Case Number: ADJ-00006889. Workplace Relations Commission

• Docket Number: ADJ-00006889
• Date: 01 November 2017
• Court: Workplace Relations Commission
• Parties: A Worker V A Retail Company

ADJUDICATION OFFICER DECISION/RECOMMENDATION CORRECTING ORDER ISSUED PURSUANT TO SECTION 41 OF THE WORKPLACE RELATIONS ACT 2015 AND/OR SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997 This Order corrects the original Decision issued on 09/11/17 and should be read in conjunction with that Decision.

Adjudication Reference: ADJ-00006889

Parties:

	Complainant	Respondent
Anonymised Parties	A Worker	A Retail Company

Representatives Amanda Walsh (Gibson & Associates Solicitors) Michael Kennedy (Byrne Wallace)

Complaint(s):

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-00009326-001	26/01/2017

Date of Adjudication Hearing: 08/09/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 8 of the Unfair Dismissals Act 1997, following the referral of the complaints 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 .

The Complainant herein has referred a matter for dispute resolution under Section 8 Unfair Dismissals Acts, 1977 and the referral has been made within six months of the initial circumstances of the relevant contravention.

Summary of Complainant’s Case:

The complainant stated that she commenced employment in the legal department of the respondent. She was fully aware of the confidential nature of the documentation she handled on a day to day basis. She accepts that, in error, she sent two sets of financial information to the wrong accountancy firm. She has made a request that that information be made available to her so that her legal representative can assess the level of confidentially that attaches to them. That request was denied. The complainant has never actually had an opportunity to assess that documentation. The first the complainant learned of her error was when she was called in to the head of legal department’s office and told what she had done and was dismissed. She was told to pack up her things and go. Since then the complainant has made valiant efforts to secure employment. She did secure employment in a solicitor’s office in June, 2017. She is earning €40,000 per annum.

Summary of Respondent’s Case:

The respondent stated that all of the facts are in agreement in the case. The complainant was dismissed for gross misconduct, that misconduct being a breach of trust and confidence when she sent confidential information to a third party in error. The respondent accepts that the complainant did not deliberately send the information to the wrong accountancy firm, it was gross incompetence. On that basis they did not hold an investigation or a disciplinary hearing. They did not allow the complainant an opportunity to state her case. They did not allow her appeal that decision. The respondent is a very private company. Financial information is strictly confidential. The respondent uses different accountancy firms and is very careful to manage the information given to each firm. Any disclosure of information whether it be in error or deliberate is gross misconduct and there is no defence that would change the respondent’s view on how it should be handled.

Findings and Conclusions:

The respondent accepts that it did not engage in a disciplinary process. It did not do so because the facts of this case come within the small number of cases where instant dismissal is warranted. In that regard it relies on the case of Polkey v A.E. Dayton Services Limited (1988) AC 344 “in some cases of misconducted, however, the misconduct may be so grave and to the information available to the employer so clear that the tribunal will be likely to conclude that no further enquires by the employer were necessary. Indeed, Mr. Allen was prepared to conceded that there are cases where serious misconduct will justify instant dismissal and the failure to comply with a disciplinary procedure agreement will be irrelevant.” Neary v Dean of Westminister (1978) IRLR 82 set out the legal test to be applied in such cases: “Conduct amounting to gross misconduct justifying dismissal must so undermine the trust and confidence which is inherent in the particular contract of employment that the master should no longer be required to retain the servant in his employment.” It is also accepted in this case that the complainant was placed in a position of trust with the respondent, that trust was broken when the complainant made the error she did. In Berber v Dunnes Stores Limited ( 2009 20 ELR 61 it was noted that : “There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of the confidence and trust between them.” The respondent alleges that the complainant, in error distributed highly sensitive information to a third party. The complainant, her solicitors and I, the adjudicator, are expected to take their word on that. Nobody, other than the respondent and the accountancy firm knows what was sent in error and whether or not it was as sensitive or confidential as the respondent now suggests it is. That does prejudice the complainant’s preparation of a defence. The respondent does accept that there were no repercussions financial other otherwise, however they state that the potential financial repercussions could have been catastrophic for the respondent. I do not agree with the respondent’s analysis of the situation. The information was sent to their accountants, albeit the wrong accountants. Their relationship with them is also one of trust, confidence and confidentially. Whilst it may have caused some professional embarrassment it did not actually damage the respondent in any way. Furthermore, no evidence was adduced in relation to the instructions the complainant...