The Tribunal heard this case by way of an employee appealing the Rights Commissioner Recommendation ref: r-085835-ud-09/JT.
This case involved the respondent company providing I.T. support services to a client in the banking sector. The appellant raised a grievance to the Service Delivery Manager (“SDM”) that he was being bullied and harassed. A meeting was held with the HR Business Partner to discuss the grievance.
The SDM decided that the issue related to non employees and “therefore we have no jurisdiction to raise such matters with them directly.”
An overlap occurred between the grievance procedure implemented by the appellant and the subsequent disciplinary matter, when a complaint was received from the customer regarding the appellant and a suspected breach of policy and inappropriate data usage by the appellant. This complaint related to the accessing of data on 22 December 2008 and 2 March 2009. The SDM told the Tribunal that he was “mortified” when he received an email from the customer outlining its complaint and the email of 22 December 2008.
A meeting was arranged for the 10 March 2009 between the SDM, Team Lead and the appellant. A letter dated 11 March 2009 from the HR Business Partner confirmed that the appellant was suspended on full pay pending a full investigation into two allegations that consisted of:
- That you inappropriately accessed the….Security Server….on two occasions with disregard for Data Protection and the company security policy, distributed secure and privileged content from that server, namely site access badge employee photographs to member of the…staff.
- That you compiled a desktop screensaver composed of same secure content from the same server, and displayed in open plan office.
Two investigatory meetings were held on 13 March and 26 March, with the appellant, Team Lead and the HR Business Partner. Following on from these meetings and the Team Lead’s investigation report to the SDM, the Team Lead recommended that the matter be dealt with as a disciplinary matter.
The appellant was invited to attend a disciplinary meeting. The purpose of such was to discuss his conduct, using secure customer information for a purpose other than that which it was intended, and in a way that his conduct was in breach of Data Protection guidelines and the company’s Internet and Email Policy. The disciplinary hearing was adjourned due to concerns regarding the appellant’s health. The appellant stated in his evidence that he was not in a fit condition to defend himself at the meeting, and had only agreed to attend if he was able to make a statement and then leave. The appellant further stated that the SDM was aware that he was taking medication due to work related stress.
The disciplinary hearing was postponed until an assessment of the appellant’s medical condition. The Occupational Health Assessor advised that the appellant could now be considered fit to attend meetings. The HR Business Partner confirmed to the Tribunal that the terms of reference of the assessment related solely to the disciplinary process and it did not occur to her at the time to get an opinion on the appellant’s health for the preceding months, as prior to the hearing there had been no issues with his behaviour at work.
The disciplinary hearing was resumed and the SDM reached the decision to dismiss the appellant, as it was felt from the customer’s point of view, that the appellant’s position would be untenable on any of the customer’s sites. This meeting was concluded with the appellant being informed that he was being summarily dismissed for gross misconduct. The appellant received a letter of dismissal dated 12 July 2009, which he did not appeal.
DETERMINATION
It was understood by the Tribunal that the employer was left in a very difficult position however it was of the view that if dealt with differently, some of the customer’s concerns would have ultimately been alleviated. The Tribunal’s belief was that the respondent allowed its concern to satisfy the customer to cloud its judgement on this occasion. It was incorrect for the respondent to consider a preference for dismissal communicated by the client especially when the allegation was ultimately unfounded.
The appellant brought a grievance shortly prior to the instance that led to dismissal, arising out of a clearly communicated belief that he was being bullied, harassed and victimised. The Tribunal outlined the necessity for an appropriate enquiry and further investigation prior to arriving at a decision, as it was clearly evident that the appellant’s conduct and demeanour were suggestive of a significant psychological health issue. This view was further enhanced by evidence of the SDM, that the appellant was “clearly not in the appropriate state of mind”.
Under the terms of the appellant’s contract of employment, the respondent should have sought to ascertain the nature of the appellant’s illness, the duration over which he might have been suffering from the illness and the extent, if any to which it might offer an explanation for his conduct. Instead, the respondent restricted its investigation to a report of an Occupational Health Assessor which only determined his ability to continue with the disciplinary process.
It was noted that the appellant raised the issue of his state of mind as an explanation for his actions and still the respondent failed to further investigate the issue.
The Tribunal was satisfied that the appellant was unfairly dismissed and that initial complaints against the appellant were not sufficiently established. The investigation carried out by the respondent was insufficient and ignored an important issue that any reasonable employer would have explored.
The Tribunal awarded the appellant the sum of €30,000 by way of compensation under the Unfair Dismissals Acts, 1977 to 2007.
LEGAL REVIEW
Employers owe a duty of care to their employees on many levels. There are constitutional rights to fair procedures, there are similar common law principles of natural justice. On the purely health and safety side the common law requires employers to establish a safe system of work, safe premises, safe tools, and safe and competent fellow employees. On the statutory side there is a myriad of health and safety legislation imposing various duties of care on employers for the safety, health and welfare of their employees.
There are a couple of important principles interwoven through this case. Firstly, a service provider cannot foist any of its employees on a particular customer. It is up to the customer to say who the customer will, or will not accept on site. This rule may be inconvenient on occasions, but it is nevertheless true. This means that if a customer refuses to allow an employee on site, then that employee clearly cannot perform the work on that site. That was the case here. Although the Tribunal suggested that the employer could have treated matters differently (and indeed it could have), ultimately without persuading the customer, the employee could not have been re-inserted into any of the customer sites.
Secondly, although a customer may refuse to have an employee present on one of their sites, they cannot tell the service provider what is to further happen with regard to the employee. It was not a matter for the customer to determine that the employee should have been dismissed. The customer’s remit stops at insisting that the employee does not attend at its sites. After that, the decision as to whether the employee had misconducted himself, and any sanction to be applied (if any) was entirely for the employer. This means that the disciplinary policy should have ignored the wishes of the customer completely.
Thirdly, if the employer in its sole discretion had decided that dismissal was not an appropriate sanction given the alleged disciplinary offence, then the employer would have had to find alternative work within the organisation for the employee. If no work (other than on that specific customer sites) was available, then arguably, the employee would be redundant on the basis that there was no work available for him to do.
Fourthly, when an employer in a disciplinary process is faced with an employee who may not be fit to take part in a disciplinary process, the employer should always consider whether that un-fitness to take part in the process could be part of the employee’s general defence to the allegations themselves. In this instance, there was ample evidence to conclude that the employee was not fully functioning from a psychological point of view. As such, this may mean that the employee is unwell, rather than misconducting themselves.
CONCLUSION
This case clearly illustrates the failure of an employer to properly and fairly investigate the seriousness of an employee’s illness which ultimately resulted in a successful claim for Unfair Dismissal.
It is evident that the respondent’s judgement was clouded by pressure to satisfy their client, resulting in an inability to provide a sufficient duty of care to its employee in investigating such grievance. It was incorrect of the respondent to follow a client’s preference to dismiss one of their employees.
Full case decision:
http://www.eatribunal.ie/determinationAttachments/c3311bab-b061-4ab1-b911-bb296610cf1f.pdf
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