again highlighted to the complainant that failure to attend the disciplinary hearing would result in the hearing being  held in her absence and also stated that non-attendance on this occasion may in itself be treated as failing to obey a reasonable management instruction and may be deemed to be gross misconduct, the penalty for which could also lead to the summary termination of her employment.

Ms. Q advised the hearing that this was further reiterated to the complainant in a number of emails ahead of the rescheduled disciplinary hearing on the 7th of December 2023.

Ms. Q advised the hearing that the complainant did not attend the disciplinary hearing and so the meeting took place in her absence on the 7th of December 2023.

Ms. Q advised the hearing that the complainant did not attend the disciplinary hearing   and so ultimately on the 12th of December 2023, Ms Q had issued the disciplinary outcome letter which dismissed the complainant.  Ms. Q advised the hearing that the reason for said outcome was not due to the data breach itself but was due to the complainants failure to attend any of the disciplinary hearings arranged without notifying the respondent  of any valid reason and thus was  a deliberate failure, on the part of the complainant  to carry out a reasonable management request.

Ms. Q stated that as a consequence of same she had decided that, as the complainant’s behaviour constituted gross misconduct, she was summarily dismissed.  Ms. Q when questioned at the hearing stated that it was “highly unlikely” that the complainant would have been dismissed if she had in fact participated in the disciplinary process reiterating that that complainant was not dismissed due to the data breach itself but due to her refusal to obey a management instruction and failure to participate in a disciplinary process which Ms. Q had deemed to amount to gross misconduct.

Ms. Q advised the hearing that the complainant subsequently appealed this decision on the 18th December 2023 asserting that she had never refused to attend any meeting, but that she had sought clarity on how reporting a breach of GDPR, and cc’ing her trade union representative, could have resulted in a disciplinary hearing being carried out.

Ms Q in response to cross examination on the issue repeatedly referred to the fact that the complainant had refused to attend the disciplinary meeting stating that it was for this reason she was dismissed. 

Ms Q in her closing answers again reiterated that the complainant was dismissed for refusing to attend the disciplinary meeting and thus had failed to follow a reasonable instruction from management which amounts to gross misconduct.

Ms. Q stated that the complainant would not have been dismissed for the data breach alone as “the punishment did not fit the crime”.

She added that in a case where someone refuses to engage or participate in the disciplinary process “there is nowhere else to go”.

The complainant in her evidence to the hearing did not dispute that she had failed to participate on the disciplinary process but her representative Ms. S repeatedly stated that her position as the complainants representative was that they could not and should not attend the disciplinary hearing without receiving certain information relating to how the documents had ended up on the complainants desk in the first place.     The complainant at no stage disputed or denied that she had passed on the documents to her representative but stated that she believed she had done so for the right reasons as she felt she needed a witness.  The complainant stated that she had taken the correct action by escalating the matter to her line manager after the documents in question came to her attention but she had also emailed them to her SIPTU rep as she felt she needed a witness as she had previously raised matters she had considered to be protected disclosures with her manager.

The respondent at the hearing did not dispute that the complainant was right to raise the issue with her line manager but stated  that what was being questioned was the fact that she took the time to scan and email those documents onto an external person even though she knew they contained personal information relating to colleagues and which she had already considered amounted to a data breach.

The complainant stated that there had been an investigation into this matter carried out by an external HR person called RN and that the investigation had concluded that the complainant had breached the respondent GDPR guidelines by passing the information on to her SIPTU rep who was outside of the organisation.    

The complainant outlined how she had found documents on her desk on the 14th of June and stated that she had attempted to phone her line manager but could not get them.  The complainant stated that she had panicked when she couldn’t contact her line manager and had then scanned and emailed the documents to her line manager and had copied her SIPTU rep on the email.   The complainant at the hearing confirmed that she had received GDPR training but stated that she had felt she had needed a witness and so it was for this reason she had copied her SIPTU rep on the email.

The complainant added that she was later informed that two of the employees concerned had raised a grievance against her in respect of their personal data having been breached.   The complainant stated that an external HR person RN was appointed by the respondent to investigate the matter and that she and her representative Ms. S had attended a meeting with Mr. N stating that she had following these raised issues in respect of certain matters included in the minutes. 

The complainant stated that following this Ms AQ was assigned as disciplinary officer. The complainant at the hearing stated that she had not refused to co-operate with the disciplinary process but that she had through her representative requested clarification on certain matters before she could agree to attend a disciplinary hearing.  

