Complainant

Respondent

Parties

Frank  Berman

Go-ahead Transport Services (Dublin) Limited

Representatives

SIPTU

 Stratis Consulting

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-00036238-001

19/05/2020

Frank Berman, the complainant was employed as a bus driver from December 3rd, 2018, until his employment was terminated on March 4th, 2020.

He was employed on a 39-hour working week for which he received €591.60 per week.

He complains that he was unfairly dismissed.

A complaint was made by a member of the public about the complainant. As part of the investigation of the complaint CCTV footage revealed, as a separate issue, him using his mobile phone while driving the bus on January 14th, 2020.

The use of a mobile phone while in control of a bus is strictly forbidden and is considered to be gross misconduct. Based on the CCTV evidence the company implemented the disciplinary policy.

The complainant was invited to a disciplinary hearing and the allegation of using a mobile phone while driving the bus was specified in the invitation letter, as was the gravity of the allegation as gross misconduct.

The disciplinary hearing took place on March 4th and was conducted by the Operations Manager and the HR business partner.

The complainant could be clearly seen using his mobile on the CCTV footage. The facts were not disputed.

Following a fifteen-minute recess to consider the matter, the decision was that his employment would be terminated as GoAhead Ireland has a ‘zero tolerance’ policy regarding use of mobile phones while in charge of a bus.

The complainant appealed the decision, and the appeal hearing took place on March 25th.

The use of the mobile phone was not disputed during the appeal and the entire focus was on procedural issues. The outcome was confirmed in writing on April 1st by the Head of Operations.

The complainant has raised several objections to the process, including that that the company failed to conduct a face-to-face investigation before moving to a formal hearing.

The CCTV footage showing use of mobile phone while driving the bus formed part of the customer

complaint investigation and the facts were undisputed. The disciplinary hearing provided the complainant with an opportunity to respond to the charges and to present any other defences he wished.

He also alleged that that he had not been notified of the CCTV policy. But it was shown that this policy was covered during his induction, and he signed confirming he had received and read it.

He has said that the use of CCTV was in breach of his rights under GDPR, but the policy was known to him, and this was a legitimate reason for processing it.

He also argued that he had not been properly notified of the charges against him and the seriousness with which they were viewed.  The invitation to the disciplinary hearing clearly stated the charges as “use of mobile phone” and that these could constitute gross misconduct.

He has said that the decision was not properly considered.

The company adjourned to consider its decision. The facts were undisputed, and no mitigation was presented. Therefore, it was reasonable to issue the decision on the day after an appropriate break.

There are two key questions the company needs to answer to defend the dismissal as being fair.  

First, is the decision to dismiss a bus driver for use of a mobile phone whist in control of the cab of a bus sufficient justification to warrant summary dismissal? Is this within the range of options that a reasonable employer would apply?

Irish law prohibits the use of mobile phones while in control of a motor vehicle. The company takes issues of health and safety very seriously. A bus driver is responsible for the safety of passengers and the public generally. Any accident involving a bus could have the most serious consequences.

The contract of employment and the policy on use of mobile phones could not be clearer and the complainant was fully aware of this and knew the consequences of breaking this rule.

Secondly, did the company follow proper procedures as set out in in its own policy and consistent with the standards set out in S.I. 146?

At all stages the company was very clear as to the charges and the seriousness with which they were viewed.

Advance notice was given, and an opportunity provided to prepare in advance. He was represented, and an opportunity given to put forward any mitigating circumstances or other defences as considered relevant.

An appeal against the decision was provided for and another independent manager heard the appeal.

Was the company entitled to use CCTV footage where it clearly demonstrated a breach of law and of company policy?

The policy was known to him, and this was a legitimate reason for processing it. As an employer we had a legitimate interest to justify the processing of the CCTV footage in question, the processing of this was necessary for the realisation of legitimate interests, and as such the interest prevailed over the rights of the subject.

Furthermore, all processing was within the framework of the companies Data Protection and CCTV policies. All buses carry mandatory signage advising that CCTV monitoring is in operation.

The complainant admitted that he knew this but said this was to ensure passenger and staff safety, for investigations and to protect GIA property.

The use of CCTV on company vehicles is also specified in the company Handbook. The Company’s CCTV policy outlines amongst other items, that CCTV can be used for incident investigation and employee conduct and used as evidence, if necessary, as part of investigations in accordance with the Company’s Performance and Conduct Guidelines.

