Spence vs Department of Agriculture
| Jurisdiction | Northern Ireland |
| Judgment Date | 29 November 2010 |
| Respondent | Department of Agriculture |
| Docket Number | 00505/10IT |
| Court | Industrial Tribunal (NI) |
CASE REF: 505/10
CLAIMANT: Edward John Spence
RESPONDENT: Department of Agriculture and Rural Development
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.
Constitution of Tribunal:
Chairman: Mr Uel Crothers
Members: Mr Ian O’Hea
Mrs Beverley Heaney
Appearances:
The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by
Worthington Solicitors.
The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by the Departmental Solicitors Office.
The Claim
- (i) The claimant claimed that he had been unfairly dismissed by the respondent
The respondent denied his allegations in their entirety.
(ii) The title of the respondent is amended to that shown above
The Issues
2. The issues, as agreed by the parties, were as follows:-
1. Was the claimant unfairly dismissed?
2. What was the reason or the principle reason for the dismissal?
(i) Was the reason misconduct?
(ii) Was the reason the protected disclosure made by the claimant?
3. Was the dismissal fair or unfair in the circumstances?
4. Was the dismissal procedure reasonable?
A list of the agreed legal and factual issues is appended to this decision together with an agreed chronology. The claimant’s Counsel did not refer to a remedy in the context of protected disclosures under Article 70B of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), until the submission stage. This Article has nevertheless been reproduced at paragraph 6 below.
Sources of Evidence
3. The tribunal heard evidence on behalf of the respondent from Gerry McPeake, Human Resources Manager, David Trelford, Human Resources Director, and Mark Maxwell, Departmental Records Officer and Acting Departmental Information Manager at the material time. The claimant also gave evidence together with his wife, Rebecca Spence. The tribunal was presented with extensive bundles of documentation and took into account only documentation referred to in the course of evidence.
4. During the hearing, the tribunal referred to the Northern Ireland Court of Appeal Decision in Patrick Joseph Rogan v South Eastern Health and Social Care Trust (“Rogan”) - Judgement delivered on 13 October 2009. The tribunal read out sections of paragraphs 15 and 26 of the judgment of Morgan LCJ as follows:-
[Referring to Article 130 of the Order]
“Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and …… to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgment as to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal…
The judgement as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal. In this instance it appears that the tribunal has strayed into the forbidden territory of making its own determination of the evidence.”
The tribunal therefore sought to avoid straying into the “forbidden territory” of making its own determination of the evidence.
Findings of Fact
5. Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact on the balance of probabilities:-
(i) The claimant joined the Northern Ireland Civil Service on 9 September 1985. He was promoted from Agricultural Inspector Grade III to Agricultural Inspector Grade II on 1 November 1994 and from that date he worked in Dundonald House, Belfast, until the end of August 1999. From September 1999 the claimant worked at Greenmount and was then transferred to Cookstown on 18 August 2003. The claimant remained at Cookstown until he was transferred on 8 October 2008 to his last post at Grade II Senior Business Technologist, crops and horticulture based at CAFRE in Greenmount Campus. As a result of disciplinary proceedings the claimant was dismissed on 26 March 2010, being the effective date of termination of his employment with the respondent.
(ii) Following an investigation and a Disciplinary Hearing before Gerry McPeake on 8 January 2010, the claimant received a disciplinary outcome letter dated 28 February 2010, which reads as follows:-
“1. On 22 December 2009 you were informed that the Department was considering taking disciplinary action against you in relation to the following breaches of conduct:-
1. You altered the access and security control on 113 records held within TRIM which you had not been granted “view” access to and then viewed the majority of these records. A total of 81 of those records contained information about you, 11 related to other individuals and 21 related to management and workforce issues that had no relevance to you.
2. In altering the access and security settings of the 113 records and then viewing the majority of them, you breached various Departmental and NICS procedures that are detailed later in this letter.
3. You misused the Departmental computer system by altering the access control of the records within TRIM.
2. You attended a disciplinary meeting on 8 January 2010 when you were given the opportunity to respond to the charges against you.
3. I have given careful consideration to all the evidence available including the information provided by you at our meeting and have decided that your behaviour amounts to gross misconduct for the reasons outlined below.
4. There have been two distinct issues related to this investigation. Firstly, there has been the issue of the access controls that were in place on the 113 documents before you altered them. Throughout the investigation you have stressed that the appropriate access controls were not in place in the first instance and that it was the negligence of other named individuals that resulted in personal documents relating to you and others not being properly protected. You have also stressed that this negligence resulted in the access to “View Metadata” and Modify Record Access” being set at DARD which in turn gave you as an End User (and all other DARD End Users) permission to alter the access settings and then view the documents.
5. The Department has confirmed and acknowledged that before you altered the records the access controls were set at DARD and this enabled you to amend the controls that others had placed on the documents. Following a review by Information Management Branch (IMB) the facility that allowed End Users to amend the access controls was removed and IMB are continuing to establish why the access controls on the documents in question were not set appropriately and whether further action against those involved in [is] necessary.
6. Turning to the second issue, for which you have been charged and relates to your actions in altering the access controls and then viewing the documents, I have given this matter detailed and thorough consideration. I have concluded that there is sufficient evidence to clearly demonstrate that you did in fact commit the breaches of conduct.
7. In reaching this conclusion I have taken account of a range of evidence and documentation. This has included the TRIM record and audit logs provided by IMB and Service Delivery Group (SDG) that detail the TRIM records that were changed and viewed by you, including the dates and times that these actions took place. These records were also forwarded to you on 29 December 2009. At the meeting with me on 8 January 2010 you confirmed that it was you and
no-one else that had changed the controls and viewed the documents in question. I have also considered the witness interviews from IMB and SDG staff that explained in detail the background to TRIM, how you had modified the records and the impact of your actions. When we met on 8 January you also confirmed how you had modified...
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