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-00015957-001

23/11/2017

This is a complaint of constructive dismissal.

The Complainant commenced employment as a dental technician with the respondent on 27/06/2016, earning €22,750 per annum.

On 1 September while the two respondent directors were on leave, she discovered a hidden camera pointed at the desk at which she works. She was very upset at this discovery. She went on sick leave.

She submitted her resignation on 22/9/ 2017.

Her employment terminated on 22/10/2017.

She submitted her complaint to the WRC on 23/11/17.

The complainant contends that she was constructively dismissed

She is a qualified Dental Technician employed by the respondent since 27th June 2016.

She worked alongside the two directors – a husband and wife team. The complainant 's duties involved logging and entering work in the workflow system, pouring moulds, and making dental products, supporting the lab manager, the respondent, in the general day to day running of the business.

The complainant has been out sick with work-related stress since about the 11th September 2017. She was paid sick pay for a period but has not been paid since 21/09/17.

Unfair Dismissals Act,1977.

On September 2017, on return from annual leave and while left alone in the office, the complainant discovered a hidden camera, called a Clever Dog Smart Camera, in a smart lever arch folder placed at the reception desk, taped to the wall, and pointed in the direction of her desk with an intermittent flashing light. She detected that the lens was positioned behind a hole in the folder. She examined the camera and was concerned it was recording. Neither the folder or camera were in situ before she left for leave a week previously.

On or about 11th September 2017, on the return of the respondent and his wife, the complainant asked to discuss the concealed camera. The respondent’s wife, also a Director, disclaimed all knowledge of the camera. As they spoke the respondent manager began removing the camera in the background. She also raised her concerns with the respondent manager who was quite aggressive and admitted he had placed a camera there for her safety and forgot to inform her. He stated that he wanted to see couriers and patients coming in and out and he could put cameras wherever he wanted. However, this seemed illogical to the complainant as the camera was pointed at her desk and not at the entrance to the office. He did not explain as to why he had concealed the camera within a lever arch folder fixed in place with industrial tape. The complainant was extremely upset and concerned especially in light of the fact that she had previously received inappropriate messages via WhatsApp from the director. The complainant did not raise these messages with the director previously as she was worried it would impact on her employment nor did she feel comfortable discussing the messages with his fellow director, his wife, as only 3 of them that worked in the small organisation together.

The complainant became extremely upset by both the situation and at having to confront her employers. The respondent then called the complainant a stupid idiot for getting upset about it. The complainant was shocked at her employer’s reaction and the absence of an explanation as to why the camera was concealed. She had previously gotten on quite well with them both. The complainant worked for the remainder of the day quite upset, stressed and shocked by the events, although no effort was made by her employers to reassure or console her. The claimant had been in contact with her employers while on her annual leave and whilst they were on annual leave and no mention of a camera was ever made. On returning home and consulting with her family the claimant reflected and felt she could not return to work the following day to work. She felt belittled by being called stupid and was not comfortable continuing to work with them and concluded that their relationship was beyond repair.

Her doctor certified that she was suffering from work related stress and she went on sick leave. On receipt of her certificate, stating work related stress, her employers attempted to contact her on her mobile and his wife texted both the complainant and her mother, which the claimant states caused her additional stress.

The complainant believed that her employers had fundamentally breached the terms of her contract and she could not continue to work for them. The relationship of trust and confidence had been irreparably damaged. The respondents only became concerned when the claimant provided certificates citing work related stress.

The complainant ultimately handed her notice to the Respondents on the 22nd September on advice from her GP and family.

How the complaints have been dealt with to date

The complainant’s solicitors wrote to the respondent on many occasions asking for any footage from the hidden camera, notifying them that the employer’s conduct had repudiated the contract. The relationship of trust and confidence had been damaged and that there had been a fundamental breach of the contract. They declined the respondent’s offer of mediation unless it would take place in the context of an acknowledgement of a breach of contract.

Solicitors for the Respondents offered an implausible explanation as to why the camera was installed, noting same was installed at the last minute. However, this is not accepted by the complainant as it is clear from the photographs submitted that a considerable amount of time and effort went in to securing the camera within the lever arch file,

On the 29th September solicitors for the Respondents wrote to say that the situation was salvageable however did not address the multiple concerns the complainant had raised. On 29 November, the respondents accepted the complainant’s resignation after more than two months.

