UD1447/2014

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                     CASE NO.

John Brown                                                                                       UD1447/2014

- claimant                                                

against

The Mountview/Blakestown/Hartstown/Huntstown Community Drugs Team Limited

T/A Adapt

- respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr C. Corcoran B.L.

Members:     Mr E. Handley

                     Mr. S. O'Donnell

heard this claim at Dublin on 1st May 2015

Representation:

_______________

Claimant(s) :       Mr Mark Thompson BL instructed by Mr Niall O'Connor, Niall O'Connor & Co Solicitor,

                           DMG Business Park, 12 Camden Row, Dublin 8

Respondent(s) : Mr Tom Mallon BL instructed by Mr Peter McInnes, McInnes Dunne,  Solicitors,

                          Lower Ground Floor, 78 Merrion Square, Dublin 2

Respondent’s Case

The respondent company, formed in 1998 based in west Dublin works across the rehabilitation continuum of care, providing a range of services to people who are experiencing drug and/or alcohol problems. It provides a non-judgemental, compassionate service responding to the needs of its service users who have been affected by drugs and alcohol. It provides a range of holistic services to vulnerable users many of whom have been victims of gun crime and in some instances perpetrators of gun crime. The claimant was employed as a project worker providing one to one support for users since January 2003.

The Tribunal heard evidence from the head of drug and alcohol services that she had been the claimant’s line manager since 2004. In February 2014 she became aware that the claimant had posted a photograph on his Facebook page. The photograph depicted the claimant holding a gun to a “victim’s” head in what appears to be rough surroundings. The photograph was published on the claimant’s Facebook page in the public domain and could be viewed by any members of the public using Facebook, including service users of the respondent company. It was accepted that the photograph was a staged photograph taken while the claimant was on holidays in Thailand in 2008.

When the witness became aware of the photograph the claimant was absent from work on sick leave due to an unrelated matter. Upon his return to work in April 2014 he was suspended on full pay and invited to a hearing on 9 April 2014. He was offered the opportunity to bring a representative, fellow-colleague or union representative with him to the hearing.

The witness conducted the hearing which she described as a short hearing. The claimant provided a detailed letter at the meeting (a copy of which was opened to the Tribunal). The witness while accepting that the photograph was staged believed that it was very wrong for the claimant to stage, pose for, and depict such a scene given the nature of his work. To subsequently publish it on Facebook did not apply sound professional judgement on his behalf. She told the Tribunal that the claimant viewed the photograph as a joke. She believed this to be very inappropriate.

The claimant was subsequently invited to a further hearing on 14 April 2014 which he attended with representation. The witness conducted the hearing along with a member of the board and HR sub group known as (M). She stated that the combined effect of the claimant posing for, staging and publishing the photograph and then considering it as a joke destroyed her confidence in him. She believed that if the photograph had been viewed by service users or their families it would have damaged the reputation of their service. She and (M) wrote to the claimant confirming their joint decision to dismiss him for his behaviour which amounted to gross misconduct. The letter stated inter alia that displaying the photograph in the public domain of Facebook with the claimant in a violent and threatening pose, undermines the professional integrity of the respondent, is unacceptable, and cannot be tolerated in any circumstances. She did not consult her manager prior to making the decision.

She accepted that she did not receive any complaints in relation to the photograph. She confirmed that employees have not been provided with training in relation to Facebook usage and accepted that the claimant was very good working with people. There were no serious issues regarding the claimant’s work performance prior to the publication of the photograph. She accepted that he may have shown the photograph to other work colleagues when he returned from Thailand in 2008 but he did not show it to her. He was afforded the right to appeal the decision, a right which he exercised by way of letter dated 22 April 2014. She gave further evidence that while she was questioned as part of the appeals process she was not involved in the appeal. The appeal hearing was conducted by a disciplinary appeals committee.

(M) gave evidence that she was part of the initial decision making process along with the previous witness. She told the Tribunal that she was shocked when she viewed the photograph. It was upsetting bearing in mind the impact that drugs and guns have had in the area. She told the Tribunal that the manner of the photograph, the fact that the claimant had posed for it, published it and thought it was a joke left her confidence in him completely broken.

She was not aware of complaints in relation to the photograph. She did not make any efforts to ensure that it was removed from Facebook. She has limited knowledge of Facebook and does not believe that she could have removed it.

(P), acting chairperson of the board and child protection officer gave evidence that he, along with a HR consultant heard the appeal hearing into the claimant’s dismissal. The claimant was legally represented at the appeal. He told the Tribunal that he has lived in the community for the past 20 years and was incredibly disappointed that the claimant had posed for such a photograph given the context of the work of the respondent. He believed that the photograph ruined the credibility of their project and the board could not condone the photograph. He believed that the photograph would resonate with people and depicts what can actually happen in the community.

