Complainant

Respondent

Parties

Calvin  O'Beirne

CPL Solutions Covalen

Representatives

  Self

Tiernan Lowy, BL, instructed by CC Solicitors

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-00043113-001

18/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 81E of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00043113-002

18/03/2021

The complainant commenced employment with the respondent on 23/07/2018 as a Community Operations Analyst (and sometimes referred to as a Content Moderator).  The respondent provides a range of recruitment and outsourcing services, and the complainant was assigned to a client site.  In August 2020 the complainant was working on what are known as “Tickets” and he transferred an image from one of those tickets to an internal messaging system.  This was in breach of the strict protocols and procedures which govern this work.  Following an investigation, disciplinary and appeal process the complainant was dismissed by the respondent on 20/20/2020.  He submitted his complaint of unfair dismissal to the WRC on 18/03/2021.  He was paid €2,200 gross per month. The respondent denies that the dismissal was unfair and only took place after a full investigation and a robust disciplinary and appeal process which took place in full compliance with the respondent’s procedures.

The respondent provides a range of recruitment, staffing and outsourcing services to a number of clients.  The complainant’s contract of employment confirms that he is an employee of the respondent and not any of their client’s that he may be assigned to.  The contract of employment makes a number of important stipulations in relation to the complainant’s obligations to familiarise himself with the employee handbook, contract of employment and the conditions of employment.   There is also a requirement in relation to the “customer satisfaction” which the complainant was obliged to follow.  Due to the nature of the work the respondent puts a significant amount of time and resources to ensure that the Community Operations Analysts are fully trained and cognisant of the importance of their role. The Community Operations Analysts are required to comply with all the client’s policies related to their work.

The role of a Community Operations Analyst is to determine what content is or is not permissible in accordance with the pre-set standards of a given platform.  The complainant underwent comprehensive training before he commenced in this role.  The complainant underwent tailored training which provided him with the strict instructions on what to do if Child Exploitation Imagery (CEI) or suspected Child Exploitation Imagery was found on any client systems or devices.  The policy was categorical in its instructions and provided that CEI should only be reviewed in platform content review workflows.  The Community Operations Analysts were advised that if there was any doubt in relation to any particular content, they were obliged to contact their internal supports, coaches within their region, Quality Analysts or their direct line manager or the next level of management.

The respondent’s Head of Human Resources (HR) Ms Sandra Lynam gave evidence.  She confirmed that the complainant was an employee of the respondent and not the client where the complainant was based.  She confirmed that the respondent was an outsourcing company who recruited, trained, performance manged and dealt with all aspects of the employee life cycle.    Ms Lynam confirmed that employees are employed to work on a specific client site and are not required to work across multiple sites.  Ms Lynam provided details of the respondent’s employee handbook, disciplinary procedures and their extensive three week on-boarding process.  Ms Lynam also outlined the robust training provided and which is supported by their Learning and Development department. This is because of their client’s strong emphasis on quality.

Ms Lynam gave evidence in relation to the respondent’s disciplinary procedure and confirmed that in cases of suspected gross misconduct an employee is placed on paid suspension.

Ms Lynam also gave evidence that in addition to their policies an employee is contractually obliged to be bound by the policies of the client site where they are based.  Employees on these sites would have access to very sensitive data and content.  Ms Lynam confirmed that the complainant was given all the necessary training to enable him to take up the role.  Ms Lynam confirmed that since he took up the role the complainant was assigned additional duties as an auditor.  The role of auditor is to review particular content or image and see if it complies with the relevant policies.  The training for this role is done to ensure that the auditor is able to apply the client policies and is competent in checking if the client’s policies were correctly applied.    Ms Lynam confirmed that an auditor can only send a “ticket” to another auditor and in doing so they are only permitted to send the ticket ID number.  It was put to Ms Lynam that the complainant said he sent the image to the internal post as there were no auditors available.  Ms Lynam said that there were alternatives available to the complainant.  He could have linked with his direct manager, coaches or regional coaches.  Ms Lynam confirmed that it was never permissible to send an image to another auditor or moderator. Ms Lynam gave further evidence in relation to CEI training, obligations in law and the procedures in place when policies are not adhered to.