It was put to the complainant that such clarification could have been obtained by attending the disciplinary meeting and raising these issues.  The complainant at the hearing also disputed that her SIPTU rep was a 3rd party in the context of her having copied personal information relating to colleagues to a third party.   It was again put to the complainant that this matter and any other concerns could have been raised and discussed at the disciplinary meeting if she had attended same.

The complainant in her evidence agreed that she had sent confidential information relating to individuals within the organisation to an individual outside of that organisation,  the complainants stated that her reason for doing this was that she had panicked when she came across the confidential documents and decided that she needed someone to be a witness to the fact that she had taken the correct action and reported it as a breach immediately.  The complainant added that she had felt it necessary to have a witness as she had felt that the respondent’s behaviour towards her had changed since she had made protected disclosures back in September 2022.   The complainant at the hearing sought to outline the historic context in respect of those alleged protected disclosures which she stated had been investigated by the respondent and concluded in March.

The respondent representative at the hearing objected to this stating that the complainant’s representative at the outset of the hearing had confirmed that there was no claim in respect of protected disclosures and that the matter at issue related to the complainants alleged unfair dismissal following a data breach.   

The complainant proceeded with her evidence and outlined that her position was that she had not in fact refused to participate in the disciplinary process but that she had via her representative raised a number of questions and issues which they felt should be addressed before they could attend a disciplinary hearing.   The complainant conceded that these communications were replied to but not to a satisfactory level and she stated that some of the questions raised by her representative had not been addressed.

The complainant advised the hearing that she had raised issues regarding how the data breach reported by her had been dealt with when reported to the relevant authority which was separate to the grievance raised by the individuals whose data had been passed on to a third party.

The complainant stated that she had questioned this prior to attending a disciplinary hearing for her part in disclosing information to a third party.  The complainant advised the hearing that she also raised a question relating to why only two of the issues raised against her were being disciplined when there had been four matters raised initially.   She stated that it was only the complaints of the two individuals whose data was breached which were now the subject matter of a grievance and which had involved her being invited to a disciplinary hearing.

The complainant when asked why she did not attend the disciplinary hearing stated “we had asked for proofs”

The complainant went on to state that she had wanted to see the response from the DPC in respect of the initial breach which she had reported before she could agree to attend a disciplinary hearing for her part in the subsequent matter.  The complainant at the hearing stated that she had wanted to know the outcome of the DPC investigation before attending her own disciplinary hearing but that she was not given that information.  The respondent in reply to this had stated that there were two separate breaches a breach reported by the complainant to her manager on the 14th of June when she came across the data relating to the two employees and a second breach created by the complainant when she copied and scanned that material to a third party. 

The complainant in her evidence repeatedly stated that she did not attend the disciplinary hearing as she had not received the information or clarification she had requested.  In cross examination the complainant stated that she did not attend the disciplinary hearing as “we had requested information and had not received it” referring to information requested via her representative.

The complainant in her evidence to the hearing stated that she had appealed the decision to dismiss questioning how a person could be disciplined for reporting a GDPR breach.

The evidence adduced from the respondent on this point states that the complainant was advised that she was not being disciplined for reporting a GDPR breach but was being subjected to the disciplinary procedure for her part in disclosing employee’s personal data to a third party.  The respondent stated that this was made clear to the complainant at the investigation stage.   The respondent again clarified that the sanction of dismissal was reached due to the complainant’s refusal to participate in the disciplinary process which amounted to a refusal to comply with a direct instruction from management and which it submits amounts to gross misconduct.

The complainant’s representative following the second day of hearing submitted an addendum submission seeking leave to amend the complaint from an Unfair Dismissal to a Protected Disclosure, subject to the consent of the respondent.

This was submitted on the morning of the third and final day of hearing after the respondent’s and the complainant’s evidence had been concluded save for evidence relating to mitigation of loss and the parties final closing submissions.

The request from the complainant’s representative outlined that leave to amend the complaint form was being sought subject to the consent of the respondent. The respondent addressed this at the final day of hearing stating that all of the respondents evidence had at this stage been adduced and cross examined as well as the complainants evidence and stated that the proofs and evidence required in a case of penalisation for submitting a protected disclosure could not now be retrofitted to a claim which had previously been framed as one of unfair dismissal for committing a GDPR breach.   The respondent also pointed to the fact that the complainant’s representative at the outset of the hearing was asked to clarify the claim and had done so on this basis and that the case answered by the respondent was in defence to a claim that the complainant was dismissed unfairly for breaching GDPR.   The respondent stated that the case to answer for penalisation had she elected to pursue that route would have addressed a whole host of different proofs including an examination of evidence in respect of whether there was any disclosure of relevant wrong doings.  The respondent objected to any re categorisation of the claim at this stage after all evidence has been adduced by the parties adding that the complainant in this case has from the very start been represented by her Trade union and does not even fall into the category of a self-represented complainant.

