Complainant

Respondent

Anonymised Parties

A General Operative

An Airline Operator

Representatives

Michael Kinsley BL instructed by Bruce St. John Blake & Co. Solicitors

Tom Mallon BL instructed by Arthur Cox

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00022478-001

08/10/2018

The Complainant was employed by the Respondent as a general operative on the 1st of February 2000 and his employment was terminated on the 21st of September 2018. He worked a 39 hour week and was paid €2,200 fortnightly. He is claiming that he was unfairly dismissed. The Respondent said that the Complainant was dismissed for gross misconduct because he deliberately damaged company property.

The Complainant commenced employment with the Respondent on the 17th of February 2000 as an operative in the loading section. He trained as a driver and was qualified to operate company vehicles in the airside security area of the airport. The company has approximately 206 ground operation vehicles airside. In February 2018 a decision was taken to upgrade the existing on-board location technology in each of these vehicles. A contract was awarded to supply the vehicle telematics systems which involved disconnecting the old hardware and replacing it with new equipment and software. The new telematics system requires vehicles to be started by an individual ID card, and not a generic key fob as was the case with the previous technology. This assists in placing identified individuals at each vehicle.  Other features of the new vehicle telematics system are vehicle tracking, access only to vehicles which employees have been approved to operate, vehicle speed alerts, vehicle optimisation and maintenance. 

Shortly after the installation process of the new system it came to the attention of the company that the card readers in the newly installed telematics system in five of the vehicles had been, it appeared, intentionally damaged. Following this, on the 27th of March 2018, the director of operations issued a ground information notice (GIN) to all staff, referring to the damage and notifying staff that an investigation would commence. The issue was also raised with SIPTU on the 4th of April 2018 and again on the 2nd of May 2018. 

On the 26th of May 2018, by which time there had been damage to 15 vehicles, management issued a second GIN to all staff working in ground operations. The GIN stated that there had been a continuation at what the Respondent viewed as unlawful activity and specifically the apparent intentional damage to the new system. The notice also advised ground operations staff of the decision to implement CCTV in ground support vehicles and the fact that CCTV will be operating within such vehicles thereafter. As with the previous notice, this notice stated that "any employee who is found following investigation, to have engaged in the deliberate and /or wilful damage of company property will be subject to disciplinary action up to and including dismissal."

A specialist service provider was appointed to install and monitor the CCTV cameras on behalf of the ground operations manager, who is responsible for the ground support vehicle CCTV system. Installation and monitoring were approved by the company's information security steering sub-committee. On the 15th of June 2018, a technician checked the vehicle and noticed that damage to the card reader had occurred and returned the vehicle to the garage to review the CCTV footage through his laptop. After reviewing the footage, he was able to pinpoint the incident to the day prior to the14th of June 2018 at 1:35 a.m. and notified the fleet manager.

Having inspected the vehicle, the card reader was located behind the driver's seat. On receipt of the footage the manager identified the Complainant as the individual who carried out the damage to the vehicle. The Complainant was stood down from duty pending an investigation and this was confirmed him in writing on the 18th of June 2018. In a letter dated 18th June 2018, the employee relations/industrial relations specialist invited the Complainant to an investigation meeting which was confirmed for the 21st June 2018.

Two investigators were appointed to conduct the investigation into the incident. On the 21st of June 2018, the Complainant attended the investigation meeting represented by a SIPTU official and two shop stewards. At the meeting the employee relations specialist showed the Complainant and his representatives a number of images and the CCTV footage. The Complainant and his representatives were afforded the opportunity to review the footage in private.  The Complainant acknowledged that that the individual in the CCTV footage was him. He stated he had been under stress and emotional strain in his personal life.  The investigation meeting was adjourned to give the Complainant an opportunity to reflect and consider what he had seen in the footage and images.