He accepted that he did not receive any complaints in relation to the photograph and he did not inform the Gardai about the photograph. He accepted that the photograph was taken in an amusement park in Thailand and was staged. During a break in the appeal hearing he had a conversation with a manager in the organisation. An issue of objective bias was subsequently raised by the claimant’s legal representative and a new appeals panel was convened to hear the appeal.

(L), a director of the board gave evidence that she was part of the second appeals panel appointed to hear the claimant’s appeal. In her professional capacity she works for TUSLA. She lives in the community and has a huge knowledge of the effects of drugs and guns in the community. She told the Tribunal that she finds it hard to put into words the effect that the photograph would have on service users and their families if it was viewed by them. She was shocked by the photograph. Her trust in the claimant was broken and the decision to dismiss him was upheld.

Claimant’s Case

The claimant gave direct evidence that he worked as a project worker for the respondent. He was part of a community drugs team meeting young people at risk from drugs. He met service users on a one to one basis in various locations. He also visited them in hospitals and prisons. He told the Tribunal that he worked beyond his normal working hours for no pay. He was happy to do so as he loved his job and his work which he was passionate about. Prior to working for the respondent he worked on a voluntary basis for two years working with the homeless. He gave evidence that he had no education and had a history of drug addiction. However he was steered in the right direction and got treatment which led him into community work and ultimately to work for the respondent. He had no disciplinary record of any note prior to his dismissal.

He gave evidence that he visited Thailand in 2008 accompanied by four members of the travelling community. He had gained their trust and they were in his care. As part of the holiday they visited an amusement park and he posed for the photograph along with a colleague from the travelling party. He told the Tribunal that the photograph was staged, the gun was fake and the ammunition which he wore in a band around his waist was false. The scene was supervised at all times. He accepted that the background in the photograph was rough looking but denied that the purpose of the photograph was to show fear. There was no fear in the photograph and it was only role play. He believed that it was appropriate to pose for the photograph and compared it to dressing up in a costume at Halloween time. He accepted that the photograph was transposed onto a T-Shirt. He does not wear the T-Shirt and has it at home.

He gave evidence that he showed the photograph, along with other photographs to his work colleagues when he returned from Thailand. He made no attempt to hide them. He posted holiday photographs at various times on his Facebook page. He understood that he posted the photograph in question on his private page. He did not realize that it was in the public domain and as soon as that was brought to his attention he had it removed immediately. He told the Tribunal that when he was recruited by the respondent he could barely read or write and had to get constant support when using his computer. He now accepts that putting the photograph on Facebook was wrong and it could have been accessed and transmitted by other Facebook users. He is aware of that now but was not aware of it at the time. He was never approached by anyone in the community to remove the photograph and he was never told that he had given the respondent a bad name. He admitted to his actions immediately and co-operated with the investigation. His job meant a great deal to him and he believes that the respondent should have handled the matter differently by giving him a “slap on the wrist” or a suspension.

Since his dismissal he has not made any efforts to secure alternative employment. He has suffered a lot of ill health. He referred to bereavements within the family, and the fact that he has been in, and continues to be receipt of disability allowance (illness benefit). He has been prescribed anti-depressants by his GP and is currently awaiting a further referral appointment. He has become financially dependant on friends and charity.

(D), a project worker gave evidence that she worked with the claimant for 13 years. She worked with victims of the gun trade. The claimant showed her the photograph when he returned from Thailand. She did not think a whole lot of the photograph, she had seen similar photographs previously. It was a created scene, a role play. She believed it was inappropriate but nobody made any complaint to her in relation to the photograph. She accepted that it may shock some people.

She spoke with the claimant on the day of his suspension from work. She obtained his password and removed the photograph from Facebook. She told the Tribunal that the claimant thought that he had already removed the photograph. She has supported the claimant since his dismissal and described him as being very down and very sad.

(S) gave evidence that she had three children who were drug addicts. She told the Tribunal that the claimant is a loving and compassionate person who helped her son to become drugs free. He spent day and night counselling her son, helping him to obtain care in a treatment centre. He has helped her family for over 15 years. She accepted that some people may be shocked by the content of the photograph but she knows it was staged and was not shocked by the photograph.

(E) gave evidence that she was an addict and got help from the respondent organisation.

She knows the claimant and he helped her to get care in a treatment centre. He also visited her in hospital. She did not see any harm in the photograph as she knows the claimant. She accepted that it is not a photograph that she would like her child to see but it did not have any effect on her as she knows that it is not a real gun.

