Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Company

Representatives

N/A 

Graham Bailey IBEC

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-00036335-001

24/05/2020

The complainant came to Ireland from Romania in 2016. He worked as a cleaner for a year and in September 2017, he got a job with the respondent as a security officer. At the time of his dismissal, on May 18th 2020, he was stationed at the gate office of a multinational technology company. He was contracted to work 48 hours each week. At the hearing, he said that he generally worked up to 60 hours a week. A revenue summary of his earnings for 2019 shows that he earned €45,886 gross that year.

On April 22nd 2020, using his mobile phone and the guest WIFI of the company to which he was assigned, the complainant sent a video to a group using Facebook’s private messenger facility. There were seven or eight people in the group, including some work colleagues and the complainant’s brother and cousins. The video that the complainant attempted to send was blocked by Facebook and his account was suspended for three days.

On April 30th, the client company informed the complainant and the respondent’s HR manager that the video he attempted to share contained an image of child exploitation. They said that they reported the incident to the Gardaí and they recommended that the complainant be removed from his role as a security officer on their premises.   Following the meeting, the complainant was suspended pending an investigation into the sending of the video.  

Although he was advised of his right to be represented, the complainant attended an investigation meeting on May 6th on his own. The meeting was hosted by the HR manager and, due to the Covid 19 restrictions, it was conducted remotely by video. The complainant accepted that he had attempted to send the video.   He said that he was ashamed about what had happened and that he had left the group. The note of the meeting shows that the complainant said that he read the company’s social media policies. Following the investigation meeting, the HR manager recommended that the disciplinary procedure be invoked.

The correspondence submitted in evidence indicates that the complainant consulted a solicitor, but he attended the disciplinary meeting on May 14th again without representation. This meeting was also held by video conference. Responding to questions from the HR director, the complainant said that he couldn’t remember who set up the group, and that it wasn’t an internal work group, although some work colleagues were members. The note of the disciplinary meeting shows that the complainant accepted that the content of the video he attempted to share on April 22nd was sexual and that it depicted a naked female. He said that he thought that the female in the video was “the legal age,” but he said that he didn’t watch the full video.

When he was asked about the company’s policies regarding the sharing of pornographic content, the complainant said that he couldn’t remember the training he received, but that he heard from his colleagues that it wasn’t allowed.

Having conducted an investigation into the complainant’s conduct, the respondent decided that his explanations were not reasonable or sufficient to mitigate “the extreme seriousness and far-reaching implications of his actions.” It is the respondent’s case that the complainant’s behaviour on April 22nd 2020 amounted to gross misconduct and he was dismissed on May 18th 2020.

The complainant submitted that he had been a good employee up to April 22nd 2020 and that he had done every shift that he was asked to do. He said that, when he was dismissed, “the nightmare started,” his relationship with his wife deteriorated, he felt lost and all his plans were ruined. He argues that the decision to dismiss him was too severe and that he could have been transferred to a different site.

In relation to the sanction of dismissal, for the respondent, Mr Bailey referred to the case at the Employment Appeals Tribunal (EAT) in 1984 of Looney & Company v Looney, UD 843/1984. Finding against the claimant in this case, the chairman stated:

“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in the investigation, or concluded as he did or decided as he did, as to do so would substitute our mind for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

Mr Bailey said that the respondent’s case is that a “reasonable employer in the same position and circumstances” would have reached the same decision as the respondent in this case.

The respondent argues that the complainant’s actions destroyed the company’s trust and confidence in him and made the continuation of his employment impossible. Mr Bailey referred to the outcome of Moore v Knox Hotel and Resort Ltd, UD27/2004, where the Tribunal found that the claimant’s actions,

“…destroyed the respondent’s trust and confidence …and rendered the continuation of the employment relationship impossible, thereby justifying her dismissal.”

The respondent is satisfied that, in respect of the procedures that led to his dismissal, the complainant was treated fairly and in accordance with the WRC Code of Practice on Grievance and Disciplinary Procedures set out in Statutory Instrument 146 of 2000 (SI 146/2000). The complainant was informed in advance of the nature of the allegation against him, he was advised of his right to be represented and he attended what Mr Bailey described as “fair and impartial hearings” at which he was given an opportunity to respond to the allegations. Although the investigating manager was not shown the video that that the complainant attempted to send to the members of the Facebook group, Mr Bailey submitted that the entirety of the evidence was considered, including what the complainant said in response to the allegations. The complainant was advised of his right to appeal, which he did not exercise. The respondent believes that, substantively and procedurally, the dismissal of the complainant was fair in all respects.

Concluding the respondent’s submission, Mr Bailey referred to the EAT case of Murray v Meath County Council, UD43/1978, where, because of his inappropriate conduct, the Tribunal made no award of redress to Mr Murray.