In considering this request I am also mindful that a respondent is entitled to know the claim it is expected to meet and while I acknowledge that the claim form mentions the complainant having  been represented by her SIPTU official in a Protected disclosure claim, the claim clearly states that the claim relates to the complainant having been dismissed due to a GDPR breach and that is the claim which was pursued at the hearing.  I note that the complainant representative when asked at the outset of the hearing to clarify the claim for the purpose of establishing the proofs required clarified that this was not a protected disclosures claim and went on to outline that the complainant had been dismissed unfairly due to a GDPR breach which she had reported to management immediately but which she had also copied to her Trade Union representative at the same time as raising it with her manager. 

The complainants rep argued that the complainant should not have been dismissed due to sharing the data with her union representative and argued that the sanction of dismissal was disproportionate. 

The respondent at the hearing in its evidence had submitted that the complainant was not dismissed due to committing a GDPR breach but due to her repeated refusal to engage in the disciplinary procedure which the respondent deemed to be a refusal to follow a management instruction which was deemed to be gross misconduct.    This the respondent stated was after an investigation process had concluded that she had committed a data breach.  

The respondent case is that the complainant by refusing to attend/engage in the disciplinary meeting refused or failed to follow a reasonable instruction from management and so it was for this reason she was dismissed. 

While I note that that an amount of leeway can be afforded to unrepresented complainants, I also note that the complainant in this case has since the outset been represented in this matter by her union official.  In considering this matter I am also mindful of the judgement in

Hosford v. Ireland and the AG [2021] IEHC 133 and para. 21 of that case:

“The applicant emphasises that he is representing himself without the benefit of legal representation and invites the court to “correct” any procedural irregularities. The applicant relies in this regard on the judgment of Ryan J. … in Bennett v. Egan [2011] IEHC 377, to the effect that a court has to be careful in dealing with a lay litigant to ensure that a defect in procedural steps does not shut out a genuine claim. This is, of course, an important consideration. There are, however, limits to a court’s discretion to condone non-compliance with procedural requirements.

 The objective of the Rules of the Superior Courts is to safeguard the rights of all parties to litigation. The constitutional right of access to the courts is not the prerogative of one side alone. It also entails a right to fair procedures in the defence of proceedings. Whereas a court may show some indulgence to a party, such as the applicant, who chooses to represent themselves in proceedings, this cannot be done to the detriment of the rights of the other parties.

 A Court must protect the procedural rights of the opposing parties and relevantly must uphold the principle of the finality of litigation. This is so even in proceedings brought by a litigant in person”.

In similar vein, in McCormack v. Ashford Castle Hotel Limited [2022] IEHC 188, Mr. Justice Barrett held as follows at para. 17:

“Courts too have a tendency to be more lenient with self-represented litigants than other litigants. However, a question does arise as to whether such systemic indulgence is always entirely fair to the parties who are not shown such indulgence. Justice has to be done in an even-handed manner; certainly the extension of any indulgence in any one case has to be carefully weighed by a court, or other decision-making body minded to extend such indulgence, against any time and/or financial and/or other costs that it raises for the other side in proceedings, not least in ensuring that proceedings are brought to a conclusion in as timely a manner as justice allows”.

Thus, having considered the application made and the prevailing law and precedence I am mindful that the complainant firstly does not fall into the category of a non-represented claimant or lay litigant as she has from the very beginning been represented by her Trade Union official. 

 I am also mindful of the fact that a respondent is entitled to know the case which it has to meet and in this case was advised at the outset of the hearing that the case to meet was an unfair dismissal claim in respect of the complainant having been dismissed for breach of the respondents GDPR guidelines.  I note that the application to amend the claim post the evidence was made in the context of it being subject to the agreement of the respondent.  Having considered the arguments made and in the context of the circumstances of this case and relevant legal precedents I am satisfied that permission cannot be granted to amend the claim at this stage and the matter to be decided relates to the Unfair Dismissal claim as outlined in the evidence adduced at the hearing.

Unfair dismissal

The combined effect of the above provisions of the Unfair Dismissals Act requires me to consider whether or not the Respondent’s decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances.  It is well established that it is not the role or the function of an Adjudication Officer to determine the guilt or innocence of the employee but rather to assess whether a reasonable employer, in the Respondent’s position and circumstances, would have done so.   This is the standard against which the Respondent’s actions must be judged.  The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair.  As part of discharging this burden of proof, the Respondent must show that fair process and procedures were applied throughout. 

