ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00009054

Parties:

Complaint:

Date of Adjudication Hearing: 23/03/2018 & 26/03/2018

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

This complaint of unfair dismissal was referred to the Workplace Relations Commission on 15th June 2017. In accordance with Section 8 of the Unfair Dismissals Acts 1977-2015, following the referral of this complaint to me by the Director General, I inquired into the complaint and gave the Parties an opportunity to be heard by me and to present any relevant evidence. The Complainant was represented by SIPTU whilst the Respondent was represented by Mr Anthony Kerr SC, instructed by Doyle Solicitors. This complaint was initially dealt with on a case management basis on 19th January 2018 and was heard over two days on 23rd and 26th March 2018. The paperwork submitted was voluminous and lengthy evidence was adduced. The decision-makers and HR staff involved in the process giving rise to the Complainant’s dismissal all gave evidence on behalf of the Respondent and the Complainant gave evidence on his own behalf. The Parties’ respective positions are summarised hereunder followed by my findings & conclusions and decision. All evidence, written submissions, supporting documentation and law presented by both Parties have been taken into consideration.

Background:

The Complainant complained that he had been unfairly dismissed for misconduct by the Respondent Charity on 10th April 2017. He had been employed by the Respondent since 13th October 2008 and held the position of Gym Manager from 5th May 2009. He therefore had the requisite 12 months’ service to bring a complaint of unfair dismissal under Section 8 of the Unfair Dismissals Acts. It was common-case that he was earning an average of €3575 monthly for the reference period. Arising from an incident on Sunday 14th August 2016, when a person (Mr A) attempted to gain access to the gym outside of designated opening hours, the Respondent commenced an investigation into unauthorised access to the gym for which the Complainant had direct responsibility. CCTV further revealed regular use of the gym outside of designated opening hours. The investigation also extended to the Complainant’s conduct in response to this investigation. In particular, it was alleged that on 19th October 2016, two days prior to being placed on administrative leave, he had altered a number of records including updating the memberships for two persons subject to the alleged unauthorised access without receipt of payment or requisite paperwork and had further emailed personal data and records to himself in breach of Data Protection legislation and the Respondent’s Policy. Arising from the investigation findings, a disciplinary process commenced against the Complainant leading to his dismissal with pay in lieu of notice. The Respondent contended that his misconduct could not be addressed with a lesser sanction, whilst the Complainant contended that the process was both substantively and procedurally unfair and/or that dismissal was a disproportionate response. The Complainant had not secured alternative employment as at the hearing date and sought compensation by way of remedy. As the burden of proof rests with the Respondent to demonstrate that the dismissal was fair, it gave evidence first as set out hereunder.

Summary of Respondent’s Case:

Written submissions and documentation pertaining to the investigation and disciplinary processes were supplemented with direct evidence from all the personnel involved, commencing with the HR Director. He provided a background to the Respondent Charity, its funding and structure before proceeding to outline the gym set-up subject to this complaint. The Respondent is a large organisation with branches throughout the Country and is primarily State-funded. The gym is located upstairs from a large sports hall based at its Headquarters and is accessed via stairs or a lift. It is designed to accommodate the specific needs of service users but is also used by staff, volunteers and the public. At the material time, the Complainant was responsible for overseeing the daily running of the gym and managing the staff working therein. He reported to the Director of Sport whose office was located within the same building and had more far-reaching responsibilities. The Respondent held an insurance policy for the whole organisation including the gym. Risk management and ensuring that there were no uninsured risks such as unsupervised use of the gym was key to the Manager’s role. A clear fee structure reflecting the various categories of membership was in place and published on the Respondent’s website. Day and guest passes were also available for a small fee. There were designated gym opening hours from Monday to Saturday also published on the website. Whilst the gym was closed on Sundays, a variety of organisations used the sports hall at weekends. Access to the building by keyholders required entering a code to disarm the alarm to the main building and pin-code to access the gym. The main building was open during gym hours and gym members were provided with a fob to enable access operated via the gym computer.

The HR Director also outlined the importance of the Respondent’s Code of Conduct as referenced in the Complainant’s contract and contained in its Handbook, highlighting the sections most relevant to the conduct giving rise to his dismissal. As a service provider for vulnerable adults and children, of most significance was the duty of trust and confidence resting with the Respondent’s employees including the Complainant. He was also obliged to adhere to the Respondent’s Data Protection Policy especially given the sensitive nature of its work. His position as a Manager imposed a greater onus to undertake his duties to the highest standard in relation to all aspects of running the gym. This imputed an expectation that payment would be taken in respect of all persons recorded as members and that only paid-up members would be allowed access. Following an incident of money going missing in 2016, a written cash handling policy had been put in place. The Complainant had overseen the installation of a CCTV system in the gym for security reasons including health and safety following a number of incidents, and was responsible for monitoring same. The HR Director emphasised the importance of adherence to the Code of Conduct in circumstances where the Respondent was primarily State-funded, and non-compliance could adversely affect its funding.