The complainant did not dispute that he had used a mobile phone or claim that the punishment was too severe. Nor did he claim that he was not afforded his rights under natural justice. Instead, his only response was to argue procedural technicalities.

The use of mobile phone while in control of the cab of a bus is strictly forbidden and clearly classified as gross misconduct. The complainant acknowledged and accepted that he used his mobile phone on the day in question.

The procedures used by the company are in compliance with natural justice, S.I. 146 and company procedure.

In view of all of the above the company has fulfilled its obligations to demonstrate that the dismissal was not unfair.

The complainant worked with Go Ahead Ireland for more than two years, from December 3rd, 2018, until he was dismissed from his position on March 4th, 2020.

The initial investigation meeting took place on the 7th of February and the complainant was represented at that meeting by SIPTU.

Initially the interview focussed on a different complaint. However, the respondent then began to question the complainant about a different matter on the CCTV footage which had occurred an houraftertheincident which gave rise to the meeting.

This footage apparently showed him using a mobile phone while driving.

The union objected to the company scanning through CCTV footage without cause and also said to the fact that the complainant had not made aware of this allegation of phone usage before the meeting began started. 

The meeting was adjourned so that the respondent could respond and re-convened on February 14th

The outcome of the investigation was that “based on the evidence supplied during the investigation process, that the initial complaint is therefore unfounded. However, during the investigation process, the CCTV footage has revealed mobile phone usage whilst driving a company vehicle”.

A letter was issued on February 26th, instructing the complainant to attend a Disciplinary Hearing on March 4th to answer a case of Gross Misconduct, viz: “mobile phone usage while driving a company vehicle on Tuesday 14th January 2020”.

No minutes of this meeting were issued, but the union made a submission in relation to the use of CCTV footage, in particular, referring to Article 5 of Data Protection Principles, that personal data shall be:

             processed lawfully, fairly and in a transparent manner in relation to the data subject

              (‘lawfulness, fairness and transparency’).

  collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes

The union highlighted that the company did not have a CCTV policy stating that it could be used in disciplinary hearings and if there was such a policy, it had not been communicated to the employees. He requested that the charges be struck out and that the company cease using CCTV in disciplinary hearings.

It was argued that even if there had been a clearly defined policy, the investigators would have had no justification for requesting the additional footage which had no relevance to the initial alleged complaint.

A further breach of Data Protection principles was that that the vehicle Mr. Berman was driving on the day of the incident had no signage indicating that CCTV was in operation.

Despite these submissions the respondent dismissed the complainant without notice, at the meeting on the March 4th.

The primary justification for his dismissal, in a letter not received until March 17th was that “use of mobile phone in the cab is a breach of Go-Ahead Irelands mobile phone policy, and we have zero tolerance on this.”

An appeal was lodged on March 18th, 2020, on the basis of breach of procedure and heard on the March 25th by the Head of Operations.

A number of points of appeal were raised, including that there was no investigatory hearing prior to the disciplinary hearing for the use of the mobile phone. This was not accepted by the Decision Maker as a breach of fair procedure, on the reasoning that:

“Whilst part of the Company’s disciplinary process outlines the use of investigatory hearings, in cases where the evidence is substantial enough to not require further information from the employee to ascertain whether there may be a case to answer, then the case can be referred straight to a disciplinary hearing.”

He also glossed over the omission of any CCTV policy from the colleague handbook and sought to defend the processing of the CCTV footage an hour after the incident being investigated on the basis that it was in pursuit of a legitimate interest, even though it was not.

He misinterpreted the point raised at the appeal that the charges had not been set out clearly at the outset, and thus missed the unfairness of having an additional allegation sprung on Mr. Berman half-way through a meeting in the investigation stage.

He also rejected the issues raised with the outcome of the disciplinary hearing – Mr. Berman’s summary dismissal – being issued at the meeting, even though it was clear that due consideration was not given to lesser sanctions, as they did not take any time to deliberate this, in breach of Mr. Berman’s rights to fair procedures and natural justice.

The union approached the company one further time, pointing out the flaws in the process, and asking that they re-instate Mr. Berman, but they declined to do so.

There are two relevant WRC case decisions; both closely resembling this case.