Ms Lynam gave an overview of the workplace group chat function and confirmed that this was a communication mechanism, and any sharing of images or data was not allowed.  Ms Lynam said that it did not matter if the complainant felt that the image was not CEI.  No imagery was permitted for sharing and if there was any query an employee was only permitted to share the ticked ID.

Ms Lynam was asked to explain the delay in bringing this matter to the attention of the complainant. She outlined that the client is responsible for assessing and monitoring the activities on site.  When they find that an issue warrants further action, they then notify the respondent.  It would be normal for this process to take a few weeks.  Ms Lynam outlined that the meeting on the client site with the complainant was an informal meeting and the purpose of such a meeting is to let the complainant know that the client has raised a flag in relation to an incident.  Ms Lynam confirmed that in this case the allegation was that the complainant had misused a clients took by sharing an image.  In addition to this the complainant also checked the status of the image on Google which was totally against company policy and not in line with the robust checking procedures.  Ms Lynam confirmed that the policy in relation to an image was to assume that it was CEI and have it checked out.

Ms Lynam provided the hearing with details of the respondent’s policies regarding investigation, disciplinary and appeal processes.

Ms Lynam was cross examined by the complainant.  She was asked if the respondent’s policies were informed by the client’s polices and she confirmed that they were.   Ms Lynam was asked if the projects undertaken by the respondent were dictated by the client and she confirmed that the client would outline their requirements and work-flow requirements and the respondent would then determine the headcount necessary to support this.  The respondent is totally responsible for the headcount and task management on the client’s site.

Ms Lynam was asked about the meeting on the client’s site which the complainant attended.  She confirmed that this is initiated by the client and is not a formal meeting.  The purpose of the meeting is merely an information gathering exercise.

Ms Lynam was asked why the complainant was banned when he submitted the image into the tool. MS Lynam said that the respondent had no control over the client’s processes.  The delay in the investigation was due to the client’s own processes but as soon as the respondent was notified of the matter the investigation commenced.

It was put to Ms Lynam that there was a clear link to the criticism of the respondent submitted by the complainant and his subsequent suspension and dismissal.  Ms Lynam said that there was no correlation.  Ms Lynam also confirmed that she was unaware that the complainant’s manager was asked by the regional manager to get the complainant remove the post and she confirmed that she was not aware of this.

Mr Placidio Eusebio Sutil gave evidence on behalf of the respondent.  Mr Sutil provided details of his employment with the respondent.  He was asked by the respondent’s HR department to undertake the investigation into the incident involving the complainant. He did not know the complainant and he worked in a different region.  Mr Sutil outlined that his role as the investigator was to gather information and to decide if a disciplinary hearing was warranted.  Mr Sutil confirmed that he had no role in relation to the decision to dismiss the complainant.  Mr Sutil confirmed that the allegation he was investigation was whether or not the complainant breached the client’s policy in relation to the sharing of an image.  Mr Sutil outlined that there is a policy update every two weeks and it is not acceptable to rely on memory. Mr Sutil confirmed that there are no circumstances in which a content moderator or auditor can deviate from the policy.  If there is any doubt the auditor should seek a second opinion and in doing so the only item that is permissible to share is the ID of the content or image.  Mr Sutil said that he was not aware of the Google policy, so he did not know what the complainant was hoping to find when he used that platform.   It was put to Mr Sutil that the complainant did not see anything wrong with what he done.  Mr Sutil said that the complainant shared an image which could potentially be classed as CEI and he was certain that the complainant was aware of the policy in relation to sharing images.  Mr Sutil was asked to comment on the complainant’s proposition that the decision to dismiss him was predetermined.  Mr Sutil said that he was not aware of any such decision, and he was not involved in the decision to dismiss the complainant.

The complainant cross examined Mr Sutil.  He was asked what was taken into account in terms of mitigating circumstances.  Mr Sutil outlined that every case is different and mitigating circumstances are normally submitted by the employee concerned.  It is a matter for the investigator to then consider these.

Mr Sutil was asked to clarify his statement that the policy was refreshed every two weeks.  Mr Sutil outlined that the policy is only updated if there are changes otherwise the policy remains the same.

