UDD237

1.Appeal Of Adjudication Officer Decision No(s)ADJ-00031009, CA-00041272-001

BACKGROUND:

2.The worker and the employer appealed the Decision of the Adjudication Officerto the Labour Court in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 10 & 11 January 2023. The following is the Determination of the Court:-





DETERMINATION:

This is a double appeal by an employee (‘the Complainant’) and his former employer (“the Respondent”) of a decision of an Adjudication Officer (ADJ-00031009 – CA-00041272-001, dated 10 December 2021) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer held that the Complainant’s claim unfair dismissal was well founded and awarded €4566 in respect of his financial loss. The Court heard the appeal on the 10 and 11 of January 2023.

Preliminary matter

The Respondent made an application to the Court to conduct the hearing other than in public and to anonymise the decision of the Court. The Workplace Relations Act 2015 at Section 44(7) provides as follows:

• (7) Proceedings under this section shall be conducted in public unless the Labour Court, upon the application of a party to the appeal, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.

The representative on behalf of the Respondent submitted that special circumstances arose given the sensitive nature of the appeal. The Complainant was dismissed following an allegation of sexual harassment of a colleague. That colleague remains in the employment of the Respondent, and it has a duty of care to protect the identity of the employee concerned. The representative, on behalf of the Complainant, submitted that given the sensitive nature of the matter it was not opposed to the application.

Having considered the application, the Court decided that the sensitive nature of the matter before the Court constituted special circumstances and, as a consequence, decided to conduct these proceedings otherwise than in public and to anonymise this decision.

Factual Matrix

The complainant was employed as a full-time security officer with the respondent, a supermarket chain, from 4 February 2008 until his dismissal on the 11 September 2020.

On 19 June 2020 when rostered off duty the Complainant sent a video in error to a colleague, Ms. A, via WhatsApp. When he noticed that it had gone to an unintended recipient he deleted the video. The recipient, Ms A, made a formal complaint to the Respondent alleging that the Complainant had sent her a pornographic video. Ms A also alleged that the Complainant had on two previous occasions asked her for a hug and a kiss, and that he had told another colleague, Ms P, that he would like a “fresh wife like Ms A”.

On 20 June 2020, the Complainant was suspended pending an investigation. The investigation report issued on the 30 July 2020 addressing five allegations. Its findings were that: (i) the complainant had sent a pornographic video to a colleague which caused offence, (ii) no evidence existed to support an allegation that the Complainant had asked Ms A for a hug, (iii) the Complainant had initially misled the investigation by denying that he told another colleague Ms P that he would likea fresh wife like MsA, (iv) the Complainant contacted Ms A and asked another colleague Ms P to contact Ms A on his behalf, despite an instruction not to contact Ms A, (v) the Complainant sent Ms A second video on 29 June 2020, despite an instruction to desist from any further contact with Ms. A. The Complainant’s actions were found to have breached the Dignity at Work Policy and the matter was put forward for a disciplinary hearing.

A disciplinary hearing took place on the 6 August 2020. The outcome of the disciplinary investigation was advised to the Complainant on 11 September 2020 and the Complainant’s employment was terminated on the grounds of serious misconduct. He appealed that finding and an appeal hearing was held on 6 October 2020. The decision to dismiss was upheld.

Position of the Respondent

The Respondent refutes the claim that the Complainant was unfairly dismissed. The Complainant’s employment was terminated on 11 September 2020 on the grounds of serious misconduct following a fair and impartial investigation, disciplinary, and appeal process.

The Complainant's gross misconduct encompassed inappropriate and unwelcome behaviour of a sexual nature towards a colleague, Ms A, amounting to sexual harassment. The Respondent has a common law and statutory duty of care to all its employees to provide a safe place of work. This includes a place of work free from harassment or sexual harassment. Sexual harassment cannot be excused. The Complainant received training on all of the Respondent’s policies and procedures, including the Dignity at Work Policy which was updated to the Bullying and Harassment policy in 2020.

Having considered the facts, the Complainant’s responses and explanations were not considered reasonable nor sufficient such as to mitigate the extreme seriousness and far-reaching implications of his actions. When considering what sanction to apply the company had regard to the seriousness of the allegations and to the representations made by the Complainant.

The Complainant was afforded fair procedures, in line with the company’s policy, the Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. He was informed in advance of the nature of the allegation against him and afforded the right to representation. He was provided with a number of fair and impartial hearings, at which he was given every opportunity to respond to the allegations against him. All the evidence in its entirety was considered, including the Complainant’s representations, before any decision was made or action taken. The dismissal of the Complainant was procedurally fair in all respects.