In the first, a bus driver was dismissed after her employer observed her using a phone while driving in unlawfully processed CCTV images.

In the second, a bus driver was dismissed after use of an electronic device in his cab, the company having, at the time, a ‘zero-tolerance’ policy regarding such use.

On the unlawful processing of CCTV, we refer to the decision of the Data Commissioner inthecase ofADrivervs.ABuscompany(2014).

The circumstances were similar in many respects to this case, in that a customer service complaint was received by the company, and while reviewing the CCTV footage to ascertain if the incident did occur, the driver was observed using her mobile phone while driving.

A complaint was made to the Data Commissioner, who found that the driver had not been informed “properly or fully” that the CCTV footage might be used in disciplinary proceedings against her.

They found that the transparency requirements for the processing of images set out in fair processing provisions were not fully met, and fair notice of the processing for the specific purpose of disciplinary proceedings was not given to the driver, and that the Data Controller did not comply with the requirement to obtain and process the driver’s personal data fairly.

The driver, who had been dismissed for gross misconduct, subsequently took a case to the WRC (R-152770-UD-14).

 In that decision, the Adjudicator stated that the matter turned on whether or not the use of the CCTV footage was admissible in evidence, and the fact that the decision of the Data Commissioner was unequivocal that the date was unlawfully processed pointed to the fact that the dismissal was “fatally flawed” from the outset.

Accordingly, he found that the dismissal unfair, and instructed that the driver be re-instated by the bus company with no break in service.

The matter of ‘zero tolerance’ policies in bus companies has been addressed in LCR 21293 (2016), Dublin Bus vs NBRU and SIPTU. The Court found that the company had prohibited the use of electronic devices by drivers, and that if found using such devices while in charge of a company vehicle, that drivers are putting their continued employment at risk.

However, it found against ‘zero tolerance’ policies where dismissal is the automatic penalty for use of a mobile device in the cab, stating:

“The Company must when investigating any incidence of alleged breach of the impugned policy comply fully with the terms of its procedural and disciplinary procedures and the terms of all relevant employment legislation. Furthermore, any sanction it decides to take against anyone found to have infringed the policy must be informed by the facts and circumstances of the case, be measured and proportionate and satisfy the tests set out in all relevant employment legislation”.

Following this recommendation, Dublin Bus subsequently changed its policy to include varying of disciplinary penalties dependent on the gravity of the breach.

The case ADJ-00014518, A Driver vs a Transport Company (2018), expands on LCR 21293.

The complainant had been dismissed in 2016 due to alleged use of an electronic device, while the company’s zero tolerance policy was still in effect. His internal appeal was unsuccessful, and his employment was terminated. However, he was allowed to return on a Final Written Warning following a “mercy hearing” four weeks later.

The union appealed the severity of the sanction to the WRC and argued that the company had not acted reasonably when they automatically dismissed the driver due to their “zero tolerance” of mobile phone usage, as such policies were found to have been unjust.

The Adjudicator on the case did not agree that the Final Written Warning should be removed from the complainant’s record. He stated that he “accept[ed] and support[ed] that any breach of health and safety rules is a serious matter that warrants a serious outcome”. However, he did note that he “also view[s] any Disciplinary Procedure as a corrective action and not a punitive action.”

He agreed that had the incident taken place after rather than before the Labour Court Ruling on Zero Tolerance policies, the outcome would have been different, and the driver would not have been dismissed.

The Adjudicator recommended that the company pay the complainant a sum equivalent to the sum he lost during what he terms “the time of his suspension”. This was in reality the period of time during which the complainant had been dismissed before his mercy hearing with the company.

SIPTU does not condone the use of mobile phones while driving and does not dispute that it can be a serious breach of health and safety for a bus driver to do so.

Nevertheless, everyone has the right to due process.

Mr. Berman should not have been summarily dismissed on March 4th, 2020; the investigation, the disciplinary hearing, and the appeal hearing were all procedurally flawed, and the dismissal itself fundamentally unfair.

First and foremost, the CCTV footage on which the dismissal rested ought to have been inadmissible. The manner in which it was processed did not meet either fundamental Data Protection Principles, or the transparency requirements set out in fair processing provisions.

 In particular, it ought not to have been processed in the first place, as the respondent did not have a valid CCTV policy which stated clearly that footage could be used in disciplinary hearings. Therefore Mr. Berman had not been informed “properly or fully” that the CCTV footage might be used in disciplinary proceedings.

