The Workplace Relations Commission has cancelled two days of planned hearings in a whistleblower penalisation claim after the claimant’s lawyers told the tribunal that their legal filings were lost in the tribunal’s spam folder for nearly a week.
Former firefighter Vincent Maughan is pursuing complaints of constructive dismissal and whistleblower penalisation against Mayo County Council under the Protected Disclosures Act 2014 and the Unfair Dismissals Act 1977, and was expected to begin giving evidence on Monday.
However, the case failed to start as planned when the adjudicator, Patsy Doyle, told a remote hearing that she had received no legal submissions from Mr Maughan’s lawyers despite giving a direction that they be furnished over six months ago.
“Can I have an explanation?” she asked barrister David Byrnes, appearing instructed by Maureen Gallagher of Crawford Gallagher Solicitors.
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Mr Byrnes said it was a surprise to him that the tribunal had not received his papers. He said that were sent by email on October 26th to both the WRC’s Post Registration Unit and the Local Government Management Agency (LGMA), which represented the county council.
Amanda Kane from the LGMA confirmed she got the legal papers.
Ms Doyle directed that the complainant side send the material in again during a recess. When she returned, she said that the submissions “appear to have been sent by the complainant” last week. However, she said they were “not admissible due to the cybersecurity measures by the Department” and were “never received by the WRC”.
“I apologise for this, it’s unprecedented,” she said.
Mr Byrnes said that human resources (HR) consultant Terri-Sue Cosgrove, who sent the legal filings on behalf of his instructing solicitor, had received no reply email from the WRC.
Ms Doyle said: “It won’t, you see, Mr Byrnes, because it wasn’t received. It was the department, the measures, the cybersecurity – that’s where we understand it went.”
Mr Byrnes replied: “We would have been notified of those measures or that the email wasn’t received. This stuff happens all the time in the modern world. We’re all accustomed to the common email that would come back either because the receiver’s server can’t accept files of that size, some security rejection, or a multiplicity of other reasons.”
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Ms Doyle said she had not received the newly-uploaded legal papers and asked for confirmation that the information had been sent again.
Ms Cosgrove said she had done this – and added that [the WRC case officer] had since responded to her original emails from “six days ago”.
“You’d better send that to me, because I’ve done a sweep for those submissions,” Ms Doyle said.
Ms Cosgrove added that the case officer had responded to her during the hearing that she had been unable to access a single link in the files sent last week. “The WRC’s only coming back to me now, six days later. I have a factual chain of emails here in front of me,” Ms Cosgrove said.
Ms Doyle then said: “Just one moment please. I’m now going to take five minutes to consider my position, because it may be necessary, colleagues, for me to give consideration to making a decision ... by written submission – to decide [the case] on the papers.”
“It may be necessary, because this is one hour that I’ve given to try to get complainant submissions that I looked for last April,” she said.
After an adjournment, Mr Byrnes said Ms Cosgrove had received an email from a WRC official after the hearing opened which he said included a tag referring to the original correspondence as “suspected spam”. Citing his past experience as an IT professional, he said: “That indicates the emails, or some of the emails, found their way into the spam inbox of the WRC’s servers. That’s not a rejection by the firewall based on security measures; that’s based on the policies of the email administrator.”
Ms Doyle said: “This is a side issue. I will deal with it in my decision.”
After issues arose with the admission of a stenographer to the hearing, the use of digital recording to produce a transcript and the sharing of any transcript, Ms Doyle decided to adjourn the case pending the arrangement of a hearing in person.
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