Whilst the Director of Sport had overall responsibility for the security of the building, the HR Director confirmed that he had never been interviewed in relation to the investigation following the incident of attempted unauthorised access on 14th August 2016. In this respect, he said the Respondent was entitled to rely on an email from the Complainant to the Director of Sport dated 22nd August 2016 stating: “No agreement is or has been in place to allow any member use facility outside of operating hours.” The email also confirmed that the only agreed after-hours access was with a gym attendant for training on Sundays. The Complainant’s Representative also questioned the HR Director as to whether the Respondent’s Disciplinary Policy allowed for reliance on CCTV. He confirmed that it was covered under its Data Protection Policy as electronic data and the Disciplinary Policy did not go into the level of detail as to categorise what types of evidence may be used within a disciplinary process. Additionally, the Complainant himself had been involved in the installation of the CCTV system and was responsible for the operation of same, the cameras were in clear view and there was signage in place confirming the operation of same. In any event, the incident on 14th August 2016 was the catalyst for directing the investigation and the CCTV confirmed the scale of the after-hours access under the Complainant’s management. When asked why the matter had not been addressed informally, the HR Director confirmed that it was such a serious issue given the Respondent’s duties and obligations to ensure health and safety and manage risks, that a formal investigation was merited. Other perceived unfairness with the process was put to the HR Director and refuted.

Investigation Process

The Respondent’s Employee Relations Officer was appointed as the Investigating Officer to oversee the investigation. He gave evidence of the process adopted with reference to the documentation provided. He confirmed his academic qualifications and extensive relevant experience qualifying him to undertake workplace investigations. He also confirmed that arising from the incident of attempted unauthorised access on 14th August 2016 and contradiction between a review of CCTV revealing regular after-hours use of the gym and the aforementioned email from the Complainant confirming there was no agreed after-hours access, the Director of Sport had requested that he undertake an investigation into same. A large book of CCTV stills had been compiled (noting that the CCTV footage was self-deleting after 60 days) which showed various persons accessing the main building and using the gym outside of designated opening hours, including the Complainant and his girlfriend and current and former members of staff on a regular basis. By letters dated 14th October 2016, the Complainant and the other gym staff were advised of the Respondent’s concerns in this regard and that management had decided to conduct an investigation, emphasising its confidential nature. A meeting was scheduled with the Complainant for 20th October 2016, but he declined to attend owing to the unavailability of his Trade Union Representative. By hand-delivered letter on 21st October 2016, he was provided with the Terms of Reference for the investigation process and copy of the Respondent’s Disciplinary Procedures and Code of Conduct. The Terms of Reference stated: “The purpose of the investigation is to establish the facts as to the access and usage of the (Respondent) gym outside of the designated normal opening hours. The investigation team will prepare an Investigation Report which will outline their conclusions and include any appropriate recommendations arising. The scope of the investigation may include such matters as membership and payment of membership fees, access and gym security, health and safety, supervision, insurance and data protection. This list is not intended to be exhaustive and may be added to at the discretion of the investigation team.” This letter also required the Complainant to attend a rescheduled meeting with the Investigation Team on 27th October 2016 with an entitlement to be accompanied. It further confirmed that he was being placed on paid administrative leave with immediate effect, and that this was a ‘neutral act’ which would have no bearing on the outcome of the process and was to facilitate the investigation. The meeting with the investigation team was postponed several more times at the request of the Complainant. In the interim, the Investigating Officer had interviewed all the other staff involved or able to provide information about the gym processes and procedures. He explained that he had not interviewed the Director of Sport as the Director of Sport had directed the investigation and he had wanted to avoid any contamination of the process.

By letter dated 10th November 2016, the Complainant’s Trade Union Representative wrote to the Investigating Officer raising issues with the investigation process including the decision to place the Complainant on administrative leave and sought confirmation of any specific allegations against him along with all relevant documentation and CCTV footage. The Representative also sought to be consulted in relation to setting the Terms of Reference which he contended were too broad. In a response dated 18th November 2016, the Investigating Officer repeated the purpose and the scope of the investigation and outlined the postponed hearings to date stating: “I wish to confirm that the Complainant was invited to the aforementioned meetings in his capacity as a witness who could potentially provide relevant information to assist with the investigation. It is clear that your member does not intend to cooperate with the investigation team in this regard, by virtue of his failure to attend a meeting on four separate occasions. On this basis, you are advised that the investigation team will now consider the information that has been gathered thus far and make an assessment as to whether or not there is an implication of impropriety against (the Complainant) requiring a formal response.” The Complainant’s Representative sent a response of 25th November 2016 raising issues with the process being adopted and the aforesaid reference to the Complainant not cooperating as amounting to bias against him. Under cover of letter dated 5th December 2016, the Investigating Officer repeated his position again and provided the Complainant with the documentation gathered to date including CCTV stills, database records and interviews and notified him of a rescheduled meeting on 9th December 2016. He felt that he had been very patient with him in the circumstances.