At the opening of the hearing, the complainant submitted a booklet of documentation. He gave evidence regarding the incident on the evening of April 22nd 2020 and its aftermath and his wife made a statement on his behalf in which she outlined the effect of her husband’s dismissal on them.

In the three years he was employed by the respondent, the complainant said that he worked hard, improved his English and learned a lot from colleagues and management. He said that 90% of the time, he worked extra shifts and never said “no” to any work. Up to the termination of his employment, the site supervisors and management were very happy with how he was doing his job.   He said that he regarded the company as his second family.

Referring to the investigation into the sending of the video on April 22nd 2020, the complainant said that he thinks that the company over-reacted because no information about the company or his conduct at work was shared. He said that the Messenger group was private, “created for fun purposes and nothing related to work.”

During the course of his employment, the complainant said that he was never provided with a copy of the company’s internet and social media policy or a copy of the disciplinary procedures. He claims that it is insufficient to provide him with copies of the policies after the incident.

In the written submission that he presented at the hearing, the complainant referred to a number of precedents that he identified that are relevant to his case. He claims that the outcome from these precedents support his contention that the decision to terminate his employment as a result of the sending of the video on April 22nd was unfair. I have been able to locate four of the five cases that he cited:

ADJ-00020709: A Complainant v An Employer

The complainant in this case was company’s the head of sales operations. He was member of a WhatsApp group that disseminated “unacceptable and improper” content between the members, all of whom were dismissed.   The adjudicator found that there were procedural defects in the investigation of the complainant’s conduct which made his dismissal unfair.

UDD 202: RCI Call Centre (Ireland) Limited and Ibrahim Salah

The Labour Court found that the procedures that resulted in the dismissal of Mr Salah were conducted without proper consideration of all the evidence and were unfair. It also found that no consideration was given to a sanction short of dismissal.

ADJ-00020363: A Vice President v a Professional, Scientific and Technical Company

The adjudicator in this case decided that the dismissal of this senior manager was unfair, based on the fact that no procedures were followed and he was dismissed in a telephone call.

UD1098/2012: A Marketing Assistant v A Wholesale Electrical Company

The complainant in this case was dismissed for over-use of social media on her computer at work.   The EAT found that, in terminating her employment, the employer did not follow any procedures and her dismissal was found to be unfair.

Concluding his submission, the complainant said that he regretted what happened and that he is not proud of what he did. He said, “from my point of view, what I did was bad, but the punishment is too severe.”   He said that he could have been removed from the client’s site. He said that he didn’t mean to harm anybody and that he made a mistake. The complainant’s wife gave evidence about the effect that this incident and her husband’s dismissal has had on them. She said that he isn’t the person that people might think he is from this one incident. When he was dismissed, the complainant’s wife said that they lost their mortgage approval, because the only job that he could get was with a waste collection company on a lower salary.

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

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

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant. On behalf of the respondent, Mr Bailey referred to Section 6(4)(b) of the 1977 Act which provides that;

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

The conduct that resulted the complainant’s dismissal is his use of the WIFI in the gate house where he was a security officer and his sending of a video containing content that was in violation of Facebook’s policy on child exploitation.   Following an investigation and a disciplinary hearing, the respondent concluded that his actions amounted to “gross misconduct and a grave breach of discipline.”

The letter of dismissal of May 18th 2020 sets out the findings of the disciplinary investigation and the conclusion of the chief operations officer with regard to the complainant’s conduct:

1.              He was the first line of security at the client company’s gatehouse and his full attention was required to ensure no security breaches took place.

2.              The content of the video that the complainant attempted to send to colleagues was in violation of Facebook’s policy on child exploitation imagery. His attempt to share the video was reported to the Gardaí.

The chief operations officer concluded that the complainant’s failure to adhere to the respondent’s internet policies demonstrated a breach of trust and confidence, explaining that,

“We are unable to understand how a security professional in our team could try and share something so serious that it is alerted to law enforcement and by so doing could bring our reputation and the relationship with our client into jeopardy.”

In summary therefore, the complainant was dismissed because he did not give his full attention to his job on the evening of April 22nd 2020 and, by attempting to share a video containing an image of child exploitation, he brought the reputation of his employer into disrepute.

I note that Section 12 (5) (1) (b) of the Criminal Law (Sexual Offences) Act 2017 provides that a person who, “knowingly distributes, transmits, disseminates, prints or publishes any child pornography…” shall be guilty of an offence and liable to a fine or imprisonment.

Was the Decision to Dismiss Reasonable and in Proportion to the Conduct?