Determination:

Having considered the evidence adduced in this case both oral and written, and having observed the demeanour of the witnesses throughout, this Tribunal finds that the dismissal of the claimant was disproportionate and unfair. However this is without prejudice to the excellent work of the respondent its management and staff in an area that is fraught with life-threatening difficulties and emotional problems emanating from drug abuse, violence and severe social and economic difficulties. In that regard the Tribunal accepts that they acted in good faith and with the best of motives, in dealing with this matter.

The Tribunal notes that notwithstanding the urgency and potential danger of this incident as denoted by the respondent, the totality of the following points we feel are very pertinent in this case:

1. The photograph was allowed to remain on Facebook for circa two months before it was taken down. In that regard evidence was adduced that it was much more difficult to take an image down from Facebook than putting it up, and that one would need the private password of the poster in order to do this. We feel that a better effort could have been made by the respondent, and do not find this as an adequate reason for failing to ensure that it was removed promptly, having regard to the possible and  potential damage and shock attributed to it by the respondent. It is also noted however that that the claimant was absent from work on or about that time.

2. No complaint was made to relevant personnel within the respondent company concerning the said incident.

3. No complaint was made to the Gardai or no effort was made to contact the Gardai or any other relevant body, given that the subject-matter of the photograph involved guns, guns posed in a threatening manner on a blindfolded victim, possible incitement to hatred and other related matters given that personnel involved were recognisable.   

4. The Claimant’s record was generally misconduct free, before this incident.

5. No apparent damage or harm or no evidence was adduced that any damage or harm or serious damage or harm was sustained by the respondent or to the quality of its invaluable services, e.g. no evidence was adduced that any victim or patient or any other person attending or obtaining or accessing the services of the respondent was adversely affected emotionally, or suffered or sustained actual damage or harm arising directly from this incident. (Apart from personal disgust of certain witnesses called).

6. Evidence was adduced to the effect that he was a dedicated worker who gave freely of his time to others who were in severe emotional difficulty.

The Tribunal feels that in the circumstances, (prevailing at the time), a less severe sanction could have been imposed e.g. a severe warning, a fine or suspension or both.

The Tribunal feels that having regard to the above-mentioned sentiments as expressed that the actions of the respondent in dealing with this matter were not entirely reasonable.

In relation to the claimant this Tribunal finds that having regard to his work and level of experience and despite the fact that he was described as “highly regarded and good at his job”.

Nevertheless he made a serious error of judgement which was unfortunate and tragic for him.

(Evidence was tendered to the effect that he was on disability allowance (income benefit) since his dismissal and was suffering severe financial hardship and other difficulties).

One can understand how he was lulled into a false sense of security by the carnival atmosphere prevailing in Thailand where apparently unsuspecting persons could (presumably for a fee) don costumes and be provided with fake guns and adopt various stances (threatening or otherwise) associated with guns as part of the holiday, and arising from that euphoria, place the image on Facebook for his friends. However given the nature of his work he was somewhat reckless and careless as to the possible dangers of Facebook. Several references were made to the effect that he was not very competent in the use of computers and thereby not expert in the use of social media sites such as Facebook, and that somehow it strayed into the public domain. We do not entirely accept this proposition.

The Tribunal finds that the claimant by his behaviour contributed significantly to his own downfall. He exposed the respondent its servants or agents, patients, victims, support services in general, to a serious danger and risk of which he was aware or ought to have been aware.

The Tribunal notes with approval, section 6(7) of the Unfair Dismissals Act 1977 as amended –“Without prejudice to the generality of sub-section (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal………”

The following sentiments expressed in the case of Mehigan V Dyflin Publications Ltd. UD 582/2001: “Any disciplining or dismissing of staff for unauthorised use or misuse of company email systems and the internet must be carried out having regard to the employee’s fundamental rights to fair procedures and natural justice. Therefore where the “offence” is not sufficiently serious to justify dismissal, employers are expected to apply the different stages in the company disciplinary procedure.”

The sentiments expressed in Governor and Company of the Bank of Ireland V James O’Reilly, High Court delivered on the 17^th day of April 2015, page 23-“ In assessing the reasonableness of the employer’s conduct in relation to the dismissal herein, it seems to me that such an assessment must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response.”

In the circumstances of this case (and as already stated) the Tribunal finds that the Claimant was unfairly dismissed, having regard to the fact that he was not available for work as he was unwell and was in receipt of disability allowance.

Accordingly the Tribunal rules that the claimant receive the minimum statutory compensation of four weeks’ salary namely €3,230.00 as per section 7 (c) (ii) of the Unfair Dismissals Act 1977 as amended.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

            (CHAIRMAN)