The actions of the Complainant contributed wholly to his dismissal. The Respondent’s decision to dismiss was reasonable and fair in the circumstances, and no unfair dismissal took place. Areasonable employer in the same position and circumstanceswould have reached the same determination in the circumstances of the within case.

The Respondent referred the Court to the cases ofLooney & Co. Ltd v Looney, UD 843/1984,A senior Men’s Clothing Salesman and A Clothes RetailerADJ- 00016285andMurray v Meath County Council, UD 43/1978in support if its position.

Position of the Complainant

In June 2020 the Complainant sent a video in error to a colleague on WhatsApp causing her upset. On realising his mistake he deleted the video and deleted the colleague’s details from his contact list. The complainant has repeatedly apologised for his error and for the upset caused to Ms. A. These factors were not considered in mitigation.

The Complainant’s action did not constitute misconduct or serious/gross misconduct. The Complainant made a simple mistake. He acknowledged that mistake and had apologised for the upset caused to his colleague. Gross misconduct presupposes an element of intentional and deliberate misconduct. Nothing in this case indicates any intention of deliberate misconduct or malice and the facts of the case do not support a finding of serious/gross misconduct.

There is a crucial lack of evidence. The unintended recipient saw the video for two seconds before she deleted it. Nobody else saw the video. The process was tainted by bias with the issues being prejudged and the penalty predetermined.

The dismissal letter made no reference to the Complainant’s admission, his apologies, or the fact that the video was sent in error, or that the colleague was not the intended recipient. Furthermore, no account was taken of the gravity and effect of the dismissal on the Complainant.

Given all of the circumstances of the case, including the Complainant’s admission and repeated apologies, the penalty imposed was disproportionate, excessive, and unjust. The Respondent has acknowledged his long service and clean record, yet it took no account of the gravity and effect of the dismissal on the Complainant.

The Complainant referred the Court to the cases ofFrizelle v New Ross Credit Union Limited [1997]IEHC 137,Bunyan v United Dominion Trust [1982] IRLM 404andMcGee v Beaumont Hospital ID/136/184in support if its position.

Witness Evidence

The Court heard sworn evidence from three witnesses on behalf of the Respondent, Ms G, Mr N, and Mr M, as well as the Complainant, Mr I, and his daughter, Ms C.

Testimony of Ms G - investigator

Ms G was the store manager where the Complainant worked. Undertaking investigations was part of her role and she carried out numerous investigations in the past. As investigating officer, her role was to establish facts and determine if the matter should be escalated to a disciplinary process. Having conducted the investigation she decided that the matter should be escalated to a disciplinary process. The Complainant was accompanied by a full-time trade union official throughout the investigation.

Under cross-examination Miss G said that the Complainant confirmed at the investigation that he had sent a pornographic video. She had not seen the video and the term “pornographic” was the term used by Ms A to describe the video. Ms G accepted the Complainant’s word that he sent the video by mistake.

Ms G considered a statement made by a colleague, Ms P, that the Complainant, Ms P, and Ms A, were always engaged in banter and joking. The complainant had initially denied that he told Ms P that he needed a“fresh wife like MsA”, but later admitted to this, only after Ms P gave her statement. Ms G took account of Ms P’s explanation that it was she who instigated the question about a new wife with the Complainant, and that Miss P had explained this to Ms A.

On 29 June she instructed the Complainant to have no further contact with Ms A. He told her that he had deleted Ms A as contact on his phone, yet later that night at 10pm the Complainant sent Ms A another video. Ms G confirmed that her overall finding was that the Complainant’s behaviour was “both highly inappropriate and unacceptable”.

Testimony of Mr N – decision maker

Mr N told the Court that he was appointed to act as the disciplinary officer by the Area Manager. He was a Store Manager in a different location. He did not know the complainant before the investigation. As a disciplinary officer his role was to receive the outcome letter and accompanying statements and to interview the complainant to establish any evidence. The investigation report formed the starting point of his investigation and the basis for his decision making.

Mr N conducted the disciplinary hearing and went through each allegation with the Complainant. He upheld the first allegation that the Complainant sent a pornographic video to a colleague. He understood that the video was pornographic in nature, as it was presented as such in the investigation report, and that was the evidence of Ms A as set out in her statement. Mr N upheld the allegation that the Complainant said that he wanted a “fresh wife like MsA”. He upheld the allegation that the Complainant contacted Ms A after being told not to contact her. He upheld the allegation that the complainant sent Ms A a second video.

