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Dismissal for gross misconduct upheld for breach of confidentiality of bullying investigation

FACTS: The Complainant who had been employed by the Respondent for over 7 years was dismissed on 17th October 2017 for gross misconduct.  At the time of her contract being terminated the Complainant was a Pharmacy Technician. The disciplinary policy provided a non-exhaustive list of what may be considered to constitute gross misconduct including: “Serious breaches of confidentiality.” and “Serious failure to adhere to an agreed workplace procedure or other agreed terms of employment.” On 19th May 2017, the Complainant was notified in writing that she was the subject of a bullying complaint by another employee which was being investigated by the Respondent’s external HR Consultant under its Dignity at Work – Anti-Bullying Policy & Codes of Practice. The letter stated: “The details of the specific allegations provided are for your information and that of any representative you consult with in this regard. I must instruct you that this is not for publication or discussion beyond that, and that failure to comply with this instruction may render you liable to disciplinary proceedings on that account.” The Policy document also provided: “All employees involved in an investigation must respect the need for confidentiality – failure to do so may represent a serious disciplinary offence.” The investigation terms of reference further stated: “The need for confidentiality will be highlighted to all parties involved as well as any witnesses.” Correspondence sent to the Complainant in relation to the investigation also highlighted the utmost importance of confidentiality by expressly stating: “Please be assured that confidentiality in relation to all matters concerned with the investigation will be maintained insofar as is reasonably practicable. In this regard, you are instructed not to contact any of the persons (including potential witnesses) about this matter. Failure to comply with this instruction may seriously hinder the Organisation’s ability to investigate or take action on the complaint and may render you liable to disciplinary proceedings.” The HR Consultant further reminded the Complainant of the need for confidentiality during the various investigatory meetings as noted in the various minutes furnished.

However, during the course of the bullying investigation, the Complainant was alleged to have breached the confidentiality requirements by forwarding a confidential email from the investigator with notes of an investigation meeting who had made the bullying complaint to another colleague, regardless of the email explicitly stating that the notes are to be kept confidential and not be shared. The Complainant also sent a number of texts to the same colleague about the bullying investigation and personally approached this colleague when she did not respond to these texts.

Mr A (co-director of the Respondent) carried out the investigation into the allegations of breach of confidentiality requirements as the Respondent’s HR Consultancy were considered to be prejudiced as they were dealing with the ongoing bullying complaint investigation. Mr A suspended the Complainant on full pay from 11th August 2017. Following a number of investigation meetings Mr A determined in a report dated 21st September 2017 that the Complainant had breached the Respondent’s confidentiality requirements and was contrary to the terms of reference for the investigation into the bullying complaint and/or amounted to interference with the process. The investigation report noted that the Complainant accepted that she had breached the confidentiality requirements but maintained that she had done so in a joking fashion and/or in circumstances where her colleague may have been her representative.

Ms B, Co-Director and wife of Mr A, conducted the disciplinary process. She furnished her findings to the Complainant for her response before making her decision.   Ms B found that the Complainant’s interference in a workplace investigation and a serious breach of confidentiality constituted gross misconduct and an irreparable breach of trust in her. Noting that the Complainant was already on a written warning, Ms B found that there were no alternatives to dismissal.

An appeal was conducted by an independent HR Consultant who upheld the finding of gross misconduct and summary dismissal.

FINDING: The WRC Adjudicator, Aideen Collard, found that the Complainant’s dismissal was both substantially and procedurally fair. The Adjudicator held that she did not regard Mr A and Ms B’s involvement in investigation and disciplinary processes as being inappropriate given that they were husband and wife Co-directors in the particular circumstances and given the size of the business. It was also not an issue that Mr A had previously issued the warning against the Complainant as he had shown considerable latitude towards the Complainant in this regard. The Adjudicator noted that the fact that an independent HR Consultant heard the appeal ensured that due process was followed. 

The Adjudicator found that the sanction of dismissal was within the band of reasonable responses to her conduct and that the lack of any reference to “zero tolerance” in respect of breach of confidentiality did not take from the numerous written notices confirming the importance of upholding the confidential nature of the investigation and that the Complainant could not have been under any illusion that such conduct could potentially lead to dismissal.

TAKEAWAY FOR EMPLOYERS:  This is an interesting case from the perspective that the size and resources of the Respondent has been taken into account in this case, as certain matters which  have been held to comply with fair procedures would be deemed to be in breach of fair procedures in other situations. It is also interesting that a breach of confidentiality to another employee which was deemed sufficiently serious to amount to gross misconduct but this may not have been the case if such breach did not interfere with the internal investigation process into the bullying complaint. It is definitely worth reminding all involved in an internal process the importance of confidentiality at every step of the process both in writing and orally and include it in the terms of reference. 

https://www.workplacerelations.ie/en/cases/2019/august/%20adj-00013713.html

27th August 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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