The Complainant commenced employed with the Respondent as a Purchasing Representative on the 1st of January 1990 and her employment ended in February 2020. The Complainant brought a claim of Unfair Dismissal seeking adjudication to the WRC.

The Complainant was absent from work from 1st until the 30th of October 2019 due to spinal surgery, submitting a certificate stating she was unfit for work.  On her return, the Complainant was summoned to the Respondent’s office where Mr. Dullaghan said he had made discoveries while she was on sick leave.  The first was using her company email account to send correspondence in relation to the Complainant’s husband’s business. The second was “deliberately misleading” the Respondent about her sick leave, as her emails disclosed that she had gone on holiday to Lanzarote during this time. The Respondent was suspended immediately on full pay.

The Complainant maintained the Respondent’s conduct was fundamentally unreasonable and in breach of fair procedures in that:

Mr. Dullaghan stated the Complainant “had deliberately misled Camfil” during the initial meeting and letter, which demonstrated he had prejudged the matter prior to even commencing any disciplinary process;

The Respondent illegally accessed the Complainant’s email account and used evidence on foot of same was in breach of data protection law and in breach of its own email policy;

The Respondent failed to conduct any or any adequate investigation prior to the commencement of disciplinary proceedings or issue any investigation report.

The Respondent submitted that over a period of years, the Complainant extensively used her company email account for two outside businesses. One of these was a laundry business in which she had an ownership interest, the other was a construction company in which her husband had an ownership interest.

The Complainant had also not declared her holiday booking but engaged with Camfil Ireland’s Managing Director in the preparation of her presentation for an important Group conference taking place at the same time as her holiday.

The Respondent contended the Complainant’s excessive personal use of the company e-mail together with misleading the Respondent company about the holiday amounted to gross misconduct.

Before this incident, the Complainant consistently achieved good appraisals, a promotion, and was never the subject of any adverse disciplinary or performance related complaint, investigation, finding or sanction prior to the matter that culminated in her dismissal.

The Complainant’s complaint under the Unfair Dismissals Act against Camfil (Ireland) Ltd was ultimately rejected.  However, it ordered that the Respondent company pay her €3,900 for withheld sick pay, annual leave and public holiday entitlements.

In reaching his decision, the Adjudicating Officer, Jim Dolan, noted the company’s disciplinary process "did not specifically address" the status of an employee appealing their dismissal. However, it did state the dismissal would "become final" and be implemented upon the decision of the appeals officer. He found the correct date for her dismissal was five months later than the company stated – and upheld complaints under the Payment of Wages Act and Organisation of Working Time on that basis, awarding her €3,970.90 in respect of sick pay, annual leave and public holiday entitlements due during that time.

The Adjudication Officer wrote that the 230 personal emails found on her account "clearly indicated that [Ms] Keating was conducting business … during her working hours as a Camfil Ireland employee". He added that she had "failed to declare her intention to be absent" for the company conference and "misleadingly behaved as though she was intending to make the important presentation". On that basis, the Adjudication Officer contended the Complainant severely damaged the relationship that “has to exist between employer and employee," adding that the decision to sack her was reasonable and ultimately ruled that the Complainant’s claim under the Unfair Dismissals Act was "not well founded".

The Adjudication Officer rejected a further claim under the Terms of Employment (Information) Act on the grounds that the Complainant’s employment began more than four years before it came into force.

Guidance for Employers

There is an obligation on the Employer to justify dismissal which derives from Section 6(1) of the Unfair Dismissals Act 1977, which sets out:

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(4) of the Unfair Dismissals Act 1977 provides that if an employer can establish that the dismissal resulted from, inter alia, the employee’s conduct, it will be deemed a fair dismissal.

Section 6(6) of the Unfair Dismissals Act, 1977 states:

“In determining for the purposes of this Act whether or not 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.”
https://www.workplacerelations.ie/en/cases/2022/august/adj-00030501.html