Mr Sutil was asked if the CEI policy was universal and also market specific.  Mr Sutil outlined that his role did not involve CEI policy and so was not aware of the details requested.

Ms Jennifer Grainger gave evidence on behalf of the respondent.  Ms Grainger joined the hearing remotely and there were no connection issues. Ms Grainger confirmed that she is a regional operations manager with the respondent, and she has been in this role since 2017.  Ms Grainger confirmed that the respondent’s policy is that a disciplinary hearing is conducted by a regional or operations manager.  Ms Grainger outlined that she has significant experience in relation to disciplinary hearings.  She did not know the complainant prior to this matter.  Ms Grainger confirmed that she agreed with the evidence of Ms Lynam and Mr Sutil.

Ms Grainger gave evidence in relation to the disciplinary meeting on 14/10/2020.  The complainant was issued with a letter of invitation on 12/10/2020.  He attended the meeting and was accompanied by a work colleague, Mr P.  Ms Grainger outlined the purpose of the meeting to the complainant and also listed the potential outcomes.  Ms Grainger gave evidence that the complainant confirmed at the meeting that he shared an image within a chat group.  The complainant also gave a description of the image which he described as a “meme”.  The complainant confirmed that he took a screen shot of this image and shared it in the group.  He outlined that he did not believe that the image was CEI and when he searched Google, he found the image there also and he believed that if it was CEI then it would not be hosted on Google.  He shared it to seek clarification and he had a memory of having been previously told this image was not CEI when this image was going viral about two years previously.  Ms Grainger gave evidence that the complainant confirmed that this was a serious error of judgement on his part.

Ms Granger also gave evidence that the explanation given by the complainant did not line up with all the training provided.  The training clearly states that if you are not 100% sure if it is not CEI then you mark it as CEI until such time as its clarified.  Ms Grainger also outlined that regardless of whether an image is CEI or not it is never permissible to share any image.  In this case the complainant took the image from a client tool and shared it on a communications platform.

Ms Grainger confirmed that the complainant understood the seriousness of his action and again outlined that it was a serious error of judgement on his part.  He did not think that the image was CEI and therefore was not violating the policies.

Ms Grainger said that the complainant outlined that he never had any previous issues during the past 2.5 years.  He did notify the relevant people when it happened, and he did not try to hide anything and admitted he was wrong and that it was a lapse of judgement on his part.

Ms Grainger was then asked why she decided to dismiss the complainant and why a lesser sanction was not applied.  Ms Grainger gave evidence that she was satisfied that the complainant understood the training and he was not 100% sure that the image was not CEI.  He then went on to share the image.  The sharing of an image is gross misconduct and there was a breach of the trust placed in him.  As an auditor when working on such tickets there can be no reason to deviate from the policy.  It was clearly misuse of the client’s tools as they were used incorrectly and inappropriately.  Ms Grainger confirmed that in the hierarchy of wrongs this incident is gross misconduct.  It was put to Ms Grainger that the complainant submitted that the matter was predetermined.  Ms Grainger gave evidence that she worked on an entirely different team to the complainant and was not under any influence of pressure to make a particular decision.  She confirmed that there was no link with the complainant’s criticisms of the respondent in the internal chat group.   Ms Grainger outlined that each disciplinary decision is taken in its own context.

The complainant did not have any questions for Ms Grainger in cross examination.

Mr Alexandre Aubry gave evidence on behalf of the respondent.  Mr Aubry gave evidence remotely and there were no connection issues.  He was the Operations Delivery Manager with the respondent, and he is no longer working for the respondent.  He confirmed that he was asked to hear the appeal by the complainant, and he had no prior knowledge of the complainant.   Mr Aubry outlined his previous experience in disciplinary hearings.  Mr Aubry confirmed that he heard the evidence of the previous witnesses, and he was in agreement with their evidence.  Mr Aubry confirmed that this was a grounds-based appeal and was based on the specific grounds outlined by the complainant in his e-mail.  The complainant was accompanied by a work colleague, Mr P, at the appeal hearing on 27/10/20.  The complainant’s e-mails were reviewed.  The complainant then offered some medical information for which he was receiving treatment/medication at the time of the incident and one of the side effects of this medication was that it could include lapse in judgement and memory.  Mr Aubry said that this was the first time this was raised, and the complainant confirmed that his medical practitioner had confirmed that he was fit to do his job.  Mr Aubry also outlined that the complainant stated that it was an understandable but serious lapse of judgment on his part and acknowledged that it was a mistake, and it would not occur again.