The Complainant and his Representative attended the meeting of 9th December 2016 and complained that they had not had sufficient time to consider all the material but went ahead anyway. Two versions of the minutes were taken, a more summary form on behalf of the Respondent and a detailed version by the Complainant. Whilst the Investigating Officer did not accept the latter as being accurate, both were considered in the process. They reveal a fractious exchange, with the Complainant contending throughout that the Respondent was presenting a distorted picture based upon the documentation relied upon which he referred to as the ‘book of evidence’. In particular, he objected to the use of CCTV which he contended was in breach of his Data Protection rights and the selective use of CCTV stills showing after-hours access to the gym making up the bulk of the documentation. He raised numerous other issues including the absence of an informal process, the manner in which the Director of Sport had commenced the investigation including an interview with an unreliable witness and decision to place him on administrative leave.

At the outset, the Investigation Officer outlined the process including the “information-gathering” role of the Team, confirming that they were “investigators not prosecutors” and that the Complainant “…was being viewed as a witness similar to his colleagues; however a witness with concerns that had arisen about him.” The Complainant was asked about the logistics of the daily running of the gym including access and processing of memberships, the after-hours access identified, the alteration of records for two of those involved, disablement of the CCTV system and the emailing of personal data pertaining to two members of staff and sports hall calendar bookings to his personal email account on 19th October 2016. In relation to after-hours access to the gym, the Complainant had contended that the opening hours and access were flexible and that various persons including cleaners and groups using the hall had access. Additionally, various custom and practice and legacy agreements allowed for staff to use the Respondent’s facilities including after-hours and as this practice preceded his management, his predecessor, the Director of Sport should be asked to clarify same. Whilst gym staff were entitled to use the gym after-hours, he was unaware that one of the gym attendants was accompanied by a personal trainer on these occasions and denied knowledge of the other after-hours access. He contended that a former staff member who had been regularly using the gym after-hours with his wife (both of whom had lapsed memberships) had retained a key and he would have provided him with the requisite codes owing to his ongoing voluntary work in the gym. When asked about CCTV stills showing his girlfriend accessing the gym and office, he said that she was accompanying him whilst undertaking additional duties and was also a member. It was put to him that his girlfriend’s membership was lapsed at the material time and CCTV and computer records showed that on 19th October 2016, two days before his administrative leave, he had backdated renewal of her membership along with that of Mr A, the person who had attempted to gain access on 14th August 2016 without receipt of payment or requisite paperwork for either. In response, the Complainant referred to human error and ongoing systems issues and said that his girlfriend had originally received a gift membership won in a raffle hence showing a zero payment which remained when renewed. She had paid for the renewal some months previously and been issued with a receipt, a duplicate of which should be contained in the receipt book. In relation to the renewal of Mr A’s membership, he said he had pulled him up on his attempt to access the gym after-hours but for various reasons had to accept his word that he had already paid for his renewal. He was unable to explain why no renewal documentation existed. He denied that he was responsible for disabling the CCTV network on the same date. Finally, he was asked why he had emailed screenshots of the details of two members of staff including the Director of Sport (containing their telephone numbers) along with sports hall calendar bookings to his personal email account on the same date. He denied that this was personal data contending that his own privacy had been breached and said he had required this as evidence for the purposes of the investigation.

