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-00011994-001

19/06/2017

The complainant was a driver for the respondent. The respondent put surveillance equipment on the vehicle driven by the complainant and determined that the complainant was siphoning diesel. He was subsequently dismissed.

The complainant worked for the respondent from 10th January 2005 until 20th December 2016. He was accused of siphoning diesel from the truck he drove, while it was parked at his farm. He attended a disciplinary hearing on 6th December 2016 and was shown video footage from covert surveillance equipment placed on the truck. He gave a full explanation of what happened but despite this, and despite his good record over many years, he was dismissed. The complainant states that there was a small leak at the top of the fuel tank and it was in order to avoid spillage in his yard that he siphoned off and subsequently replaced the diesel. The complainant alleges that the use of covert surveillance such as this is a breach of his privacy and that any evidence gathered in this way should be ignored.

The complainant was responsible for the operation of a waste collection vehicle for the Respondent.   His contract of employment stated that;

(The respondent) reserves the right to terminate your employment without notice or salary in lieu of notice with immediate effect if you as an employee;

c) Commit an act of serious dishonesty (e.g. misappropriate monies and/or property from your employer, co-workers, or customers or falsify documents. This will most likely result in prosecution..

In addition the Company Handbook also classifies the taking of company property as gross misconduct.

The respondent had concerns about the fuel usage of the complainant and installed a camera on the truck focussed solely on the fuel tank. The video evidence showed the complainant siphoning fuel at his home on a number of occasions. At no stage did the video show him replacing the fuel as claimed. The complainant stated that he had unplugged the battery on those occasions. A signal is sent to an external computer when the battery is disconnected and no such signal had been sent at the times suggested by the complainant.

The complainant stated that he was removing the diesel because of a leak in the fuel tank which had not been fixed and that he had informed his manager that he was doing so. The manager confirmed that there had been a small leak in the tank and that he had advised the complainant not to fill the vehicle fully to the top.   The manager was clear than any leak on the fuel tank would have been insubstantial and would not have caused leaking of a substantial nature. He denied that the complainant had told him about removing the fuel due to the leak.

On 21st December the respondent referred the matter to the Gardaí.

The respondent fully investigated the incidents and had ample grounds for its believe that the complainant was guilty of misconduct in the manner in which he misappropriated company property. He was afforded fair procedures during an extensive disciplinary process wherein he provided unsatisfactory and contradictory explanations for the actions.

The first issue to be considered by me is the use of covert surveillance equipment in this case.

In this regard, Gresham Hotel (Case study 6 of 2007) *17 as published by the Data Protection Commissioner, is relevant. In that case the employer hotel used data gathered on foot of covert surveillance to dismiss an employee, a supervisor in the Gresham Hotel. Cameras had been installed for the purpose of investigating cash handling complaints, an investigation to which the supervisor was neither a suspect nor a subject of investigation. She had not been aware of the investigation, nor the covert surveillance, but was dismissed based on her responses at interview, upon being confronted with surveillance footage. The employer failed in its defence that there existed in this case a “legitimate and specified purpose” for the manner in which data was gathered and used; the investigation of a complaint. The Commissioner was also critical of the hidden nature of the cameras. The Commissioner found:

“The personal data of the persons captured on the footage was obtained for one purpose - the investigation of specific incidents in the hotel. In the case of this data subject, her personal data was further processed in a manner incompatible with the original purpose.”

The Commissioner further expanded on the problem inherent in the propriety of using such footage where the disciplinary process verges on an investigation of a possible criminal offence. The Commissioner stated:

“The use of recording mechanisms to obtain data without an individual's knowledge is generally unlawful. Such covert surveillance is normally only permitted on a case by case basis where the data is gathered for the purposes of preventing, detecting or investigating offences, or apprehending or prosecuting offenders. This provision automatically implies an actual involvement of An Garda Síochána or an intention to involve An Garda Síochána.”

It is evident therefore that there are some instances, albeit narrow, when covert surveillance may be justified where the behaviour, if proven, may be an offence. In my view, the use of covert surveillance by the respondent in this instance could reasonably fall within this category and in fact the respondent did give the video evidence to the Gardaí.   Furthermore, the surveillance was not general in nature, and was confined to the fuel tank of the truck.   It is of note that the complainant readily confirmed that he had siphoned the diesel on the occasions alleged and, in evidence, claimed to have informed his manager that he had done so. This represents confirmation of his actions separate to the video footage.

The next issue to be addressed is the reasonableness of the respondent’s decision to dismiss.

Of relevance is the judgement of Linnane J in Allied Irish Banks V Purcell ([2012] 23 ELR 189) where the relevant test for determining if an employer’s actions are reasonable in the context of disciplinary sanctions was stated to be as follows;

‘Reference is made to the decision of the Court of Appeal in British Leyland UK LTD v Swift and the following statement of Lord Denning MR

The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view, another quite reasonably take a different view.

It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.

Having reviewed the evidence presented I am satisfied that the respondent behaved reasonably both in its investigation of the incidents, the conclusions reached in that investigation, and in its application of a disciplinary process and I therefore conclude that the dismissal was not unfair.

I have found that the decision of the respondent to dismiss the complainant in this case was reasonable and proportionate and I also find that the process was fair.     On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded and does not succeed.

Use of covert surveillance and proportionality of decision to dismiss. Reasonableness of the decision to dismiss.