The approach to whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J in the High Court case of Bank of Ireland v O’Reilly [2015]26 E.L.R. 229 where he held as follows: 

 “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In cases where a dismissal involves gross misconduct the EAT set out the appropriate test to be applied in such circumstances.  In O’Riordan v. Great Southern Hotels [UD1469-2003] the EAT stated as follows:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild of the accused of wrongdoing.  The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

I have considered the verbal and oral submissions of the parties to this complaint and the evidence adduced at the adjudication hearing. 

I reiterate again that it is not the role of an Adjudication Officer (AO) to judge a complainant or substitute his or her own judgement for that of the employer in circumstances where an employee is dismissed. The role of the AO is to decide firstly on the procedures applied by the respondent and secondly to consider the reasonableness or otherwise of the employer in the situation and whether the employer acted within the “band of reasonableness” towards the complainant.

It is well-established, aside from the substantive cause of dismissal, that the fairness of a decision to dismiss an employee stands or falls on the reasonable behaviour of the employer during the disciplinary process.  In the same way, an employee is expected to act reasonably during an investigation and to provide truthful explanations regarding the issues being investigated.

I am satisfied that the disciplinary process in the within case was frustrated by the failure of the Complainant to attend and I note that the respondent made a number of attempts to reschedule that disciplinary hearing which the complainant failed to attend.   I am thus satisfied from the evidence adduced that it was reasonable for the Respondent to conduct the disciplinary hearing in the absence of the complainant.  I also note the respondent’s position that there was “nowhere else to go” as the complainant had failed to attend the disciplinary hearing and that the complainant was warned in advance that failure to attend could be viewed as a failure to follow a reasonable instruction from management which in and of itself could be viewed as gross misconduct.   I note that despite this warning the complainant still failed to attend the rescheduled disciplinary hearing.

In considering this matter I note that the complainant was offered and availed of the opportunity to appeal the decision to dismiss.  I note that the complainant was provided with relevant documentation in advance and was allowed representation at each separate stage of the process and that each stage was conducted by a different individual.  The Complainant was advised of the right to be accompanied to the disciplinary hearing and of the potential of dismissal as a disciplinary sanction outcome.  In addition, the Complainant was provided with and availed of the opportunity to appeal. 

I am satisfied form the evidence adduced that the Respondent complied with fair procedures and with best practice and that the Complainant in the within case did not engage with the disciplinary process.  I am satisfied that the disciplinary process was conducted with fairness and transparency. The complainants failure to attend the disciplinary hearing despite warnings that the hearing could be conducted in her absence and could result in a finding of dismissal as well as a warning that failure to attend could in itself be construed as a failure to follow a reasonable management instruction resulting in a finding of gross misconduct is the type of behaviour that no employer could be expected to tolerate.

I accept the respondent’s position that the complainants failure to engage in or attend the disciplinary process left them with “nowhere else to go” in the context of seeking to reach a conclusion on the matters following the investigation and that it was reasonable for the respondent to conclude that the complainant had failed to follow a reasonable instruction from management.   On that basis, I find that the employers behaviour falls within the band of reasonable responses of a reasonable employer in its decision to dismiss the complainant and that she was not unfairly dismissed.  Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00062374-002

25/03/2024

Applicable Law:

Section 5 of the Payment of Wages Act 1991 in its applicable parts provides:

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term, and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as previously mentioned) are paid to the employee,

then, except as far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Section 5(1) of the Payment of Wages Act 1991 provides that an employer shall not make a deduction from an employee’s wages unless such deduction is required or authorised by law, authorised by the employee’s contract of employment, or made with the prior written consent of the employee. A failure to pay wages properly due constitutes an unlawful deduction within the meaning of the Act. 

The complainant in this claim submitted that the respondent had failed to pay her during the time period in between her dismissal date and the outcome of her appeal and that this amount to an illegal deduction under the Act.  In this regard the complainant argued that she was still an employee until after the outcome of her appeal.  The complainant in this regard submits that she was owed €3,077.00 which she submits should have been paid to her on the 24th of January 2024.

The respondent at the hearing submitted that the complainant had received all payments properly due to her and argued that the complainant was no longer an employee at this stage and so was not entitled to be paid for the period up to her appeal outcome.

I am satisfied form the evidence adduced that the complaint was not entitled to be paid for this period and that there was no illegal deduction from her wages in this regard and accordingly I declare this claim to be not well founded.

I declare this claim to be not well founded.