Following the meeting, in a letter dated 15th December 2016, the Complainant’s Representative again raised concerns regarding the Respondent’s use of CCTV footage. The Investigating Officer issued a response dated 20th January 2017 stating that the Respondent was fully compliant with its data protection obligations and the use of the CCTV footage was appropriate given its relevance. It was also pointed out that the Complainant himself had installed the CCTV system for security purposes. There was a further exchange of emails between the Complainant and Investigating Officer relating to the minutes and a data access request. By letter dated 31st January 2017, the Complainant was informed that the investigation had concluded and provided with the Investigation Report. In particular, it stated: “You will note from the Report’s findings that the investigation team has found that your conduct has fallen below the minimum professional standards expected of (Respondent) employees and on this basis the investigation team has recommended that a disciplinary process be commenced.” It notified him that he was to attend a disciplinary meeting: “The purpose of this meeting is to allow you an opportunity to give reasons why a disciplinary sanction should not be applied in respect of your conduct regarding the following findings from the investigation report.” The findings included (1) facilitating his girlfriend in accessing and using the gym after-hours and allowing her unsupervised access to the office for storage of her personal items; (2) altering her gym membership profile on 19th October 2016 to show a renewal for 12 months despite no transaction being made or renewal documentation existing; (3) altering Mr A’s membership profile on 19th October 2016 to show a renewal for 12 months and a €70 transaction despite no transaction having been made or any renewal documentation existing; (4) facilitating a former member of staff and his wife with after-hours access and use of the gym by allowing him to retain a key after the cessation of his employment and sending him an updated gym code and (5) emailing screen-shots of gym members’ details from the gym database and the sports hall calendar to his personal email account in possible breach of Data Protection legislation and the Respondent’s Data Protection Policy. The Report also made various recommendations including writing to all those involved in the after-hours access to remind them that this was not permitted, introduction of new security measures and issuing of written step-by-step operating procedures. The Investigating Officer also confirmed that disciplinary action had been considered in relation to the other gym staff involved but it was felt that it would be unfair to punish them for the actions of their Manager. Overall, he felt that the Complainant had been afforded fair procedures throughout the process.

Under questioning from the Complainant’s Representative, the Investigating Officer confirmed that the decision to place the Complainant on administrative leave was made for security reasons. Other objections to the investigation process such as the absence of an informal process, the expansive nature of the Terms of Reference and the reliance upon CCTV were revisited and nothing new arose.

Disciplinary Process

A Disciplinary Team comprising of an Area Manager and HR Team Leader were appointed to deal with the disciplinary process and both gave evidence confirming the process adopted. Firstly, they confirmed their qualifications, extensive experience and impartiality which was not called into question. They then proceeded to describe the disciplinary process adopted. By letter dated 9th February 2017, they wrote to the Complainant confirming that he had received all the relevant documentation and inviting him to a disciplinary meeting on 17th February 2017. They also ensured that they were in possession of all relevant documentation and met beforehand to go through everything. The Complainant attended at the meeting with his Representative where all five findings were put to him to enable him to respond to same as noted in the agreed minutes furnished. He provided explanations which broadly mirrored those given during the investigation meeting. Following the meeting, they further investigated and considered each of the explanations given. They gave reasons for rejecting same and upholding each finding in their letter of 10th April 2017, also confirming the decision to dismiss him. In particular, the Team had examined his contention that after-hours access to the sports hall and gym had been custom and practice before his management and found no evidence to support this. They also examined other examples he had provided of staff using the Respondent’s facilities for their own private purposes and were satisfied that they all occurred with express authorisation. In relation to the alteration of the Complainant’s girlfriend’s gym membership profile on 19th October 2016 without receipt of payment, they noted that he had produced a receipt for €220 which he claimed referred to the payment but would not allow them to retain it. Despite conducting various searches using the receipt number, it could not be matched with the gym receipt books. In relation to his contention that there were technical issues with the IT System, further investigation of the examples of other discrepancies he provided confirmed that they resulted from human error. Likewise, they rejected his reasons for renewing Mr A’s membership without confirmation of payment. Having found there to be no authorised practice of after-hours access to the gym, they also upheld the finding that the Complainant had facilitated a former member of staff and his wife with after-hours access to the gym by allowing him to retain a key after the cessation of his employment and sending him the updated code to the gym. They also noted that there was no formal record of that staff member remaining as a volunteer as contended. Finally, the Team were satisfied that the Complainant’s admitted emailing of screen-shots of two members’ personal details from the database and information from the sports centre calendar to his personal email account was a breach of the Data Protection legislation and Respondent’s Policy.

In the same letter, the Disciplinary Team further explained that as the Respondent provides services to vulnerable people, a high ethical standard of conduct is required of its staff. It is therefore entitled to place a high level of trust and confidence in all of its employees and they must not act in any way that could damage its reputation. It was the Team’s view that the Complainant’s conduct had breached the required standards and “In considering the level of sanction to be applied in respect of this breach, the disciplinary team must give consideration to the severity of the breach in question and consider whether the trust and confidence which (the Respondent) is entitled to have in you as an employee has been breached. It is the view of the disciplinary team that your behaviour and conduct has irrevocably breached the duty of trust and confidence and on this basis, the disciplinary team find that dismissal is the appropriate sanction in these particular circumstances.” The letter went on to confirm that the Complainant would be paid in lieu of notice and issued with a P45 and outlined the procedures for appealing the decision. The Team confirmed that they had met and carefully considered the full range of available sanctions including lesser sanctions such as demotion. However, they felt that dismissal was the only available sanction given the seriousness of the misconduct and lack of mitigating circumstances. Given the deliberate alteration of records, the misconduct had not been considered in terms of poor management whereby a Performance Improvement Plan might have been more appropriate. They reiterated that the decision to dismiss had not been taken lightly and was authorised by the CEO as required by the Procedures. Overall, they had adhered to natural justice and fair procedures in their conduct of the disciplinary process.