On the 15th February 2018 a Data Protection request was made directly to the Respondent and their solicitors. On 29th March a complaint was made to the Data Protection Commissioner.

In summary the complainant had a grievance and raised same with her employers on the 11th September 2017. This was disregarded and not taken seriously at the time. Since then there has not been sufficient clarity provided regarding the effort to conceal the camera within a lever arch folder, and to adequately address queries raised by the complainant surrounding the camera. The respondent’s alleged attempts to suggest mediation and resolve the situation are perceived as disingenuous by the complainant. The respondents sought to minimise and excuse the surreptitious concealment of a camera when clearly there was no objective reason for same or for the failure to disclose same to the employee. If the camera was intended as a security camera it would have been in the Respondent’s interest to disclose same. The non-disclosure to the complainant and the presentation of the camera by the director frames the installation in a certain light and inferences can be drawn from same. The respondents only sought to address the claimant’s concerns upon receipt of medical certification and legal correspondence.

Case Law/Constructive Dismissal

The Labour Court in UDD1810, 9th February 2018 identified a two-tier test in respect

of constructive dismissal: -

As outlined therein

“As the complainant is alleging constructive dismissal, the fact of dismissal is in

dispute and the onus of proof rests with the complainant to establish facts to prove

Page 5that the actions of the Respondent were such as to justify her terminating her

employment.”

Application to the facts

The complainant submits that the employer did not act reasonably in engaging in clandestine surveillance of her. The monitoring of employees is addressed by the Data Commissioner and Article 29 Working Party (WP55) which specifically requires disclosure of same.

It is submitted that the conduct of the employer in this regard is relevant in assessing the legitimacy of deployment of surveillance. The fact that only one party knew of the camera, that it was positioned facing the claimant, that it was hidden (albeit badly) and that the parties were in contact during the relevant period and yet the hat the actions of the Respondent were such as to justify her terminating her employment.

Section 1 of the Act envisages two circumstances in which a resignation will be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to resign his position often referred to as the “contract test”. This requires that an employer be “guilty of conduct which is a significant breach going to the route of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance” as held in Western Excavation (ECC) Limited –v-Sharpe 1978 IRL322”.

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so she is justified in leaving.

It is submitted that if the said actions were entirely innocent, that the employer would have disclosed same, but did not. It is submitted that the employer did not act reasonably and acted in a manner which fundamentally undermined the contract of employment to such an extent that the complainant could not reasonably be expected to continue same.

In addition, the complainant points to the failure of the respondent provide the details required under section 3. .1.g and 3.1.i and 3.1.k (ii) of the Terms of Employment Information Act 1994

The claimant’s losses are approximately €6000, and she has since gained employment in similar type work

The respondent operates a small dental laboratory.

In the week prior to the incident complained of, the complainant holidayed in the director’s apartment in Spain. This is indicative of the closeness of the relationship. The director was on the premises alone in that week. She became concerned about the security of the premises as the only other tenant in the complex had vacated its premises but had commenced repairs to the property as well as removal of furniture and fittings. The director had come across unknown workmen and had found the doors to the complex left open. Secondly there is a commonly held misconception that gold (for dental repairs) is stored in dental laboratories. In the months prior to the incident there had been a number of break ins in the car park at the rear of the respondent’s premises and in the adjacent medical insurer’s property. Gardai had informed the respondent that medical equipment had been stolen.

The respondent, intending to go abroad the following week, and in the knowledge that the complainant would be on her own in the premises decided to install a camera intended to monitor the comings and goings of unidentified strangers on the premises.

The respondent trusts the complainant, was very happy with her work performance, left her on her own to run the business while his wife and himself were abroad and had lent her own Spanish apartment to her.

He regrets that he did not advise her of the installation. He apologised to her. He offered many times to meet her, to engage a third party to see how she could continue to work with them. The camera never functioned while he was on leave and he understand that the flashing red light meant it was on standby. No images were captured of the complainant.