On the 27th of June 2018, a letter was sent to the Complainant enclosing a number of documents and offering him an opportunity to resume the hearing. At the resumed meeting on the 18th of July 2018, the Complainant read out a submission. He acknowledged his actions and put forward that they were not premeditated and that he had absentmindedly caused the damage due to what he believes were extenuating circumstances. The Complainant offered to cover the cost of the repair to the vehicle and stressed that his main priority was to return to work. He said that he was availing of EAP services and introduced a report from his GP stating that he had been under emotional strain over the past 18 months. SIPTU drew the company’s attention to the Complainant’s long service and employment record with the company and character references were submitted on his behalf.

The Investigators completed their investigation and wrote to the Complainant on the 3rd of August 2018 enclosing a copy of the investigation report. The Investigators found that the Complainant knowingly, wilfully and deliberately damage the telematics system and that he failed to provide a satisfactory reason for his actions. The reasons for coming to such a conclusion were set out in the report. The Investigators refer the matter for a disciplinary hearing which was convened on the 13th of August 2018.

It was conducted by the Head of Ground Safety Training and HR specialist. The Complainant was represented by SIPTU and 2 shop stewards. The Complainant fully admitted he had damaged the equipment. He claimed that he was under stress at home which caused the outburst at work. The Complainant apologised and offered to compensate the company for any damage caused. On the 21st of August 2018, the Complainant was furnished with the conclusions of the panel. The panel concluded that the Complainant wilfully and deliberately damaged the telematics system on the 14th of June 2018, that this was a very serious matter and that he failed to provide in a satisfactory explanation for his actions. Considering this finding, the panel decided they had no alternative but to dismiss the Complainant on the grounds of gross misconduct.

The Complainant invoked his right to appeal under the disciplinary policy and set out his grounds of appeal in an email dated 23rd of August 2018. The Head of Group Services was appointed to hear the appeal and convened an appeal hearing on the 6th of September 2018 and the complaint was again represented by his union. The appeal outcome which was issued on 21st of September 2018 which upheld the decision to dismiss the complaint from the employment. It was held that the decision of the disciplinary panel was correct, and the dismissal was appropriate sanction having considered each of the points of appeal. The dismissal was confirmed with effect from the 21st of September 2018. The Complainant was paid his notice entitlement.

Legal Submission

The Respondent’s barrister submitted that the termination of the Complainant’s employment was not unfair. The company is relying on section 6 (4) of the unfair dismissals act 1997 to 2015 and the conduct of the employee. The Respondent’s XX Conduct and Disciplinary Procedures provides for employee conduct which it deems unacceptable. Under the heading “examples of Acts warranting disciplinary action” it states:

“3.2.3 Wilfully damaging XX property or property entrusted to the care of the XX.”

I was referred to section 6 (7) of the Unfair Dismissals Act cited below. It was submitted that the case law makes it clear that in defending an unfair dismissal claim an employer does not need to convince the Adjudication Officer that he/she would have made the same decision to dismiss or indeed that every employer would have done so. What must be shown is that it was reasonable for the employer to have made the decision that it did. In this regard, it was within the band of reasonableness for the employer to dismiss the Complainant and his dismissal was not unfair.

I was referred to the decision of the Circuit Court in Allied Irish Bank's PLC vs Purcell 2012 23 ELR 189 in which Linnane J stated as follows: "the correct test is: Was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered in all of these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view."

Lord Denning MR in the UK court of appeal case of British Leyland UK Ltd vs Swift [1981] IRLR 91.

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

This extract from the judgement was recently cited with approval by the High Court in The Governor and Company of the Bank of Ireland vs James Reilly [2015] IEHC 241.

It was submitted that the company has acted reasonably in accordance with applicable procedures and, in imposing the sanction of dismissal, within the band of reasonableness.

I was referred to section 13 of the Health and Safety and Welfare at Work Act 2005 which outlines the general duties of employees in control of work places.

