ADJ-00008545

Complainant

Respondent

Anonymised Parties

An Employee

A Drinks Company

Representatives

Peter Mcnamara Citizens Information

Mary Fay BL,                                 Sinead Morgan DWF

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-00011229-001

10/05/2017

The Complainant contends that he was unfairly dismissed for an alleged offence of falsifying clock in and out records.

The Complainant had been employed by the Respondent for over 11 years, was a trusted key holder and never had been subject of disciplinary proceedings until April 2017.   He was called in to the Production Manager’s office for a ‘discussion’ on 18th April 2017. He was informed that there had been a complaint regarding his clocking in / clocking out time registration procedures and that he was suspended with full pay with immediate effect. The Production Manager then held interviews and investigation enquiries with other members of staff. It should be noted that all of the interviewees answered ‘no’ to questions regarding having information or evidence of the Complainant falsifying time records. Following a disciplinary hearing the Complainant was dismissed on 3rd May 2017.

It is submitted that the process of gathering information from CCTV footage was unfair and could not stand up to Data Protection guidelines. It is submitted that the very act of immediate suspension of the Complainant before any investigation was carried out was unfair (case of Bank of Ireland and O’Reilly cited where the High Court held that a suspension should only be imposed “after full consideration of the necessity for it pending a full investigation”. It is submitted that the information gathered was not made available in good time or at all in order for the Complainant to analyse the data which was used in evidence against him. The whole area of the use of CCTV data in evidence against the Complainant should be examined in respect of the covert use of CCTV. The Data Protection Commissioner (obtained from the Data Protection Commissioner’s website) has stated that “the use of recording mechanisms without an individual’s knowledge is generally unlawful”.           It is contended that the dismissal of the Complainant was unfair from a procedural point and that the Complainant was never given the benefit of knowledge that CCTV footage would be used contrary to the fair obtaining principles.

The Complainant was employed as a Team Shift Leader since 23 March 2006.   The business needs of the Respondent make it imperative that they operate a zero tolerance policy in relation to time keeping, clocking in and punctuality and this is clearly set out in the Company Handbook.   In April 2017 the Production Manager began to suspect that the Complainant could be falsifying his clock in records. His suspicions were aroused in March when the Complainant could not be found on site despite being clocked in. The Manager compared the Complainant’s arrival and departure times as per the Car Park CCTV against his hand written entries for a 4 week period.   The Complainant would have been aware of the CCTV cameras which were clearly signposted on site. Significant irregularities were found between the times the Complainant alleged he was on site compared to his clock in records. Interviews were held with various relevant personnel and the Complainant was suspended on 18 April pending a full investigation. The Complainant attended an investigation meeting on 26 April 2017. Following the investigation, in which the Complainant denied falsifying records he was invited then to a disciplinary meeting. The disciplinary meeting was chaired by the Plant Manufacturing Lead. The Complainant had been advised that the Respondent was dealing with the allegation as gross misconduct and that potential sanction would be up to and including dismissal. The Complainant initially attended the meeting alone, and then had the Staff Form Representative attend with him. He initially claimed that the clock in machine was not working and showed an hour difference. When it was pointed out to him the varying time differences, he stated “I am sorry, this is my fault, I am sorry. I work here for 11 years, this is my first problem”.                    The meeting was adjourned for 5 hours to allow the Manager to consider the evidence and the Complainant’s explanation.   It was decided that considering the Complainant’s senior position, and the affect of his behaviour on other staff, his long service and his refusal to admit to his behaviour, the importance of punctuality and time keeping on the Respondent’s business, that there was no option but to dismiss the Complainant. It is argued that the Respondent followed fair procedures and fairly dismissed the Complainant by reason of gross misconduct. The Company gave the Complainant the right to appeal but he did not exercise this right.

I note the extensive use of CCTV footage in the investigation and disciplinary process in this case.       I also note the Data Protection Commissioner’s findings in “Case study 10” as submitted by the Complainant’s representative that “to satisfy the fair obtaining principles of the Data Protection Acts with regard the use of CCTV cameras, those people whose images are captured on camera must be informed about the identity of the data controller and the purpose(s) of processing the data… if an employer intends to use cameras to identify disciplinary (or other) issues relating to staff, as in this instance, staff must be informed of this before the cameras are used for these purposes”.                   In this instant case I found no evidence of the Respondent informing the Complainant or staff generally of the existence of a data controller and of the potential use of CCTV footage in certain situations. For this reason, I find that the Complainant was unfairly dismissed.   I consider that the Complainant contributed significantly to the situation in which he found himself. I find that due to the irretrievable breakdown in trust, compensation is the appropriate remedy. Taking into consideration the Complainant’s contribution, I require the Respondent to pay to the Complainant the sum of €6,100 compensation.