Even if there had been a policy in place, the respondent did not have a legitimate interest in viewing footage from one hour after the passenger in question left the bus. This constituted “further” and therefore unlawful processing.

The complainant was not told in advance that the CCTV was going to be viewed, or why.    

He was therefore not given fair notice of the processing for the specific purpose of disciplinary proceedings, and the Data Controller did not comply with the requirement to obtain and process the driver’s personal data fairly.

The problematic usage of the CCTV footage was highlighted consistently throughout the process by SIPTU, so the company was well aware of this defect.

The lack of investigation or consideration given to any mitigating circumstances around Mr. Berman’s use of a mobile phone was a further breach of natural justice and fair procedures. As LCR 21293 states, the facts and circumstances of any such phone usage must be taken into consideration.

Mr. Berman’s recollection of the incident for which he was dismissed is that he picked up his phone thinking it may have been work texting him, as the radios did not always work on the buses. He established quite quickly that it was not work and put the phone back down.

But because the company did not bother to investigate, the company believed the “evidence is substantial enough to not require further information from the employee to ascertain whether there may be a case to answer” – the facts and circumstances of the mobile phone usage were never taken into consideration by the company.

Disciplinary action ought first and foremost be corrective and not punitive, and the response of the employer to mobile phone usage by bus drivers must be measured and proportionate and satisfy the test set out in all relevant employment legislation.

Mr. Berman had a clean disciplinary record at the time of the incident. Summary dismissal without notice for a first offence was the most extreme response on the band of reasonable responses and cannot be read as anything other than punitive rather than corrective. Due to their zero-tolerance policy, Go Ahead Ireland never gave any consideration to a lesser or alternative sanction, and the outcome of the disciplinary hearing was indisputably pre-determined.

It is clear from the numerous errors and omissions outlined above, that the decision of Go Ahead Ireland to dismiss Mr. Berman was fundamentally flawed from the start, and that it rightfully ought to be overturned.

Compensation for loss of earnings is not a sufficient remedy in this case, and the complainant seeks  re-instatement to his position as a bus driver for Go Ahead Ireland, with no break in service.

This to be the only fair remedy given the extent of the injustice in his dismissal.

The sequence of events as set out above is largely accepted by both parties.

The complainant was the subject of a complaint (in respect of which he was exonerated) but in the course of viewing CCTV footage as part of the investigation of that complaint he was spotted using or handling a mobile phone, contrary to company regulations.

This, in due course, led to his dismissal following a disciplinary process.

The complainant has raised a series of objections to the manner in which the disciplinary process was managed by the respondent.

He says they should not have been viewing CCTV footage unless there was a good reason to do so. The footage where he was using the phone was captured an hour after the original incident being investigated, and of which he had been on notice.

He further says that this was a breach of data protection law and also the company’s own policy relating to use of CCTV footage. The complainant says there is no provision for its use in disciplinary proceedings.

He goes on to argue that there should have been a separate investigation of the second event. The company’s response to this is that it did not need to do so as the facts on which it proposed to act were incontrovertible.

There were extensive exchanges on the propriety of how the CCTV footage was used. The company said it had a ‘legitimate basis for processing’ the CCTV footage.

However, a more obvious and relevant question is whether it had a legitimate reason for viewing it in the first place.

Of course, it may have had some reason for viewing the footage of the first incident, although that is not certain in view of what follows, but in any case, irrelevant to this complaint. The respondent answers this by saying that the complainant was aware of the policy and that it had a ‘legitimate reason’ for processing it.

It also says that this did not breach his rights under the GDPR.

It was not explained why those viewing the CCTV footage for that specific purpose were still looking at footage an hour later, when it must be assumed the episode they were investigating had long since concluded. 

The complainant argued that there was no agreement with the union that CCTV footage may be used in disciplinary proceedings.

Whether such agreement is needed in general is a separate matter and it is easy to imagine circumstances in which CCTV might be useful (to either party) in disciplinary proceedings.

However, whether it should be used or not and the circumstances in which it might be used should be clearly set out in the CCTV policy. The respondent has relied on the terms of the policy being known to the complainant.

The respondent’s CCTV policy is an extensive document. However, it makes no reference in the Scope section to employee discipline, where its purpose is described as being.