Mr Aubry was asked to outline why he upheld the decision to dismiss the complainant.  He gave evidence that he felt that this was the correct decision due to the nature of the policy breach.  The nature of the picture was not relevant.  There should be no ambiguity in relation to the policy for these matters.  Mr Aubry also outlined that he did not feel that the complainant has provided sufficient mitigating factors which would merit in an overturn of the decision.

The complainant cross examined Mr Aubry.  It was put to Mr Aubry that it was never put to the complainant that trust and confidence was an issue.  Mr Aubry said that the outcome of the process was that there was a loss of trust in confidence in the complainant.

The complainant made a number of general points in relation to the overall evidence submitted by the respondent’s witnesses.  He outlined that he was informed as part of his training that if an issue arose, he was required to inform his team lead and IT and have his laptop wiped.  He done this on this occasion.

The complainant also took issue with the respondent’s view that he could have taken advice.  This incident occurred in the middle of the COVID-19 pandemic and his was restricted in relation to his movements on site.  He had a recollection that the image did not constitute CEI.  It is also relevant that this was a “quality ticket” so he could not go to any team members for advice.  The Quality Analysts and Subject Matter Experts were not available.

The respondent’s representative stated in his closing statement that this dismissal of the complaint was not unfair and the contribution of the employee to his dismissal must be taken into account.  Section 6(4) of the Act sets out instances where the dismissal of an employee is deemed to be fair if it results “wholly or mainly” from the conduct of the employee.  This was a reasonable and proportionate response in dealing with this issue.

The complainant was working as a content moderator/quality auditor and in August 2020 an image of a child was in the auditing queue.  It is his recollection that this image had been clarified as not violating the client’s policy for child exploitative images.  In order to obtain a second opinion, he put the image in a group chat.  The procedure was that only a link to the image was sent but, on this occasion, he downloaded and sent the image as he believed that the image was innocent.   After sending this image his access to the platform was immediately blocked.  He followed the procedure and contacted his team lead and what he needed to do next.

On his return to work the following Monday his 72-hour platform block was automatically removed, and he assumed the matter was then resolved.  A few weeks later he posted a message on an internal work group message about the poor treatment employees were receiving.    This post garnered a lot of support from other employees. In a subsequent post he urged colleagues to join a trade union.  He was asked to remove the post by his manager, but he did not do so as he believed he had a right to vocalise such issues.

Approximately two weeks after this he was invited to a meeting with the client’s HR representative, and he was alerted to the fact that the client had concerns about the image he posted.  He was advised that the matter would be investigated by his employer.  He was suspended on pay pending the outcome of an investigation meeting. He attended an investigation meeting a few weeks later and he gave an honest explanation of what had happened.  He attended a further meeting and was told that he was being dismissed.  He availed of his right to appeal that decision, but the decision was upheld.

The complainant submits that other employees had done the same as he had done with the image and were not dismissed.  The complainant believes that the timing of his dismissal is linked to his speaking out about the company on the internal platform and for urging employees to join a trade union to protect themselves.  For those reasons the complainant believes that his dismissal was unfair and is seeking compensation.

During cross examination the complainant confirmed that he had received CEI training and that in that training there were no exceptions allowed.  The complainant also accepted that he completely understood that there was no room for deviation in that policy.  The complainant also accepted that an image may constitute CEI to someone else.  In that context it was put to the complainant that his actions in sharing the image was a serious breach of the policy and he accepted that it was.

The complainant agreed that in this incident he sought to apply his own rules but stated he felt that some leeway can be given. 

The complainant was asked if he had notified the respondent about mental health matters that he subsequently raised and he confirmed that he did not.

The complainant made a number of general points in relation to the overall evidence submitted by the respondent’s witnesses.  He outlined that he was informed as part of his training that if an issue arose, he was required to inform his team lead and IT and have his laptop wiped.  He done this on this occasion.