The Complainant’s Representative questioned the Disciplinary Team as to the process adopted. In particular, he put it to them that the gym opening hours were ambiguous without any clear guidelines. They confirmed their view that the gym opening hours are very clear and there was no evidence of custom and practice after-hours access other than that outlined in this investigation. They confirmed that they had held a two-hour meeting to go through each finding and had considered all available sanctions. When asked about the authorising of the sanction of dismissal by the CEO, they referred to a provision in the Procedures providing for same given its seriousness.

The Director of HR further clarified that the provision for authorisation by the CEO was a check and balance to ensure that a disciplinary process had been conducted properly and the sanction of dismissal was proportionate. He referred to examples of gross misconduct listed in the Disciplinary Procedures including the alteration of and falsification of records and breach of confidentiality. He submitted that as the Complainant held the position of a Manager a higher standard was expected and given the finding that he had enabled unauthorised after-hours access to the gym, admitted to altering records and emailing personal data to himself, dismissal was a proportionate sanction.

Appeal Process

By letter dated 12th April 2017, the Complainant’s Representative appealed the Respondent’s decision to dismiss the Complainant. The Appeals Officer appointed to hear the appeal confirmed his qualifications, experience and independence before outlining the appeal process adopted. He explained that the purpose of the appeal was not a re-investigation but an assessment of the process and correctness of the decision. He confirmed that he had obtained and read through all the relevant documentation before holding an oral appeal hearing on 17th May 2017 in accordance with the Respondent’s Disciplinary Procedures. The Complainant attended with his Representative and made submissions similar to those made throughout the process under the headings ‘Mitigating Circumstances’, ‘Breach of Data Protection’ and ‘Severity of Sanction’. In particular, it was submitted that the case against him was ‘manufactured’ from a flawed pre-investigation process; the process itself was flawed and there was an absence of fairness and impartiality at every stage; after-hours use of the gym was custom and practice put in place by his predecessor; there were double-standards given the private usage of other facilities by staff; the CCTV images were used selectively and in breach of his Data Protection rights; he had appropriately updated the membership profiles as part of his management role and no personal information was emailed to his private email account other than that already publicly available on the Respondent’s website. As he was completely innocent of the alleged misconduct, there should be no sanction imposed and “acceptance of any sanction would be an acceptance of some wrong doing and a total injustice”. The meeting had been lengthy and was at times quite confrontational with the Appeals Officer’s impartiality questioned at one stage. Additional post-hearing submissions were also considered.

In his letter of 30th May 2017 upholding the disciplinary findings and sanction of dismissal, the Appeals Officer outlined the basis for the process before going through each stage and finding same to be fair and impartial. He rejected the Complainant’s contention that a case had been ‘manufactured’ against him particularly given the variance between the after-hours use of the gym established and his emailed response of 22nd August 2016 to the Director of Sport stating: “No agreement is or has been in place to allow any member use facility outside of operating hours.” In relation to the updating of membership profiles without receipt of payment, he found that the Complainant’s explanations lacked credibility and the data he had emailed to his private email account contained private details of members so was clearly in breach of the legislation and Respondent’s Data Protection Policy. He also concluded that the CCTV stills had not been used selectively and that CCTV had been used appropriately and his queries in this regard were adequately addressed. Having disallowed the grounds of appeal, he found that the sanction of dismissal was warranted given the nature of the Respondent’s service and the severity of the breach of the required level of trust and confidence in its employees and particularly its managers. He had considered the available lesser sanctions including demotion which he found not to be appropriate in the circumstances. He was independently minded and had overturned dismissals in the past. Whilst there was evidence of poor management, the Complainant had carried out deliberate acts and would not accept any wrongdoing. Finally, he had addressed other issues raised with the process. Nothing new arose from the Complainant’s Representative’s questioning of him.

Regarding the Complainant’s efforts at mitigating his losses, a HR member confirmed that the Respondent had only been asked by one prospective employer for a reference letter and it had provided a neutrally worded statement of his employment dated 22nd November 2017 as furnished.