‘For the safety of the organisation’s employees, customers, visitors and contractors, but also for the prevention and detection of crime, security, training/performance and public safety.

Although the respondent did not do so, it may well have sought to ‘shoehorn’ a disciplinary matter into ‘training/performance’, but this would be to stretch the clear meaning of the Scope beyond what was intended.

It seems very reasonable to assume that if the authors of the document had intended a possible use for disciplinary purposes they would have stated this explicitly as it is such an obvious possibility.

By extension, it is also safe to assume that if it was not expressly provided for then it was not intended that it should be used for that purpose. 

The policy also states that

‘Personal data shall be processed fairly and lawfully and shall not be processed/viewed or downloaded unless there is a specific request for the images, the request will be for legitimate reasons, for internal or external Request (which is then further explained)

It seems fairly clear that the images giving rise to the complainant’s dismissal were viewed entirely by happenstance; there had been no ‘request’ for them.

The phrase ‘unless there has been a request for them’ is an explicit requirement that there should be such a request; it leaves no room for discretionary trawling through footage as happened here.

So, while the WRC has no jurisdiction in relation to breaches of data protection law (and no findings of any breach were made elsewhere) the operation of fair procedures has as one of its central collateral principles that an employer will follow and respect its own policies and procedures. This forms part of the basis of the contractual relationship with the employee.

It clearly did not do so in this case.

Quite what the respondent meant by asserting that the complainant was aware of the policy is not clear; on the basis of the foregoing the respondent appears not to have been aware of what its own policy actually said, and the limits it imposed on accessing and use of the data.

It is clearly not an authorised or legitimate action to go through CCTV footage on a kind of speculative fishing expedition to check employee conduct.

This gives rose to an obvious difficulty in relation to the complainant’s criticism that he had no ‘face to face’ investigation and raises the question as to whether any disciplinary consequences should have followed information which came to light in this way.

There may be some circumstances where information that comes to light is so demonstrably clear that it does not require a preliminary investigation, provided that the information and any supporting evidence is presented to the employee in question.

The only purpose in having an investigation is to establish the facts. They then are no more than evidence at the disciplinary stage anyway.

However, that might apply in a situation when there was no dispute about the source of the information, and, as the complainant put it, its ‘admissibility’ in the disciplinary process.

However, given what follows that breach of the CCTV policy and the issue of admissibility is a secondary aspect of the matter.

By far the most serious of the objections raised by the complainant concern the manner in which the so called ‘zero tolerance’ policy has been applied.

For the convenience of the reader, I set out again that section of the complainant’s submission where it relies on Dublin Bus v NBRU and SIPTU LCR 21293 (2016).

 The Court noting that if found using such devices while in charge  of a company vehicle drivers were putting their continued employment at risk. The Court continued;

“The Company must when investigating any incidence of alleged breach of the impugned policy comply fully with the terms of its procedural and disciplinary procedures and the terms of all relevant employment legislation. Furthermore, any sanction it decides to take against anyone found to have infringed the policy must be informed by the facts and circumstances of the case, be measured and proportionate and satisfy the tests set out in all relevant employment legislation”.

It is important and, in this context significant to add, that these comments were made in the course of a recommendation by the Court that the unions should accept the bus companies’ proposed policy on use of mobile devices.

Therefore, the statement above can reasonably be interpreted as part of the Labour Court’s conditionality in making its recommendation (indeed it makes up almost half the text of the short recommendation).

The language used by the Court in LCR 21293 is also and especially noteworthy in another respect.

It eschewed any reference to ‘zero tolerance’ and presented the situation in rather more measured and appropriate language in noting that employees;

 ‘if found using such devices while in charge of a company vehicle they are putting their continued employment at risk’.

The complainant described this as the Court finding against “zero tolerance” policies where dismissal is the automatic penalty for use of a mobile device in the cab.

It is not simply that dismissal is an automatic penalty. Dismissal may be said to be ‘automatic’, or at least an inexorable consequence in many cases of gross misconduct once such a finding has been made in a disciplinary process and employees facing disciplinary hearings are often on notice of this possibility.

 The significant consideration in this case is whether a decision to dismiss will result, not just automatically following a finding against the employee, but whether this will happen regardless of what may be submitted in evidence or mitigation at a disciplinary hearing.