On behalf of the respondent, Mr Bailey referred to the seminal precedent of Looney v Looney and the requirement for me, as the adjudicator, to consider what a reasonable employer might do in similar circumstances.   This guidance has been adopted in subsequent precedents, (Allied Irish Banks plc v Purcell[2012] 23 ELR 189, Samuel J Frizelle v New Ross Credit Union Limited [1997] IEHC 137 and The Governor and the Company of Bank of Ireland v James Reilly [2015] IEHC 241). Considering these authorities, I understand that my task is to determine if it was reasonable for the respondent to conclude that the complainant’s behaviour on the night of April 22nd 2020 amounted to gross misconduct and if dismissal was a reasonable sanction.

The complainant’s contract of employment provides that,

“You will be required to devote your full attention and abilities to your duties in the service of the Customer and in the best interest of the Company at all times during your working hours.”

It appears that the complainant generally worked five 12-hour shifts a week and on April 22nd 2020, he was working a night shift, starting at 6.30pm. In his submission, he said that on the night in question, he did not leave the gatehouse to take his break because it has a kitchen. His job involves monitoring cameras and radio communication. He said that during the night there is very low activity, so he could take his breaks any time. No evidence was presented at the hearing that indicates that the complainant spent an inordinate amount of time on his phone during his shift, or that he neglected his security duties or caused a risk at the client’s site.

From the evidence submitted at the hearing, I note that four of the complainant’s work colleagues were interviewed about their membership of the Facebook Messenger group and the content that passed between them. Notes of interviews with two of his colleagues on May 7th show that they shared or viewed content, which they variously described as funny, violent and pornographic. A few days after the interviews, these two employees were informed that the investigation into their conduct was closed and that no further action would be taken.   Based on the fact that no disciplinary action was taken regarding the conduct of these employees, I must assume that the reason the complainant was treated differently is because the video he attempted to share contained an image of child exploitation, an illegal act which drew the unfavourable attention of the respondent’s client.

A significant amount of internet content is described as “adult” or pornography. Research published in 2016 indicates that there are about 4 million adult websites on the internet, comprising 12% of all sites.*   We know the risks that this presents for children, but there is scant appreciation of the vulnerability of adult men to the mechanics of internet porn. Websites are designed to “hook” the user so that they become exposed, not just to the content, but to the advertising by which the social media companies make their money. An analysis of how this works is beyond the scope of this document and outside my competence; however, it is apparent to me that in the competition for “advertising hits,” the technology will generally outwit the user.

The complainant was part of a group that shared “stuff.” On the night in question, he said that he made a mistake when he attempted to share an image that breached Facebook’s policy on child exploitation.   He said that he was sent the video by a friend and that he didn’t check it before he tried to send it on.   He said that he thought the female in the video was “the legal age.” At that stage, he had been employed by the company for almost three years, and there was no evidence that he accessed child pornography before.   I do not condone what the complainant did; however, I think some weight must be given to the fact that, prior to April 22nd 2020, there is no evidence that he tried to share an illegal image. It is also my view that some consideration should have been given to the possibility that, on the night in question, he made a mistake.

I note that, as part of his induction in September 2016, the complainant attended training on the use of the client’s WIFI. Mr Bailey also pointed to the training that he attended in September 2018 on the company’s social media and internet use policies. The complainant said that he became a member of the Facebook Messenger group after he joined the company, although he didn’t say if the group owner was an employee or someone outside. Based on the notes of the interviews with his colleagues, and their frank admission regarding the content they shared, it is apparent that there was a contradiction between the instructions given during the training on internet use, and the behaviours of the participants in the Facebook group.    

No details of the content of the September 2018 training was submitted in evidence, apart from a checklist of the employees who were present. A copy of the respondent’s internet use policy was submitted and it is apparent that this is intended for employees who are users of the company’s computers.   There is no mention of internet use on personally owned devices or the dangers of accessing adult content.   The policy is written for a relatively sophisticated reader, and certainly not for a person for whom English is not their first language. When this was raised at the hearing, the HR director said that the complainant could have asked for a translation of the policy; however, it is my view that action in this regard must be the prerogative of the employer and not the employee.

It strikes me that as a company employing mostly male security officers, who often work alone and isolated for long hours, there is a responsibility on the management to do more than a “tick box” exercise in relation to social media training and specifically the impact of pornography and child pornography. This might go some way to avoid the misery on both sides of the screen. The complainant described what happened after he was dismissed:

“But after (the respondent) fired me, the nightmare started for me and my family. We applied to buy a house here because we planned to have a child and we lost the mortgage approval, my relation with my wife became very deteriorate and the weeks after I lost my job, I felt lost and all my plans were ruined (sic).”  

I am mindful of the five principles set out by Mr Justice Flood in the High Court in the case of Samuel Frizelle v New Ross Credit Union [1997] IEHC 137, and specifically, the exhortation that,

“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 of the effect of the dismissal on the employee.”