Mr N found that sending a pornographic video was a serious breach of the Dignity at Work policy. In light of the impact on Ms A, Mr N determined that the appropriate sanction was dismissal. He said that in her statement Ms A had outlined her loss of sleep and anxiety and said that she was fearful of going to work.

Under cross-examination, Mr N said that he had considered the fact that the video was sent in error, but took account of the fact that the Complainant had sent a second video to Ms A. He did not think the second video was pornographic in nature. He considered the fact that the Complainant had apologised for his actions. In considering an appropriate sanction, Mr N said that transfer and demotion were not considered as options. There were no other security officer roles available, as the roles had been outsourced. He understood three options were available to impacted security workers, including redundancy. He was already on suspension.

Mr N said that he was guided by the investigation report in coming to his decision, as the report provided the evidence. He did not interview Ms A as part of the disciplinary process. He did not consult with anyone else in arriving at his decision.

Mr N rejected the assertion that dismissal was a harsh sanction for making a mistake by pressing the wrong button. He said that there was a zero-tolerance policy for breaches of the Dignity at Work policy. The Complainant had undergone training in policies and was around long enough to know that he was in breach of the policy. He was responsible for his actions, and he was responsible for the outcome.

When asked if, given the Complainant’s 12 years’ service and the fact that he was in his late 50’s with few transferable skills for other employment, he had considered the effect of dismissal on the Complainant, Mr N said that his first duty of care was to look after the girl in question. Mr N acknowledged that the Complainant had a clean service record and no performance issues. When asked how he reconciled this with arriving at a decision to dismiss the Complainant, Mr N said that the Complainant was dismissed because of his conduct and behaviour. When asked if he would employ the Complainant again, Mr N said that he didn’t recruit security officers, but he would employ him again.

Mr N accepted that the dismissal letter did not provide any details behind his reason to dismiss the Complainant on the grounds of serious misconduct. No objections were raised to the description of the video as pornography during the disciplinary process. The sending of the pornographic video was the sole reason for dismissing the Complainant. It may have happened outside the workplace, but there is an obligation to provide employees in work with a safe place to work. Sexual harassment at work in not acceptable.

Testimony of Mr M – Appeal Hearer

Mr M told the Court that he was appointed to conduct the appeal. He had conducted appeals in the past and his role was to review if an investigation and disciplinary process were carried out, and to review the grounds for appeal. If he viewed the process as unreasonable or flawed he had the authority to overturn the decision.

Mr M said that he was happy that the investigation had been carried out correctly and that it was appropriate to escalate the matter to a disciplinary process. He was satisfied that the disciplinary process was carried out correctly and that the process was fair. He received two sets of documents from the Complainant setting out his grounds of appeal, which were difficult to follow. He spent a lot of time correlating the documents into one document setting out 21 grounds of appeal.

The Complainant’s trade union official confirmed that they were happy with the summary of grounds of appeal and had nothing else to add. At the appeal hearing, he gave the Complainant an opportunity to respond to each of the 21 grounds. He subsequently interviewed the store manager Ms G who conducted the investigation, as well as Mr B who had suspended the Complainant, and Mr N who conducted the disciplinary hearing.

He found each of the 21 grounds of appeal to be unfounded. He issued his findings on 27 October 2020. He took all appeal grounds into consideration in deciding the appeal outcome. In conclusion, he found that the process followed was fair and carried out correctly. In his view it was a very serious matter, and he upheld the decision to dismiss.

Under cross examination, Mr M said he had approached the appeal with fresh eyes and would not change the appeal outcome. He agreed with the decision maker’s finding that sending a pornographic video to Ms A was inappropriate behaviour that constituted gross misconduct. When challenged that his evidence at the WRC hearing was that he had took his lead from Mr N the decision-maker, Mr M said that his evidence was taken out of context. The decision to reject the appeal was his decision alone. If he had been unhappy with either the investigation or the disciplinary process he could have overturned the decision.

Mr M confirmed that he did not see the first video, and that he did not interview Ms A or have her phone searched. He accepted that the second video was sent to her by mistake. He accepted Ms A’s statement over that of her colleague, Ms P, who had stated that the Complainant was joking about needing a fresh wife. He did not place their evidence on a level pegging, as he considered the effect of the video on Ms A to be more relevant. He interviewed Mr B and did not accept that he told the Complainant that he would not be back in the shop, when suspending him. He took account of the Complainant’s service, the impact of dismissal on him, and that the video was sent by mistake when considering the sanction. He considered relocation but ruled it out.