The complainant’s conversation with the respondent on the 11 September is at odds with the conversations she had with them while they were away when the camera was not mentioned.

The complainant texted the respondent at 9pm on the 11 September to state that she would not be in the next day that she was sick. He got the same text the next day. He advised that he was sorry to hear that she was unwell and would miss her in the office. She then submitted a sick cert stating that she was suffering from a” stress disorder”. On the 15 September the co -director rang the complainant to see how she was getting along, apologised again for the camera and assured her that she and her husband trusted her. The respondent made further efforts to contact the complainant. The complainant submitted her resignation on 22 September.

The respondent points out that the contract of employment obliges the complainant to use the grievance procedure in respect of grievances. The same procedure allows for a referral to a third party such as the WRC.

The employer did not behave so unreasonably as to leave her with no other option but resignation. She did not exhaust the grievance procedure. Her claim therefore cannot succeed.

The Law.

Constructive dismissal is defined in s 1. of the act, as

“The termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee is or would have been entitled, or it was or would have been reasonable for the employee to terminate the contract without giving prior notice of the termination to the employer”.

The burden of proof rests with the complainant in a complaint of constructive dismissal. The tests for constructive dismissal were set out by Lord denning, MR in Western Excavating (ECC) v Sharp (1978)IRL322, and repeatedly set out in subsequent complaints of constructive dismissal and described thus:

“conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself discharged from any further performance”.

The reasonable test was expressed as

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be fairly be expected t put up with it any longer, the employee is justified in leaving”

The proofs which the complainant must advance to prove her case are that the behaviour of the respondent and of which she complains corresponds with the requirements laid out in one or both of the two tests and was behaviour which left her with no option other than resignation.

Did the respondent’s behaviour meet the threshold of behaviour so intolerable as to conclude that resignation was the only option?

It is accepted that a hidden camera was installed in the workplace. Its accepted that the respondent chose not to disclose this to the complainant. There is nothing to suggest that the relationship was not one of trust. The What’s App messages stray somewhat off course from the professional employer- employee relationship.

The respondent asserts that the camera was installed for the complainant’s safety. He was nervous about her being on her own on the premises. That does no sit easily with a total absence of any reference to questions to her while they were away as to intruders or any strange occurrences. Neither does it sit easily with the fact that the photographic images submitted to the hearing seem to show that the camera was trained on the desk at which the complainant worked and not the entrance. If it was to detect the comings and goings of people as the respondent states, why was it not trained on the entrance. I accept that it might have been able to catch a wider frame than just the complainant’s desk but that does not explain its main focus. If it was to protect her from intruders or unwelcome visitors, why did it need to be hidden. That is the most puzzling aspect of this. Why was it not positioned on a wall like most security devices? A device does not need to be covert to record unwelcome visitors or offer protection.

The fact that it did not function properly was not the respondent’s intention. Hence, the fact that no images were captured is coincidental and does not alter the covert nature of the surveillance. It is one thing to be so overwhelmed that you forget to tell an employee about its installation. But installing a non-covert device will not lessen the workload nor impede its powers of detection.

The Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61: in considering the ‘reasonableness test’ stated

“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

This reference to the employer’s conduct is understood to represent something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

As no adequate reason was supplied as to why the device, intended for the complainant’s protection needed to be concealed, I cannot accept that it was merely there to protect the complainant. I find that the employer’s actions, though a once off, were sufficiently damaging to the relationship of trust to which both parties are entitled. I consider the respondent’s actions in intending to operate a concealed surveillance system amounts to a breach of the implied term of trust and confidence. I find that there has been a fundamental or repudiatory breach going to the root of the contract, entitling the complainant to resign and claim constructive dismissal. I find that the complainant was justified in her resignation and it meets the tests set out in the above mentioned authorities.

In the circumstances, the decision not to use the grievance procedure does not undermine the complainant’s complaint.

Loss.

The complainant secured alternative employment on the 8 March 2018 on a slightly increased salary.

Her loss was put at €6000. I decide the respondent should pay the complainant the sum of €5000.

I decide that the complainant is well founded. I decide that the respondent should pay the complainant the sum of €5000.

Constructive dismissal complaint upheld; covert surveillance of employee by employer