Complainant

Respondent

Anonymised Parties

Administrator

Social Community Partnership Company

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-00007892-001

28/10/2016

The Complainant was employed as an Administrator from 10^th October 2001 to 21^st October 2016. She was paid €416.00 per week. She has claimed that she was unfairly dismissed. She has sought the redress of re-instatement or compensation.

The Respondent became aware that pornographic material was accessed on the computers in the main reception area. There are two computers in that area and can only be accessed by username and password. The Complainant worked in the main reception area. An investigation showed that that the computers had accessed pornographic sites on 7 occasions between 26^th September and 26^th November 2015. On 27^th November a member of management informed the Complainant and another staff member that such material had been found. They were given a copy of the company’s internet policy and grievance /disciplinary policy. An investigation was carried out. Sign in/out sheets identified the Complainant as the only person on duty on 3 occasions when this material was accessed. The Complainant was invited to an investigation meeting on 26^th January 2016. She was advised in writing of the allegation against her and her right to representation. She was represented by her SIPTU Official. She denied any involvement in accessing such material. She stated that two other staff members had access to the computers. She also stated that on 15^th October she was not present when the site was accessed. The Respondent stated that she had signed in for a full day and was paid in full that day. On three dates that the site was accessed the Complainant was the only member of staff present. The Respondent concluded that the Complainant was the only person that was present on all 7 occasions that the site was accessed. Based on the company internet policy the matter was escalated to a disciplinary investigation. A disciplinary hearing was held on 11thy March 2016 and she was represented by her SIPTU Official. She continued to deny her involvement in this matter. She pleaded that she had gone home sick on 15^th October and ‘phone records would support that. The company checked this out but found no evidence or voice messages as alleged. In fact they found evidence of a call made at 1.17pm to a number of an acquaintance of the Complainant. Other matters were investigated whether a virus could have caused this. The company’s IT specialist confirmed that a Trojan virus was not responsible for accessing the sites. The disciplinary investigation upheld the investigation findings. The company found that it was not credible that she was not the staff member responsible for accessing the site. A decision was made to terminate her employment dated 11^th May 2016. She appealed the decision on 23^rd September 2016. An external panel heard the appeal but upheld the decision to dismiss. The Complainant was paid in full up to the 21^st October 2016. It is the Respondent’s position that she was dismissed for misconduct in accordance with Sec 6(4)(b) of the Unfair Dismissals Act. 1977. The Complainant’s actions in accessing these sites which contained violent scenes of non-consensual acts such a rape and forced sex and the abduction of girls in an employment whose purpose is the provision of services to children and families is wholly unacceptable and warrants dismissal. Not only do the complainant’s actions go against the grain of the organisation but has the potential to put at risk the company’s funding relationship with Government services. The Respondent cited the Employment Appeals Tribunal (EAT) decision UD 111/2008 Mullane v Honeywell Aerospace Ireland Ltd and the UKEAT decision Preece v Weatherspoon in support. The Respondent’s actions were what a reasonable employer would do. A full and fair investigation took place and the Complainant’s rights were respected. The assessment of the facts and the decision made took into account the representations made by the Complainant and her representative. She was offered fair procedure throughout. Given the grave and serious nature of the Complainant’s actions which were upheld in the investigation dismissal was deemed the appropriate sanction. She was given the right to appeal and she took up that option and had representation. The decision to dismiss was upheld. This dismissal was both substantively and procedurally fair.

Following a routine check of the computers, two of which were at reception it was discovered that one of the computers had accessed X rated sites. The unauthorised access appears to have occurred on the following dates and times

Thurs 26^th Nov 2015 at 13.28pm

Thurs 12^th Nov 2015 at 15.11pm   X

Tues 27^th October 2015 at 16.40 pm   X

Fri 23^rd Oct 2015 at 15.59pm   X

Tues 20^th Oct 2015 at 14.54pm

Thurs 15^th Oct 2015 at 15.17pm

Wed 30^th Sept 2015 at 16.29pm

I note that Sec 6(7) of this Act provides that the reasonableness of an employer’s conduct is an essential factor to be considered.

Reliance is placed on the decision of the Employment Appeals Tribunal in Hennessy V Read & Write Shop Ltd UD192/1978   “In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to: (i) the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant; and (ii) the conclusion arrived at by the respondent, that on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

In O’Riordan v Great Southern Hotels, UD 1469/2003 the Tribunal set out the appropriate test for determining on claims relating to gross misconduct, stating “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing . The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

In the EAT case David Mullane v Honeywell UD/1112008 it stated “The Tribunal must decide whether the conclusion that the offending act had been perpetrated by the claimant was reasonable on the balance of probabilities and that dismissal was a proportionate response”.

Substantive Fairness

I note that following a check of its computers it was discovered that x rated sites had been accessed.

I note that the Respondent carried out a detailed investigation and identified the Complainant as a likely person to have accessed these sites.

I note that she was invited to an investigation in writing and given the right of representation,

I note that the Respondent identified 7 occasions where they believed the Complainant was at work when these sites were accessed.

I note that the Respondent identified 3 occasions when the Complainant was the only person on duty in that area on those dates.

I note the conflict of evidence regarding 15^th October. On the balance of probability I find the Respondent’s evidence more convincing and so I find that she was at work that afternoon.

I find that the Complainant has not convinced me that others had access to these computers such as volunteers etc .

I find that it is not my role to establish the guilt or not of the Complainant but to establish on the balance of probability that she did access the sites. I also have to decide what a reasonable employer would do in such a situation.

I find that the Complainant was clearly made aware of the allegations against her. She was offered the right to defend herself, the right of representation and the right of appeal.

I find that the Respondent carried out a thorough investigation and disciplinary investigation.

Therefore on the balance of probability I find that the Complainant accessed these sites.

I find that this constitutes gross misconduct.

I find that the sanction of dismissal was warranted.

Therefore I find that the dismissal was substantively fair.

Procedural Fairness

I note that the Complainant was advised in writing of the allegations made against her at the investigation and disciplinary hearings.

I find that she was given the right to defend herself and to representation.

I note that she was represented by her SIPTU Official at all material times throughout the investigation and disciplinary hearing and appeal hearings.

I find that the dismissal was procedurally fair.

In reliance upon the above cited EAT case In O’Riordan v Great Southern Hotels, UD 1469/2003 the Tribunal set out the appropriate test for determining on claims relating to gross misconduct, stating “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

I find that the Respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the Complainant was guilty of the alleged wrongdoing.

I find that the dismissal was not unfair.

Unfair Dismissal