Counsel for the Respondent supplemented written submissions with oral submissions outlining the relevant legal principles as they applied to the factual matrix herein. He acknowledged that the burden rests with the employer to show substantial grounds for dismissal and a full and fair process. Regarding the role of the WRC in assessing the fairness of a dismissal, he referred to decisions of the former EAT (now WRC) in Pacelli -v- Irish Distillers Ltd (2004) ELR 25 and Bunyan -v- United Dominions Trust (1982) ILRM 404 (where there had also been a breach of trust and confidence) which endorsed the view that “… the fairness or unfairness of the dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether or not on evidence before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.” This approach has been followed in numerous other cases including The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241 as outlined below. As the Respondent was primarily publicly funded to care for vulnerable people it was required to abide by high ethical standards as contained in its Code of Conduct and have a commensurate level of trust and confidence in the Complainant. In all the circumstances, and particularly given his admissions, it was reasonable for the Respondent to dismiss him following what had been a very thorough, fair and distinct investigation and disciplinary processes. Counsel also distinguished the factual position regarding the use of CCTV from that in the cases relied upon by the Complainant where the Data Protection Commissioner had made adverse findings and/or the use of CCTV had been covert. Overall, he contended that the Respondent had discharged the burden to show that the dismissal was substantially and procedurally fair and sought to have this complaint dismissed.

Summary of Complainant’s Case:

The Complainant gave evidence confirming his qualifications and experience leading to his employment with the Respondent and subsequent appointment as a Gym Manager on 13th October 2008. He had been given limited induction training and there had been no written operating procedures. He outlined various issues with the running of the gym before his management including no quantification of membership, lack of consistency in recording memberships and applying rates, access abuses including groups using the hall accessing the gym, cash handling issues and lack of clarity regarding insurance coverage. He outlined a number of measures which he had introduced to address same including the installation of security doors. During a renovation, CCTV was also installed for monitoring purposes following incidents of theft. He had raised various issues with the Director of Sport regarding codes being given out and unsupervised gym access and had previously emailed staff regarding unauthorised access as furnished. He had never been shown any policy but understood that once a member of staff was present, insurance covered use of the gym.

The Complainant then outlined the investigation and disciplinary processes from his perspective supplementing written submissions which raised numerous issues with the process adopted. He was placed on administrative leave on 21st October 2017, in the absence of any formal process. His keys, work laptop and phone were confiscated. He addressed each of the five findings against him in the Investigation Report, repeating his position as adopted throughout the process. In particular, he contended that as a member his girlfriend was entitled to use the gym and she had attended to assist him with weekend events in the hall but the selective use of CCTV had not shown that. He again referred to the custom and practice use of the Respondent’s facilities by staff as sanctioned by the Director of Sport including the other gym attendants’ after-hours use. He accepted that he had altered the membership profiles for both his girlfriend and Mr A on 19th October 2016 after receipt of notice of the investigation meeting the day before. Following a staff meeting, this was to ensure that records were ‘aligned’ and he had also deleted some duplicate memberships which he felt was appropriate action. His girlfriend had confirmed she had paid previously, and he did not have a copy of the receipt to furnish to the Disciplinary Team. For various reasons, he also had to accept Mr A’s word that he had also paid without a receipt but in hindsight, he should have discussed this discrepancy with the Director of Sport. Regarding the after-hours use of the gym by a former employee, he said he held a key as a volunteer and the Complainant had given him the relevant code for the purposes of undertaking work in the gym. He had been unaware that his wife had also been using the gym. He said that at the time of emailing the screen-shots of two members’ details from the database and information from the sports hall calendar to his personal email account, he had been unaware that they comprised personal data, he had also felt threatened and needed them as evidence for the forthcoming investigation meeting. He also had interpersonal difficulties with the Director of Sport who was aware of the after-hours use of the gym and had tried to distance himself from this in their email exchange in August 2016. Finally, he gave vouched evidence of his efforts to mitigate his losses including applying unsuccessfully for numerous jobs, exploring a business plan and undertaking an online Master’s Degree and he sought financial compensation by way of remedy.

Counsel for the Respondent questioned the Complainant at length eliciting an argumentative response to many of his questions. He put his contract and Respondent’s Policies and Procedures to him highlighting the relevant sections including the duty of trust and confidence and data protection obligations and asked whether he recalled receiving, signing for and/or reading same. Whilst the Complainant accepted that he had received his contract and Code of Conduct in 2009, he could not recall reading same. He could not recall when he had received the Disciplinary Procedures before this process. He said he did not have time to update himself on the Policies and Procedures on the Respondent’s Intranet. He disagreed that his job description fully reflected his role, contending that some of the responsibilities fell to the Director of Sport. When asked about his role in monitoring staff and whether it included ensuring that there was no unauthorised access, he contended that the Director of Sport also had a responsibility for same. He accepted that he had been involved in the installation of the CCTV system and was aware of the location of cameras. He was referred to emails he had written in 2013 acknowledging that unsupervised use of the gym was not covered by the Respondent’s insurance. He was also questioned about the matters giving rise to these disciplinary proceedings and the processes adopted. When put to him, the Complainant admitted to facilitating his girlfriend’s use of the gym, he admitted to altering the membership profiles for his girlfriend and Mr A and emailing members’ personal data to himself. He also accepted that he was aware that the other former employee had used the gym. Counsel for the Respondent challenged the credibility of his explanations for same and in particular, the alteration of membership profiles on 19th October 2016, following receipt of notification of the investigation. The Complainant also confirmed that he had not made any complaint to the Data Protection Commissioner regarding the use of CCTV.