While It is apparent that the respondent was concerned that the complainant’s action “could bring our reputation and the relationship with our client into jeopardy,” it seems to me that little or no consideration was given to the effect on him of being dismissed in these circumstances.

I accept that the complainant’s conduct on the night of April 22nd was extremely serious and may possibly be found to be a criminal offence. It may appear logical to equate such serious and possibly criminal behaviour with “gross misconduct,” but it seems to me that this is too expeditious. The potentially criminal behaviour was not directed at the employer and I find that, apart from this incident, the complainant was an exemplary worker, with a sense of gratitude for his job and with no motivation whatsoever to harm his employer. In a letter to the HR manager after he was dismissed, he wrote:

“It’s very hard for me to get this news, specially now on this difficult times. I admit my fault and I feel very sorry for what I did, probably I didn’t understand enough how media works. It’s a stupid mistake that I am aware of it, and also a tough lesson for me, from which I will suffer, me and my family. Please accept my apologies for putting (the company’s) image into this, there are no words to show my gratitude for the company, who always looked after me as an employee (sic).”

Returning again to the Frizelle decision and the fourth of Mr Justice Flood’s principles that,

“The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in light of the explanation offered.”

On the balance of probabilities, it is my view that the respondent should have accepted the complainant’s explanation that he made a mistake by attempting to share the video which contained an image of child pornography. I think that a more appropriate sanction would have been a final written warning and a transfer to a different site.

Was the Process Fair?

Having reached this conclusion, I do not intend to lengthen this decision unnecessarily with a detailed analysis of the process that resulted in the complainant’s dismissal.   I will summarise briefly my finding that the process was also unfair.

I am concerned about the fact that the respondent’s HR team carried out an investigation that had the possibility of ending with the complainant’s dismissal, without pointing out to him why the disciplinary procedure includes the right of employees to be represented. I accept that at each of the meetings he attended with the HR and operations managers, the complainant declined the option of representation. I mentioned earlier that he is a foreign national and English is not his first language. The process was cumbersome because, due to Covid restrictions, the meetings were conducted on video and not in person.  

I note from the complainant’s contract of employment that it is compulsory for employees to be members of SIPTU. Under the heading of “Serious Misconduct,” the disciplinary procedure provides that,

“In all such cases Employees will be formally advised of their right to Union representation and afforded an opportunity of procuring same (or otherwise formally forgoing same) at all stages of the process. No decision as to a disciplinary penalty will be taken pending consideration of any representation made by or on behalf of the Employee.”

As one of the principles of natural justice, the right to representation is intended to establish some equality between the resources of the employer and the employee during the disciplinary process.

In the case at the Supreme Court of Burns v Governor of Castlerea Prison [2009] IESC 33, Mr Justice Geoghegan addressed the right of an employee, in exceptional circumstances, to be legally represented. While, in the case under consideration, we are not dealing with legal representation, it seems to me that, while it may not have been unfair for the complainant to be unrepresented, it would have been fairer if he had been. According to Mr Justice Geoghegan in the Burns case, the right of an employee to be represented must be considered in light of:

1. The seriousness of the case and of the potential penalty;

2. Whether any points of law are likely to arise;

3. The capacity of the person to present his own case;

4. Procedural difficulties;

5. The need for reasonable speed in making the adjudication, that being an important consideration;

6. The need for fairness as between the parties.

Due to the seriousness of the allegations against him, his lack of capacity to present his own case and the need for fairness, it would not have been unreasonable for the managers to ask a union official to speak to the complainant to discuss the benefit of representation. It is my view that the intervention of a skilled representative would have contributed to a different outcome that the one that ensued.

The complainant did not appeal against the respondent’s decision to dismiss him, a factor sometimes considered to weaken a complaint to the WRC. If he had been represented, I think it is more likely that he would have submitted an appeal. As he had attended three meetings on his own, and the end result was the termination of his employment, I can see why he saw no point in an appeal.

Conclusion

I have concluded that the decision of the respondent to dismiss the complainant was too severe and that a more reasonable sanction would have been a final written warning and his transfer to a different client’s site. I also find that it was unfair for the respondent to conduct the investigation meeting and the disciplinary hearing without making a more robust effort to explain to the complainant the benefit of being represented.   For these reasons, I find that the dismissal of the complainant was unfair.

* 2016 IEEE (US Institute of Electronic and Electrical Engineers) 36th International Conference on Distributed Computing Systems

I have concluded that the dismissal of the complainant was unfair. Although he has selected compensation as his preferred form of redress, it is my view that in the circumstances in which he was dismissed, compensation is not appropriate. I decide that the complainant is to be issued with a final written warning in accordance with the respondent’s disciplinary procedure and re-engaged on or before December 17th 2020. The period of seven months from the date of his dismissal is to be considered as unpaid suspension.

Dismissal, gross misconduct, proportionality of sanction