Complainant

Respondent

Anonymised Parties

A Duty Manager

A Leisure 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-00019055-001

09/05/2018

The Complainant commenced employment with in a Leisure Centre, on 14 August 2009 in the position of a Duty Manager. The Complainant’s employment transferred to the Respondent in 2015, under a Transfer of Undertaking.

The Complainant’s employment terminated on 19 April 2018 on foot a finding of gross misconduct.

The Complainant submitted a complaint under the Unfair Dismissal is Act, 1977, to the Workplace Relations Commission on 9 May 2018. That complaint is the subject of this adjudication.

Background:

The Complainant submitted that he was summarily dismissed from his employment on 19 April 2018, in the absence of any fair procedures or due process. According to the Complainant, on his arrival at work on 21 December 2017, he was approached by the Centre Manager (Ms A) who put serious allegations to him in relation to the presence, on the desktop computer at the reception desk, of what was considered an inappropriate image. The Complainant submitted that he denied these allegations in full.

According to the Complainant submission, not long after the conversation with Ms A he was handed a letter, signed by Ms A and dated 21 December 2017, which advised that he was being placed on special leave with pay pending an investigation. The Complainant stated that he attended an investigation meeting on 31 January 2018. According to the Complainant, he made repeated requests, at this meeting, for evidence in support of the allegations being made against him. However, he stated that no such evidence was produced. The Complainant further stated that several letters were sent to Ms A, from his solicitor, calling upon her to conclude her investigation and to furnish evidence in support of the allegations, but she failed and neglected to do so.

The Complainant submitted that Ms A wrote to his solicitor, on 16 February 2018, stating that in hindsight, the Complainant should have been given the supporting evidence at the early investigatory stage. The Complainant further submitted that he was then provided with the purported evidence, which consisted of CCTV footage of him carrying out normal working duties at the communal computer situated at the reception desk in the Centre.   The Complainant also stated that he received two statements from co-workers who allegedly saw an image on this communal computer. However, the Complainant stated that the image was never produced and he was not mentioned in the statements from his co-workers.

According to the Complainant, no effort was made to carry out and complete the investigation as quickly as possible, which was in contravention of the Respondent’s disciplinary rules and procedures. The Complainant stated that an external third party (Mr B) was appointed by the Respondent to carry out the disciplinary process. According to the Complainant, it was abundantly clear at the disciplinary hearing, on 28 March 2018, that Mr B had not been correctly briefed and had not been furnished with all of the correspondence that had issued between the Respondent and the Complainant’s representative up to that time. In addition, the Complainant stated that the witnesses, on whose evidence he was being accused, were not at the disciplinary meeting and, therefore, he was not afforded the opportunity to cross examined them.

The Complainant submitted that, by way of email, dated 19 April 2018, from Mr B, he was advised that he was being summarily dismissed. According to the Complainant, despite acknowledging several flaws in relation to the allegations made against him, Mr B concluded that he (the Complainant) was responsible for placing the image on the computer.

According to the Complainant, he lodged an appeal against the decision to dismiss him and following an appeal hearing, which took place on 7 June 2018, he was advised, by way of letter dated 18 June 2018, that the decision to dismiss was upheld.

Substantive submission:

The Complainant’s legal representative presented detailed submission on his behalf, which included the following arguments:

·         The allegations against the Complainant are denied in the strongest possible terms and were, from the outset, completely unfounded.

·         The investigation conducted by the Respondent into the events of 19 December 2017 was completely ham-fisted and haphazard and failed to conclude in a reasonable timeframe.

·         The Complainant was not provided with the CCTV footage, which was the main evidence used by the Respondent to support the allegations being made against the Complainant, until a number of weeks after the investigation meeting.

·         The Complainant was denied fair procedure during the investigation process, which lacked any coherent structure.

·         The suspension of the Complainant, while this investigation was been conducted, was in itself a disciplinary sanction and was prejudicial to the Complainant.

·         The disciplinary process, which followed the investigation, was equally flawed. In this regard, it was alleged that the individual tasked to carry out the disciplinary procedure (Mr B), was clearly unprepared for the disciplinary meeting and was approaching it solely from the perspective of the Respondent, in order to further their agenda of terminating the Complainant’s employment.

·         As part of the disciplinary process, Mr B was requiring the Complainant to provide evidence that he had not done what he was being accused of doing. It was submitted that this was completely impossible for the Complainant to achieve, particularly in circumstances where the alleged offending image was never produced to the Complainant.

·         The conclusions on which Mr B based his decision to dismiss the Complainant was entirely flawed.

·         The appeal process, which was carried out by an Appeals Officer (Ms C) was equally flawed. It was clear that Ms C was taking the content of Mr B’s conclusions from the disciplinary process as read and, as a result, demonstrated that she had already determined the matter prior to the appeal hearing and was carrying out the instructions of the Respondent to ensure the dismissal of the Complainant.

In conclusion, it was submitted on behalf of the Complainant that, despite denying the allegations against him in the strongest possible terms, his employment was terminated without cause or reason. Consequently, the Complainant seeks redress in the form of immediate reinstatement to his former position.