I was referred to decisions involving the aviation sector.  In Gould vs ICTS Ireland Limited and ICTS UK Ltd UD301/2013, MN154/2013, WT38/2013, the Complainant was employed to carry out security searches on aircraft subject to security guidelines from the Department of Transport and the procedures of individual airlines. Evidence was given to the EAT that the claimant had been trained in the relevant guidelines and was well aware of same.  In holding that the dismissal was not unfair, the EAT noted the responsibilities of the Respondent and the Complainant to ensure adequate safety of air passengers and stated that "higher standards than might otherwise be required must be adhered to in such circumstances."

In Ijusonuwe v Aer Lingus Ltd UD 27/2013, the claimant was dismissed for his breaches of the Respondent’s check-in and security procedures. The EAT was satisfied that the Complainant had received training in respect of the procedures and recognised that the procedures were of paramount importance to the Respondent given the particular industry.

In Airport Security vs Specialised Security Provider ADJ-00016448, the Complainant was working as airport security had breached customs and border protection procedures in assisting a flight attendant who was late for a flight. In dismissing the claim, the Adjudicator Officer said: “the employment function is to render the airport and the flights in and out of the airport secure and safe for all users. The mistake made by the Complainant went to the very core of what is unacceptable in ensuring that security."

In a General Operative v, A Services Company ADJ-00010618 the Complainant was an aircraft cleaner who on finding a mobile phone while cleaning an aircraft inadvertently brought it home at the end of his shift. In and dismissing the claim, the AO stated that: “the Complainant was employed ‘Airside’ at the airport and had access to aircraft. At particularly high standards of honesty and integrity is required in these types of positions.”

It was submittedthese cases are instructive not only because they concerned the same sector as this current case but because the EAT accepted that the decision to dismiss for breaches of procedure and guidelines in each case was fair in all circumstances, noting the special safety and security environment associated with air travel and air operators.

In response to the complaint’s challenge about the admissibility of CCTV footage of the Complainant on the 14th of June 2018, the Respondent submitted it has a CCTV policy in place since 2016. This was updated in 2018 and the policy is located on the staff intranet and is fully compliant with all applicable legislation to include the Data Protection Act 2018 and the General Data Protection Regulation 2018.

The policy makes general provision for the use of CCTV within the company and specifies the circumstances where such footage may always be obtained subject to the principles of proportionality and of data protection. Section 2(f) sets out a process of approval within which must be followed for the installation of new CCTV cameras. The required approval from the Information Security Steering Committee was obtained prior to the installation of CCTV in ground operation vehicles. The intention to install CCTV in vehicles was highlighted to the union and was referred to the ground information notices on the staff portal on the 26th of May 2018.

It was submitted that the company reserves the right to rely on CCTV footage that clearly demonstrates wrongdoing/misconduct on the part of one of its employees, footage which has been accepted by the Complainant and his Union. The installation of concealed cameras was notified to staff and unions in the GIN notice of the 26th of May 2018 on foot of repeated deliberate damage to the telematics on the vehicles over a number of months. The Respondent is entitled to have regard to this footage in the context of this matter and are entitled to rely on it as per the policy which provides that the CCTV systems may also be used to assist investigations carried out under the Respondents conduct and disciplinary policy.

It was submitted that the Complainant was party to a detailed investigation, disciplinary and an appeal process and he was represented by his union official and shop stewards. Independent managers were appointed to the disciplinary and appeal hearing and considered this matter carefully and all the submissions put forward by the Complainant and on his behalf were also considered. The process was fair and considered. The company complies fully with its processes and the rules of natural justice. The Respondent is satisfied that the findings of gross misconduct are appropriate and reasonable in all the circumstances. The Complainant was aware of his responsibilities and the consequences of his actions. He destroyed the essential bond of trust and confidence that the Respondent was required to have him in order to continue his role and in those circumstances, it was reasonable for the Respondent to dismissed him.