The complainant also took issue with the respondent’s view that he could have taken advice.  This incident occurred in the middle of the COVID-19 pandemic and his was restricted in relation to his movements on site.  He had a recollection that the image did not constitute CEI.  It is also relevant that this was a “quality ticket” so he could not go to any team members for advice.  The Quality Analysts and Subject Matter Experts were not available.

The complainant felt that the medication which he had started taking had an effect on him.  The decision to dismiss him was disproportionate as he had no previous incident, and it was a lapse of judgement and not a deliberate act.

CA-00047456-001: This is a complaint pursuant to the Unfair Dismissals Act.  The complainant commenced employment on 23/07/2018 and ended on 20/20/2020.  He worked as a Content Moderator and was placed on one of the respondent’s client sites. 

The fact of dismissal is not in dispute. The legal onus is on the respondent to show that the dismissal was not unfair.  In this case, the dismissal arose from the as a result of the complainant’s failure to follow the strict policies when he transferred an image from the content monitoring process to an internal messaging system.  This was in breach of the policies and procedures in place.  He was paid €2,200 gross per month.

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

4)     Without prejudice to the generality of subsection (1) of this section 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 one or more of the following:

(a)   the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

The Acts deem a dismissal to be unfair until the respondent can demonstrate that it was neither substantively nor procedurally unfair.  The combined effect of the above sections of the Act requires me to consider whether or not the respondent’s decision to dismiss the complainant, on the grounds stated, was reasonable in the circumstances.  It is well established case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the respondent’s decision in the circumstances.  It is not the function of the Adjudicator to establish either the guilt or innocence of the employee.

The function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done.  This is the standard by which the respondent’s actions must be judged against.  The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the Respondent needs to show that fair process and procedures were applied when conducting the disciplinary process.

In cases where a dismissal involves gross misconduct the EAT set out the appropriate test to be applied in such circumstances.  In O’Riordan v. Great Southern Hotels [UD1469-2003] the EAT stated as follows:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guild of the accused of wrongdoing.  The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

The issue of fair procedures requires examination.  I find that the investigation process was conducted by an independent person with the relevant expertise.  The disciplinary process was independent and conducted in accordance with the provisions of S.I. No 146 of 2000, more commonly referred to as the Code of Practice on Grievance and Disciplinary Procedures.     The appeal’s process was likewise conducted in an independent manner and accordance with the principles of natural justice and fairness. 

In the within case there was a significant issue which the respondent was required to address when informed by their client of the matter.  In this case a content moderator had circulated an image which was in breach of the client’s policy.  The complainant was in a position of trust at that time.  He was required to apply the relevant policy when reviewing content which could, potentially, be of a graphic nature and to follow the procedure to remove such material before it became public.  This process was also in place to ensure that the respondent’s client was compliant with the relevant law.

The complainant failed on this occasion to follow the rules and specifically the instruction that they must never capture, duplicate, or transmit any image that might be classed as CEI.  It is clear that the transmission included the use of the client’s and respondent’s internal messaging systems.

At the hearing the complainant did not provide any credible explanation for what happened other than to confirm that it was a lapse of judgement on his part.  He confirmed that he was familiar with the procedures in place for dealing with potential CEI images.  Given the position of trust he was in it is clear that he did not discern the gravity of the position he placed himself in. I find that the complainant contributed to the situation he found himself in. 

The respondent’s contract of employment with the complainant unambiguously states: “the Employee must at all times perform their duties with a view to maintaining, and whenever possible, improving and extending the reputation and interests of the Employer and the Client.  The Employee must adhere to the Client’s Standard of Business Conduct”.

The contact also has a provision that “the Employer may terminate this agreement if the Employee fails to satisfy the Employer and the Employee has the qualifications, skills, ability and experiencer necessary to carry out their duties under the Management of and to the satisfaction of the Client”.

Having considered the evidence adduced at the hearing and the submissions received I find that the decision of the respondent to dismiss the complainant was a reasonable response to the circumstances presented.  I find that the complainant was not unfairly dismissed.

CA-00043113-001:  I find that the complainant was not unfairly dismissed.

CA-00043113-002:  This complainant was withdrawn at the hearing.

Unfair dismissal.