Background:

The Respondent denies that the Complainant was unfairly dismissed and submits that he was fairly dismissed on foot of the finding of gross misconduct. The Respondent provided a detailed account of the factual background relating to the alleged incident and the subsequent investigation, disciplinary and appeal processes.

Respondent’s submissions:

It was submitted on behalf of the Respondent that there were substantial grounds justifying the dismissal of the Complainant. According to the Respondent, they arrived at a reasonable conclusion, on the basis of available evidence, that the Complainant had misconducted himself by downloading an image of a young female pool user wearing swimming togs onto the reception computer. It was further submitted that the Complainant was not able to provide any counter evidence or explanation.

According to the Respondent, it was, therefore, reasonable, in all the circumstances, to decide that dismissal was the only option open to the Respondent.

The Respondent denied that the processes followed were unfair. On the contrary, the Respondent submitted that the Complainant had the benefit of the substance of his fair procedure rights and instanced the following in support of this contention:

a)       The Complainant was suspended on full pay pending an investigation.

b)      He participated in the investigation and was invited to submit any evidence that may be relevant.

c)       He had a full, fair and independent disciplinary meeting in which he was represented by his solicitor.

d)      He was provided with all evidence in advance of the disciplinary hearing.

e)      He was given the opportunity to cross-examine the witnesses, which he denied.

f)        He was given the witness statements and transcripts of interviews with the witnesses and invited to comment on them, which he did.

g)       The disciplinary process was conducted by an independent third party.

h)      A full and reasoned decision issued following disciplinary hearing.

i)        He was given a full, fair and independent appeals hearing, following which a full and reasoned decision issued.

Conclusion:

It was submitted by the Respondent, in conclusion, that, in all the circumstances, the dismissal was within the reasonable range of responses open to them. It was further submitted that, given that there was no other reasonable explanation for the existence of the image – either provided by the Complainant or arising from the investigations of the Respondent – there was no conclusion which could have been reached other than the Complainant was guilty of gross misconduct.

The Complainant was dismissed by the Respondent on the basis that he did “not provide a sufficient response to address the allegations” made against him arising out of an incident which took place on 19 December 2017, in relation to the presence on a computer of an allegedly inappropriate image.

Therefore, the assessment of the Complainant's complaint relates to his dismissal arising out of the incident on 19 December 2017.

Section 6 (1) of the Unfair Dismissal Act 1977 states that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to the circumstances, there were substantial grounds justifying the dismissal."

Section 6 (4) of the Act further states that:

"Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following…..(b) the conduct of the employee….”

Section 6 (6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal are not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.”

The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, on the grounds stated, was reasonable in the circumstances. It is well established in case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision in the circumstances. It is not the function of the Adjudicator to establish the guilt or innocence of the employee.

On the contrary, it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show the fair process and procedures were applied when conducting the disciplinary process.

In cases where the dismissal relates to gross misconduct, the EAT set out the appropriate test to be applied in such circumstances. In O'Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows:

"In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

With regard to the within case, the person conducting the disciplinary process (Mr B) and on whose decision the Complainant was dismissed, did so on the following basis:

“On the balance of probabilities, i.e. that it is more probable than not that an event did or did not occur, whichever the case may be, in this instance I find that it is more probable than not that you did download or access an image on [the Respondent’s] Reception PC. I find that on balance said image was of a young girl in her bathing suit who was using the club facilities. Your actions equate to gross misconduct on your part.”

When combined with Mr B’s conclusions, as set out earlier, that the Complainant did not provide a sufficient response to address the allegations, it appears that the Complainant was dismissed because he was not in a position to provide evidence which would show that he did not download the image. In effect, it was the Complainant’s inability to prove a negative, i.e. that he did not do something, that led to the Respondent’s conclusion that the Complainant had engaged in gross misconduct.

In normal circumstances, it would be expected of an employer, conducting a disciplinary procedure against an employee, to be in a position to provide evidence of the alleged misconduct to the employee and seek his/her responses/explanation thereto.   However, having carefully reviewed all of the evidence adduced, it appears that the Respondent was not in a position to put definitive evidence to the Complainant, but presented him with the scenario whereby they concluded that, on the balance of probability, he had downloaded the image and required him to prove otherwise.

The evidence produced shows that on 19 December 2017, the Complainant was on duty from 6:15 am until 2:00 pm. One other colleague worked the same shift, while another was on duty between 11:00 am and 2:00 pm. When a further colleague (Ms D) came on duty at 2:00 pm, she noticed there was a icon minimised on the screen of the computer at the Reception Desk. When Ms D maximised the icon she saw a photograph of a teenage girl, taken in the public area of the changing rooms. According to evidence later provided by Ms D, she did not immediately report the matter, however, it played on her mind, to the extent that when the Pool Manager (Ms E) came to the reception area at approximately 3:00 pm, showed her the image. The evidence suggests that Ms E advised Ms C to report the matter to the General Manager (Ms A).