The Complainant said that he had worked for the company for 20 years and he was never in trouble before. He accepted in evidence that he was the person in the company vehicle on the CCTV who damaged the telematics. He said that he was under stress as he is a parent to a new born baby and his wife was ill. On that particular evening and he had an argument with his wife just before he got into the vehicle and also, he had other stresses in his life including being involved in an accident where his best friend died. He said that he attended the EAP for a number of sessions. He said that these factors were not taken into account in the investigation or the disciplinary hearing.

The Complainant that he had an unblemished work record with the Respondent up to the events of June 2018 when he was dismissed from his employment. On the 15th of June 2018, the Complainant reported for work as usual and he was called to the office by supervisor and told that he was to leave work and return home because of an incident.

The supervisor did not provide the Complainant with any further information despite enquiries from him and he was not given any details of allegations against him. He was contacted on the 18th of June 2018 and informed that he had been identified on CCTV cameras damaging equipment installed by the Respondent company. By letter dated 18th of June 2018, the Complainant was invited to an investigation meeting with the company. In the investigation meeting, which took place on the 21st of June 2018, the Complainant was shocked to be presented with the footage because he had no recollection of the event and not been presented with it before the meeting.  The meeting was adjourned. During a telephone call with the Complainant the Respondent informed him that he could not avail of the staff travel scheme, even though an investigation was only pending. Further comments were made to him which indicated that the Respondent had prejudged the investigation.

The Complainant had been under severe personal stress at the time of the incident owing to number of matters which had arisen in his personal life. He obtained a letter from his GP and provided it to the investigators. He also attended the staff counsellor in the Respondent company where he underwent therapy sessions. The Complainant discussed with his counsellor the provision of a report regarding his condition to the investigation panel and the counsellor was agreeable to this. He also offered to provide this report to the investigation panel or to otherwise consent to communication between them and his counsellor regarding his condition.

The Complainant attended a second investigation meeting on the 17th of July 2018. At this meeting he gave a full account of the stress health difficulties that he had been enduring because of various matters that had arisen in his personal life. He made the investigators fully aware of these matters and indeed made them aware that he had a heated argument with his wife over the phone shortly before the incident captured on CCTV. Despite these representations, no account was taken of these matters and their potential impact on the Complainant’s mental state of his actions. No attempt appears to have been made by the investigators to properly assess his mental state or the extent to which his actions were informed by his condition.

The Complainant raised concerns regarding the use of covert CCTV evidence as part of the investigation and the non-compliance by the Respondent with his own CCTV policy.

It was submitted that the Respondent in carrying out the investigation failed to have regard to fair procedures, appointed investigators who had already formed opinions on the Complainants actions, failed to fully inform the Complainant in detail of the matters which he was accused of and to allow him to comment, failed to conduct the investigation in an impartial manner and failed to get evidence which would tend to exonerate the Complainant and focused exclusively on evidence which tended to implicate the Complainant, failed to allow the Complainant to explain the alleged misconduct and wrongly took into account other incidents where company property had been damage in circumstances where there was no evidence that Complainant been involved in these incidents. The investigation concluded and recommended a disciplinary hearing and this hearing convened on the 13th of August 2018. 

It was conducted by the Head of Ground Safety and a Human Resource specialist. The Union submitted that the disciplinary hearing failed to adhere to fair procedures and natural justice, failed to fully inform the Complainant of all the matters which formed the basis of the disciplinary process, failed to allow the Complainant an opportunity to fully respond to the allegations, relied on improperly obtained CCTV evidence and failed to have any regard to the Complainant’s explanations that his actions were the result of stress which has arisen as a result of matters ongoing in his personal life. The conclusion of the disciplinary hearing was that the Complainant should be dismissed for gross misconduct.

The Complainant appealed this decision and the appeal hearing was on the 6th of September 2018. It was submitted that during the appeal the Respondent failed to adhere to the principles of natural justice and fair procedures, failed to have any regard for the failures of the investigation and the subsequent disciplinary hearing, failed to have any regard to the explanation offered by the Complainant about the allegations against him, failed to have regard for the Complainant submissions and the stresses in his personal life, relied on improperly obtained CCTV evidence and failed to act reasonably and proportionately. The Complainant’s dismissal was confirmed following the appeal hearing.