The Complainant’s Representative submitted that the Complainant’s dismissal was substantially and procedurally unfair and contrary to the requirements set out in Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137. He had not been furnished with any allegations before the investigation process. He had not been afforded an informal process and administrative leave had been an extreme measure. He had not been afforded due process, the Terms of Reference were vague and too broad and the Union had not been consulted regarding same. The Complainant’s explanations and arguments had been dismissed throughout. The Investigation Team had acted beyond its remit and had become prosecutors / judges and a flawed investigation process had led to a flawed outcome. As found in UD1355/09: “The onus is on the Respondent to update and remind employees of what is expected of them.” and reliance on various handbooks as the source of rules and practices was inappropriate. The Representative again raised issues with the legality of the use of CCTV in the process and the selective use of CCTV stills placing reliance on the reasoning in Sutcliffe -v- Last Passive Ltd t/a Aircoach r-152770-ud-14 & Deegan -v- Dunnes Stores UD 202/2012. In the alternative, it was submitted that dismissal was a disproportionate sanction for the alleged misconduct and a lesser sanction would have sufficed given that the Complainant had previously had an unblemished record. Furthermore, it did not amount to gross misconduct justifying dismissal. In this respect, reliance was placed on a number of cases where the misconduct involved was found not to reach the threshold of gross misconduct and an exchange of views regarding same ensued.

Findings and Conclusions:

It is necessary to examine the factual matrix giving rise to this complaint of unfair dismissal in light of the applicable statutory provisions and caselaw. Section 6 of the Unfair Dismissals Acts provides the legal framework. Whilst Section 6(4)(b) expressly lists the grounds where dismissal of an employee shall not be deemed to be unfair including dismissal wholly or mainly from the conduct of the employee, Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair and Section 6(7) provides for an Adjudication Officer to have regard for “(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act (to provide written reasons when requested) or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” Along similar lines to the aforementioned caselaw, the High Court in JVC Europe Ltd -v- Panisi (2011) IEHC 279, aptly summarised this legal framework as follows: “The issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify dismissal.” In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.” It is also well established that an employee has a contractual, constitutional and statutory entitlement to fair procedures. (See Re: Haughey (1971) IR 217). In particular, S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) provides that employers should have written procedures for dealing with disciplinary issues reflecting the varying circumstances and complying with the general principles of natural justice and fair procedures. In terms of weighing up the substantive issues leading to the dismissal and the fairness of the procedures adopted, the correct approach is to consider both together as per Iceland Frozen Foods -v- Jones (1983) 1 ICR 17.

Where a question of unfair dismissal is in issue, in its judgement in Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137, the High Court provided a list of ‘premises’ which must be established to support an employer’s decision to terminate employment for misconduct, being as follows:

“1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.
3. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.
4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.
5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

To summarise the legal position, my role is not to conduct a further factual investigation and substitute my own judgment for that of the employer but rather to objectively access whether the decision to dismiss the employee was reasonable for that particular employer in the circumstances. Based upon the following reasoning, I am satisfied that the Respondent has discharged the onus of proving that the Complainant’s dismissal was both substantially and procedurally fair in this case:

Firstly, I find no basis for the Complainant’s contention that a case was manufactured against him, particularly where there is no evidence that the incident of attempted unauthorised access to the gym on 14th August 2016 which initiated the investigation process was orchestrated in any way. The contention that the Director of Sport was motivated by interpersonal difficulties in pursuing a formal investigation lacks credibility especially given that it was first proffered at this hearing. Given the extent of the after-hours access to the gym as disclosed by a subsequent examination of CCTV in disparity with the Complainant’s email of 22nd August 2016 indicating that no such agreed after-hours access was in place and the serious health and safety implications of unsupervised access, I find that it was reasonable for the Respondent to embark upon a formal investigation process as opposed to addressing the issue informally. For the same reasons, I cannot find anything unreasonable about the decision to place the Complainant on administrative leave. Furthermore, there was no procedural requirement to obtain his agreement to the Terms of Reference and I find nothing unreasonable about the broad-reaching nature of same given the aforesaid circumstances.

