ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00003004
Parties:
| Complainant | Respondent |
Anonymised Parties | A Gaming Support Services Account Specialist | An On-Line Gaming Provider |
Complaint:
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-00004140-001 | 28/04/2016 |
Date of Adjudication Hearing: 13/04/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed as a Support Services Account Specialist from 20th April 2009 to 22rd March 2016. He was paid €2,858.00 per month. He has claimed that he was unfairly dismissed and has sought reinstatement or compensation. |
Summary of Respondent’s Case:
In August 2015 the Respondent created a Real Time Analyst Team within the Operations function. This team is dedicated to improving customer service by identifying opportunities for efficiencies and reporting on results. This team identified a “manual system option” which enabled users to manually manipulate the system to misrepresent their work status. They could manually change their status to set “on break next” which resulted in no customer emails being received however they appear to be available, so they fraudulently meet their targets.
In November 2015 the Respondent issued to all Support Services employees detailing system best practices and clear instructions to ensure correct adherences, tracking, fair distribution of workload and accurate resource planning. A global analysis was conducted and 350 employees were reviewed. At 40.8 % the Complainant had the 4th highest percentage of non-compliant time. He was the highest in Ireland and the next offender had a non-compliant time of 9 hours as against his 77 hours for the same period. A disciplinary process then took place. He was invited to an investigation meeting on 8th March 2016 under the Code of Conduct and Disciplinary Procedure. He was offered representation but declined. He was asked to explain how he learned of the manual manipulation, to explain the 40% of his time unaccounted. He gave general answers such as it was easier to click. He offered to work back the time. He tried to justify his actions that he was being treated like a child. The matter was escalated to a disciplinary investigation on 22nd March 2016. He was again offered the right of representation but declined. It was found that his conduct was not satisfactory, nor up to the standards required by the business and that his deliberate and fraudulent manipulation of the system resulted in gross misconduct and a serious breach of trust. His employment was terminated and he was paid in lieu of notice. He was offered the right of appeal. The appeal hearing was heard via telephone conference on 14th April 2016 as the senior management were based in the Isle of Man. It was conducted by the Director of Security Services and a Senior HR Business Partner. They were unconnected with the previous investigations. A thorough and diligent review was carried out of all information and points raised by the Complainant. It was found that the decision to terminate was proportionate so the appeal failed.
It is their position that the dismissal was not unfair. They referred to “conduct of the employee” in Sec 6(4) of the Unfair Dismissals Act. This conduct was very serious and repeated in nature. He knowingly and deliberately abused the system in an attempt to reduce his workload by over 40 %. This conduct severed any relationship of trust between the employer and employee. All employees that had overridden the system were disciplined and all employees with the same level of abuse were dismissed. They stated that the Complainant had not particularised his complaint to the WRC. They cited Byrne v Marks & Spencer UD826/2013 in support.
He was dismissed for gross misconduct for essentially failing in a very serious way to perform his role and for seeking to conceal his inactivity. His primary duty was not performed. The level of dishonesty was significant and it had a tangible adverse impact on the Respondent’s business. The disciplinary sanction was well within the band of reasonableness. The decision should be upheld.
Summary of Complainant’s Case:
The Complainant stated that there was a loop hole in the system. He accepted that he used the system to block e-mails coming in. He denied that he was not working during this 40 % downtime. He said it was 30 % when breaks are taken into account. He stated that he was unfairly dismissed because he was working during the 40 % downtime. He pointed out that the whole procedure lacked procedural fairness. The same people carried out the investigation and the disciplinary hearing. They failed to take into consideration his explanations for his actions. One of the investigators told him before the meeting that he could lose his job. He raised a medical condition at the appeal hearing and that was why he offered to work back the time. He is seeking re-instatement and or compensation. He has not worked since. Since his dismissal he has looked for work each week also he has used LinkedIn and online applications. He stated that because of his eye problem he can’t get work. He has worked for 7 years with this employer. He had no issues with his employment record. He won prizes for performance. Now because of one mistaken he has been treated like a criminal. |
Findings and Conclusions:
I note that the Respondent’s Real Time Analyst Team discovered a manual system option. I note that the Respondent then informed all relevant employees of the need for adherence to company policy and clear instructions on which statuses to use. I find that the Respondent had addressed this possible loop hole and warned all employees to adhere to company policy. I note that the Respondent carried out a global analysis of performance and non-compliance. I note that the Complainant came 4th in non-compliance and compared to the next Irish non-compliance employee there was a difference of between 9 hours and 77 hours. I note that the Respondent carried out an investigation and then escalated the matter to a disciplinary investigation because of the seriousness of the situation. I find that the Complainant gave very little reason as to why he had such high non-compliance. I note that he accepted that he blocked e-mails into his system. I note that he offered to work back time. I find that the Complainant was unable to show what he was doing when 40 % of his work was blocked I find that his conduct in blocking the mails amounted to gross misconduct. I find that the Respondent acted reasonably in terminating the employment as there was a breach of trust and confidence. Therefore I find that the dismissal was not unfair on substantive grounds. I note that the Respondent had given very clear instructions on the need for adherence to policy and procedure. Therefore I find that the Complainant knew exactly what he was doing. I find that the Respondent carried out an investigation into wrongdoing and then escalated the matter to a disciplinary investigation. I find that he was offered the right of representation which he declined. I find that he was a given the right to defend himself. I find that the Respondent considered alternatives to dismissal. I find that the same management personnel carried out the investigation and disciplinary investigation. I find that he was not given a copy of the investigation report. I find that the letter of invitation to the disciplinary hearing did not state the specific allegations. I find that the appeal hearing was carried out by telephone conference call and there was connectivity problem which I find was not conducive to fair procedure. I find that the dismissal lacked fair procedure which has rendered this dismissal unfair on procedural grounds. I find that re-instatement is not appropriate given the breach of trust that has occurred. I find that compensation is the more appropriate remedy. I find that the Complainant has contributed substantially to his dismissal which must be reflected in the quantum of the award. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have decided that the dismissal was unfair on procedural grounds only.
I have decided to award €2,500 for the procedurally unfair dismissal, which reflects the substantial contribution the Complainant has made to his dismissal.
This is to be paid within six weeks of the date below.
Dated: 07 June 2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Unfair dismissal |