Legal Submission

It was submitted that the Unfair Dismissals Act places a heavy burden on the employer to demonstrate that the procedures used in arriving at a decision to dismiss were fair and reasonable. In Dunnes vs Harrington UD166/1979, the EAT outlined the obligations of an employer in this regard. It stated that an employer should: "(a) personally in a fair and reasonable manner, i.e. as fully as is reasonably possible, confronting the "suspected" employee with "evidence", checking on and giving fair value to the employee's explanation or comments and allowing the employee to be represented at all such meetings/confrontations if the employee request it or union management/ agreement requires it and produce “counter evidence” or he may:

(b) rely on the reports of others. If he does so without confronting the accused employee with the contents of the same, without hearing, investigating and giving value to his replies, giving him reasonable opportunity to produce rebutting "evidence", and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice, viz, that other party (i.e., the employee in these circumstances) should be heard. In short, an employer acting on the reports of third parties and not acquainting the employee with same does so at his pearl if it results in the dismissal of that employee."

It was submitted that the failure of the Respondent to conduct an independent, impartial and robust, investigation process represents a failure to adhere to the standards set out by the EAT in Dunne.

It was submitted that the content of the various investigation and disciplinary meetings made clear that the Respondent was not acting impartially and did not discharge its obligations to consider and examine the matters put forward by the Complainant. In particular, there was a failure by the Respondent to examine the explanations given by the Complainant regarding the stressed state he was in at the time of the incident and the impact that his health may have had on his actions.

The Complainant’s submission in this regard were treated in a dismissive way by the investigation, disciplinary hearing and appeal process.

It was submitted that the failure of the Respondent to seek out further CCTV evidence or consider medical evidence represented a failure by them to discharge the burden described by the EAT Dunne. The evidence, in particular the CCTV evidence, relied on by the investigators could not sustain the findings made by the investigators. The Complainant was suspended from his employment on the 15th of June 2018. No reason was given for the suspension and during the currency of the suspension he had certain privileges such as travel removed.

In Bank of Ireland vs Reilly [2015] IEHC, the High Court held that suspension must be a measure used sparingly and only when absolutely necessary. In that case Noonan J. set out the concerns the Court had with the use of suspension as a measure in investigations. The Court stated: "The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant damage on the employee’s record with consequences for his or her future career. As noted by Kearns J. (as he then was) in Morgan vs Trinity College Dublin 2003 3 I. R. 157, there are two types of suspension, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire. Mr Reilly's case, his evidence that rumours and reports circulated about him ranging from possibly being involved in fraud to participation in a tiger kidnapping.

Thus, even a holding suspension ought not to be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a reputation of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process."

It is submitted that the Respondent’s actions in suspending the Complainant during the currency of this investigation was unwarranted and unnecessary and amounted to denial of fair procedures to the Complainant and hampered him in the preparation of his defence. It was submitted that the Respondent conducted its internal investigation, disciplinary hearing and appeal in a manner which was unfair to the Complainant and failed to have regard to his poor health and fragile mental state.

The use of covert CCTV is prima facie a breach of the employee's rights under the Data Protection Act 2018 and the GDPR. It is only in limited circumstances that an employer can justify the use of material which has been obtained covertly. I was referred to case study 6/2007 of the Data Protection Commissioner which concerned covert CCTV cameras and where the Commissioner determined that obtaining personal data through covert CCTV cameras without the persons knowledge is generally unlawful. It was submitted that the implications of the findings of the Data Protection Commissioner was that covert material may only be used in circumstances where a criminal conduct is alleged and is being investigated. There is no suggestion in the Complainant’s case that the Respondent provided the CCTV evidence to the Gardai or that this evidence was collected as part of a criminal investigation. The Respondent obtained the CCTV evidence in the within case in a manner which was unfair, and which was not compliant with its own policies or the legislation.