I further note that the Respondent had written Disciplinary Procedures which had been furnished to the Complainant and were followed. I also had the opportunity of hearing from all the decision-makers who partook in the investigation and disciplinary processes and am satisfied that they were all suitably qualified and impartial. Regarding the perception of bias arising from the Investigating Officer’s comments following the Complainant’s repeated postponements of the meeting, I am satisfied from his evidence and the correspondence that this was borne out of frustration. I note that at all material times, the Complainant had very able Trade Union representation and was afforded the opportunity to put his case forward at all stages. I did however have some concern that the investigation findings went beyond the stated factfinding, information-gathering role of the Investigation Team as “investigators not prosecutors” by making express findings of wrongdoing against the Complainant. However, I do not consider this to be a fatal flaw in circumstances where he was made aware that there were concerns about his conduct at the investigation meeting, was in possession of the relevant documentation at that stage and was afforded the full panoply of fair procedures in keeping with authorities on this issue, including Representation and opportunity of putting his case fully. He was also afforded a further opportunity to put his case at the Disciplinary hearing. In any event, the facts were not substantially in dispute but rather the Complainant had sought to provide explanations for the findings which he contended exonerated him from any wrong-doing. In this respect, I am also satisfied that the explanations provided were properly investigated by the Disciplinary Team and reasonably discounted based upon the information obtained. I am further satisfied that both the Disciplinary Team and Appeals Officer considered the full range of disciplinary sanctions available before finding dismissal to be the appropriate sanction. I cannot find any basis for what I regard as other minor immaterial issues raised with the process.

Regarding the Complainant’s objection to the Respondent’s reliance on CCTV evidence, the caselaw relied upon refers to instances where adverse findings were made by the Data Protection Commissioner with the remit to determine the lawfulness of same and/or the recording was covert. In the instant case, no complaint had ever been made to the Data Protection Commissioner and the Complainant was well aware of the use of CCTV, having been involved in its installation and monitoring and I find no procedural unfairness with the reliance upon same. In any event, the adverse findings against the Complainant were not dependent upon the CCTV evidence alone.

The next question is whether the dismissal was substantially fair and proportionate noting that this was a dismissal with pay in lieu of notice. Given that the Respondent’s written Codes of Conduct had been furnished to the Complainant, I am satisfied that they provide a reasonable gauge of the level of trust and confidence expected from its employees, and particularly managers in light of the sensitive nature of its work. As a Manager, it was also reasonable to expect the Complainant to regularly update himself and when questioned about this, his response to the effect that he did not do so did little to instil confidence. In this respect UD1355/09 relied upon by the Complainant to contend that the onus rested with the Respondent to update and remind employees of the conduct expected of them may be distinguished on the basis that it referred to an ordinary member of staff and not someone of managerial level. Regarding the misconduct itself, had the dismissal been based alone on the issue of after-hours access to the gym, I would have had some cause for concern. This arises from the absence of any written operational guidelines regarding after-hours access to the gym warning of zero tolerance for non-compliance giving rise to dismissal as per The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241 andclarification from the Director of Sport with overall responsibility for same. Furthermore, this was clearly a grey area given that the after-hours access by the other members of gym staff was found to be unauthorised by the Investigating Officer but yet did not form part of the disciplinary process against the Complainant.

However, I am satisfied that the sanction of dismissal was an objectively reasonable response to the Complainant’s conduct when taken as a whole and including his admissions to the alteration of the membership profiles for his girlfriend and Mr A (both subject to the investigation) and emailing himself personal data on 19th October 2016 (which he first accepted as comprising of personal data at this hearing) in breach of the Respondent’s Data Protection Policy. Notably this was also undertaken in response to receiving notice of the investigation process flagging the importance of confidentiality. Given that such actions were listed as amounting to gross misconduct under the Disciplinary Procedures as outlined above e.g. deliberate interference with records and breach of confidentiality, the Complainant could not have been under any illusion that dismissal was not a possibility. I am further satisfied that the reasons given by the various decision-makers for discounting the Complainant’s explanations were well-founded based upon all the evidence, information and documentation before them. Notwithstanding the numerous issues raised by the Complainant with the process adopted, there is no getting away from the unrefuted findings and given the sensitive nature of its work, I do not consider it unreasonable for the Respondent to regard this conduct as an irrevocable breach of trust and confidence notwithstanding his prior good record. Whilst this process has undoubtedly been difficult for the Complainant, unfortunately his defensive demeanour adopted throughout and his inability to accept any wrongdoing made it extremely difficult for the Respondent to consider alternative lesser sanctions such as demotion and retraining. Overall and based upon the aforesaid reasoning, I am satisfied that the requirements of Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137 were met and the Complaint’s dismissal was not unfair.

Decision:

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this complaint in accordance with the relevant statutory provisions. Based upon the aforesaid reasoning, I find this complaint of unfair dismissal not to be well-founded and accordingly, dismiss same.

Dated:   14th March 2019

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Unfair Dismissal Acts 1977-2015 - misconduct - substantive & procedural fairness