In that respect, while an employer may feel a need to use some form of strong language to get a message across, use of a phrase such as ‘zero tolerance’ is a risky choice as it is imprecise, colloquial shorthand.

What does it mean exactly? Zero tolerance could mean several, different things.

If the intention were simply to convey in a general way how seriously the offence would be viewed; and to set out clearly that a successful finding against a person of such a breach will carry very serious penalties, then that would be one thing.

At the lowest level it might mean only that disciplinary proceedings will always follow any reported incident without exception.

This is similar to the well-known public warning ‘trespassers will be prosecuted’. Such signs stop short of saying ‘trespassers will be convicted’, as the only option open to a property owner is to initiate legal proceedings; it is then a matter for the courts.

Or, an alternative possibility; zero tolerance could mean that some penalty will automatically follow, which could be less than dismissal. In other words, all such cases will be followed by a sanction, but the severity of the sanction will be determined by the merits of the case and the gravity of the offence.

If in fact it means that in any circumstances an employee in any way found to have contravened the policy will have their employment terminated, then that, of course is quite different.

By way of perspective on this, what is stopping the respondent saying this in plain and specific language, rather than hiding behind the euphemism ‘zero tolerance’ and stating plainly not only that an employeee’s job is ‘at risk’, as the Labour Court put it, but that it will result in termination, whatever happens.

What is stopping them is that they know that any such threat would be unlawful and a breach of a person’s right to a fair process and that it would incite a very negative reaction from its workforce.

The complainant’s union made it clear that it is very opposed to the use of mobile phones, but it is likely that it would feel bound to oppose such language as authoritarian and for the other reasons set out here.

However, the respondent confirmed at the hearing that in all cases an allegation of mobile phone use will result (and has resulted) in a termination of employment.

This represents a policy on the part of the respondent that constitutes prejudgement in respect both of guilt and of sanction.

It is a clear breach of one of the cardinal principles of fair procedure; the audi alteram partem rule which requires an independent, unprejudiced, and fair hearing of all aspects of a case before deciding the outcome.

A person conducting a disciplinary hearing with this respondent appears bound to find against a complainant by virtue of company policy and to impose the ultimate employment sanction on the basis of a prima facie case only. As noted, this was confirmed by the respondent in response to a direct question from the Adjudicator.

In doing so they are in clear breach of the rule and any sanction imposed is a denial of the constitutional right to a fair and unbiased hearing.

The Labour Court above made it clear that there must be full compliance ‘with the terms of its [a respondent’s] procedural and disciplinary procedures and the terms of all relevant employment legislation’.

Furthermore, in that regard, as will be seen above in its submission, the respondent set itself two standards it was required to meet in order to satisfy the requirements of a fair process. The second of these was;

‘Did the company follow proper procedures as set out in in its own policy and consistent with the standards set out in S.I. 146?’

It answered its own question by saying;

‘The procedures used by the company are in compliance with natural justice, S.I. 146 and company procedure’.

It may have overlooked the following which appears at Clause 6 of SI 146/2000, ‘The Code of Practice’.

That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

For the reasons set out above, vital elements of this clause were missing in the respondent’s handling of the disciplinary process, and therefore it must also be deemed to have failed to meet the standard it set for itself.

Notably, it is clear that ‘any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances’ will be of no avail as they will have been trumped by the ‘zero tolerance’ policy as it is applied by the respondent.

The complainant was critical of the respondent taking only fifteen minutes to reflect on its decision after the hearing. On the basis of what has emerged here one wonders why it took so long.

All of this renders the dismissal unfair and does so at a serious level of gravity.

The complainant sought reinstatement.

The more common remedy sought in unfair dismissals cases is that of compensation.

This is generally the case because relationships at the workplace may have been badly damaged by the incidents giving rise to the dismissal, or because too much time has elapsed, because a complainant does not wish to return to their former employer, or for some other reason.

Those are not factors in this case, and I take further account of the isolated (if serious) nature of the incident and the serious breach of the complainant‘s rights.

In the circumstances I consider reinstatement to be the correct remedy in accordance with Section 7 (1) (a) of the Unfair Dismissals Act, 1977 and I so order.

Complaint CA-00036328-001 is well founded and the dismissal was unfair.

I order that the complainant be reinstated to his position with the respondent in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal.

Unfair Dismissal, Reinstatement