It was submitted that an employer must act in a proportionate manner in considering what sanction to impose on an employee. In light of the above matters raised by the Complainant during the disciplinary process, as well as his long work record with the Respondent, the decision to dismiss him was wholly unfair and disproportionate.

It was submitted that the workplace investigation carried out by the Respondent organisation was biased and prejudged and carried out with the sole aim of enhancing the case against the Complainant. 

In Zambra vs Duffy UD154/1978, the EAT confirmed that the investigation of wrongdoing must be carried out promptly in order to give effect to the requirements of natural justice and fair procedures. In Preston vs Standard Piping Limited 1999 ELR 233 it was made clear that it was necessary that an investigation be conducted in a complete fashion. in Kelly vs An Post UD 974/1986, the EAT made clear that it is necessary that an investigation seek out evidence which exonerates as well as tends towards guilt in order to meet the requirements of fair procedures and natural justice. The Complainant is seeking a decision that he was unfairly dismissed and is seeking compensation.

The Respondent stated that the Complainant was dismissed for damaging company which constituted gross misconduct as per their disciplinary procedures. It was submitted that they acted reasonably and fairly in accordance with section 6(7) of the UD Act.

Section 6 of the Unfair Dismissals Act 1977 as amended provides inter alia as follows:

“(1) 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 all the circumstances, there were substantial grounds justifying the dismissal.”

Subsection (4)(b) provides that: “the dismissal of an employee will not be unfair if it results wholly or mainly from inter alia the conduct of the employee”.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(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 or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section7 (2) of this Act.

Therefore, the burden of proof rests with the Respondent to demonstrate the dismissal was neither substantially nor procedurally unfair.

The Complainant accepted the CCTV evidence. He pleaded that he was under stress when he damaged the telematics and that this fact was not considered by the Respondent as mitigation for his actions. I do not consider that there were any mitigating factors for his actions. If the Complainant was under such stress on the night in question, he should have reported this to his supervisor and got assistance to deal with it. It is astonishing that the Complainant considered that damaging the company’s property was an acceptable stress relieving action. It is inconceivable for the Complainant to argue that he did not know that CCTV cameras were in operation in the airside security area where he worked nor that he was not on notice that CCTV cameras would be installed on ground operation vehicles because of the deliberate damage to the telematics system recently installed in these vehicles. It is a fundamental implied term of a contract of employment that an employee does not deliberately or wilfully damage their employer’s property. In relation to the claim that the CCTV evidence was collected in a covert or illegal manner, I am obliged to point out that I have no statutory function to consider any matters relating to the Data Protection legislation, such as the installation of CCTV cameras or the use of such footage as evidence of wrongdoing in disciplinary hearings.

However, it is not my function to determine if the dismissal was the correct sanction, but to determine if the sanction of dismissal came within the “band of reasonableness” cited in the above referenced cases. I am guided by the jurisprudence of the High Court in the case of Bank of Ireland and the other decisions cited above. In all the circumstances of this case, I find that the actions of the Respondent in dismissing the Complainant for gross misconduct were within the range of reasonable responses open to it and that substantial grounds did exist to justify the Complainant’s dismissal. I am satisfied, that the manner in which the Respondent conducted the investigation, disciplinary hearing and appeal hearing in this case fully complied with the company’s Disciplinary and Grievance procedures and with fair procedures and natural justice. The Complainant represented at each stage of the process and he was given a copy of the CCTV footage and given an opportunity to respond to the allegations made against him. I am satisfied that fair procedures were applied by the Respondent.

I find that there were substantial grounds justifying the dismissal and that dismissal was neither substantially or procedurally unfair. Accordingly, I find that the Complainant was not unfairly dismissed by the Respondent contrary to Section 6 of the UD Acts.

I find that the Complainant was not unfairly dismissed

Unfair Dismissals Act 1977 -2015, gross misconduct, CCTV footage