Having requested both Ms D and Ms E to provide statements in relation to the incident, Ms A transferred the image to a USB key and deleted it from the computer. Ms A also checked the CCTV for the relevant time at which the image was downloaded and also transferred the CCTV onto the USB key. The evidence shows that in loading the image onto the USB key it became corrupted and it was not possible to retrieve the image subsequently. Clearly, the outcome of this was that the Respondent was not in a position to provide the Complainant with a copy of the image which was at the centre of their allegation of gross misconduct and on which they ultimately dismissed him.

Therefore, the totality of the evidence available to the Respondent consisted of the following:

(1)    written statements from two witnesses, Ms D and Ms E, in which they both stated they saw the image on the reception computer.

(2)    a screenshot of the intranet history and download history for the Reception PC pertaining to 19 December 2017, which shows that an “Image PDF” downloaded at 10:11 am.

(3)    CCTV footage of the reception area in and around the time the image at (2) above was downloaded, which showed that the Complainant was the primary, though not only member of staff at the Reception Desk during the period in question.

Based on this evidence, the Respondent commenced an investigation and subsequent disciplinary process against the Complainant, which essentially required him to prove that he did not download the image.

Having carefully considered all of the evidence adduced I find there to be significant questions arising with regard to many aspects of the entire process. Firstly, I consider there to be numerous issues relating to the intranet history, which was used as evidence against the Complainant, which give serious rise to serious concerns as to its validity as evidence. These issues/concerns include:

(1)    No evidence was provided which would prove that the PDF Image downloaded at 10:11 was the same image which was seen by Ms D and Ms E some 4/5 hours later.

(2)    There is nothing on the Internet history which   directly links the PDF Image to the Complainant.

(3)    No investigation appears to have been carried out in relation to the source of the image and/or how the image was downloaded.

(4)    The internet history shows activity in the name of an employee who, all parties agree, was not at work on the day in question. In particular, there appears to be activity in the name of that absent employee just prior to and immediately after the downloading of the PDF Image.

Based on the above, I am of the view that the technical investigation conducted in relation to the PDF Image was, to say the least, limited and lacking in forensic detail. In a context where an employee’s employment is at risk, I believe there to be a responsibility on the employer to conduct as comprehensive and professional an investigation as is possible in the circumstances.

In the within case, I am of the view that there was not sufficient technical or IT expertise within the   Respondent’s organisation to have carried out the standard of the investigation required to successfully progress a disciplinary process, particularly where issues of gross misconduct and possible dismissal could arise. In order to have been in a position to put comprehensive allegations to the Complainant in this situation, I am of the view that it would have been necessary for the Respondent to have conducted a more professional, forensic examination of the available IT evidence. Their failure to do so placed the Complainant at a significant disadvantage in his efforts to defend against the allegations being made or provide explanations for the evidence being presented to him.

Secondly, I believe there to be issues arising from the fact that the computer at the Reception Desk was communal and, therefore, could be accessed by all staff, not just the Complainant. In this regard I also note the fact that while the Respondent’s Communication Policy states that email is not for private use and should only be used for business purposes, staff were not assigned company email addresses and were therefore required to use their personal emails for routine work matters. Therefore, I must conclude that it is unreasonable for the Respondent to place any significance on the fact that the Complainant’s personal email appears on the Internet History in and around the time the said image was downloaded.

Finally, in this regard, I consider it a significant flaw in the Respondent’s case that they were not in a position to provide the Complainant with a copy of the image which they alleged was inappropriate and which he had downloaded. It is also noted that the statements from the two witnesses, who saw the image, make no reference to the Complainant and gives no indication that they may have considered him responsible for its downloading.

Taking all of the above into consideration, I find the evidence that was provided to the Complainant was neither robust nor comprehensive. In that context, I find it both unreasonable and unfair that the Complainant was required to rebut that evidence, by proving that he did not download the image and, more particularly, that his failure/inability to do so would lead to his dismissal.

Having carefully considered all of the evidence adduced and the submissions made by the respective parties, in relation to various elements of the process, from investigation, through disciplinary and to appeal stage, I believe there to be some substance and validity to the Complainant’s contentions in this regard. However, given the serious flaws, as detailed above, in relation to the allegations which formed the basis of the actual case against the Complainant, I consider it unnecessary at this stage to consider those in any detail, other than to suggest that there is a strong sense the Complainant might have been considered guilty from the moment the image was discovered and that the processes which followed sought to confirm this view.

Taking all of the above into consideration, I find that the Complainant was required to, in effect, prove his innocence, rather than being considered innocent unless and until the Respondent was in a position to furnish evidence which would might reasonably indicate his guilt.

Consequently, I find that the case against the Complainant was neither reasonable nor robust enough to support a sanction of dismissal. Therefore, I find that the sanction of dismissal in this case was disproportionate, in all the circumstances and was contrary to fairness and natural justice.

On the basis of the above findings, I am of the view that compensation rather than reinstatement is the more appropriate form of redress in all the circumstances.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that this was an unfair dismissal and, therefore, in breach of the Unfair Dismissal’s Act, 1977.

Based on the above decision I award the Complainant €25,000.00 in compensation.

Unfair Dismissal