He did not consult with anyone in deciding on the appeal outcome. He was a Grade 3 level, which is the same level as the investigation and disciplinary officers. The appeal process allows for managers from other stores to conduct appeals. The Complainant was dismissed for serious misconduct in sending pornographic video to a colleague.

Testimony of Mr I - the Complainant

The Complainant confirmed that he sent a video via WhatsApp to Ms A on 19 June 2020 when he was off work. A friend had sent him the video and he sent it to Ms A by mistake, as her name was beside his friend’s name on his contact list. When he realised the mistake he deleted the video. When he returned to work on the 20 June 2020 he was suspended on full pay by Mr B. He was not told not to contact Ms A.

At the investigation meeting he said that he was friends with Ms A on WhatsApp and the video that he sent was not pornographic. He could not recall Ms G telling him to have no contact with Ms A.

Under cross-examination, the Complainant confirmed that he attended the investigation and disciplinary meetings with his union representative. He told the Court that he could not remember what was on the first video. He could not remember why his evidence at the WRC hearing was that he would not like his daughter to receive such a video, nor why, when asked why he apologised to Ms A, he said that he could not remember. The Complainant said that the video contained a man and a woman. They were doing nothing. They were not naked. They were wearing underwear. They were dancing.

The Complainant said that he made a mistake. He had apologised to Ms A. He never made a comment to Ms A about needing a fresh wife. He accepted that he sent a text to Ms A after he was suspended, and that he sent her another video.

The Complainant said that he could not recall if he or his union official had challenged the assertion that the first video was pornographic. He signed the minutes of the meeting and did not challenge the contents of those minutes. He was there for ten years and never did anything wrong.

Testimony of Ms C - daughter of the complainant.

Ms C told the Court that on 29 June 2020 her father was very stressed as he had accidentally sent a video to someone at work. All of his contacts on WhatsApp received a video of two people dancing on skates at a wedding. Ms C said that Ms A’s number had been deleted from the contact list on her father’s phone but was still stored on the chat history on WhatsApp. She deleted his chat history from his phone so that he couldn’t send anything.

The Relevant Law:

Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:

• 6.— (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.
  
  (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 qualifications 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 which 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.

Deliberations

The fact of dismissal is not in dispute, therefore, there is a statutory presumption that the dismissal was unfair unless there were substantial grounds justifying it. It is for the Respondent to establish that in the circumstances of this case the dismissal was not unfair. It is well established that in determining an appeal under the Act, it is not the role of this Court to substitute its decision for that of the Respondent. The Court’s function is to consider whether in all of circumstances the decision to dismiss the Complainant was within the band of reasonable responses open to a reasonable employer.

In reaching its decision the Court has taken account of all written and oral submissions of both parties and has had full regard to the evidence adduced in the course of the appeal hearing.

The Court notes that while four of the five allegations made against the Compliant were upheld, the sole reason for terminating the complainant’s employment related to the sending of an inappropriate pornographic video to acolleague. It is accepted that the video was sent in error.

The Respondent’s case is that the Complainant's inappropriate behaviour towards a colleague amounted to sexual harassment and the Respondent has a duty of care to all its employees to provide a safe place of work free from harassment or sexual harassment. It submits that sexual harassment cannot be excused, and thatthe Complainant’s dismissal for gross misconduct was justified.

The Complainant’s case is that the sending of a video to a colleague was a simple error.There was no intent or malice involved that supports a finding of misconduct or serious/gross misconduct, and the Respondent did not take account of the fact that the colleague was not the intended recipient or his admission or his apologies. No account was taken of the gravity and effect of the dismissal on the Complainant.

The Complainant’s representative placed great emphasis on the lack of evidence in relation to any pornographic video. It is accepted that the video in question was deleted by both the Complainant and the recipient, Ms A, on the day that it was sent. The Complainant’s submission to the Court included awritten statement by the Complainant submitted during the investigation process, in which he admitted full responsibility for forwarding a video of adult content in error to a colleague. This statement conflicted with his evidence before the Court, which was at times vague and contradictory.The Complainant’s evidence was that the video was not pornographic, and that he informed Ms G that it was not pornographic at the investigation. He said that he could not remember the content of the video in question, but when pressed on this matter he recalled that it contained a man and a woman dancing in underwear. He could not recall if he or his union official had challenged the assertion that the video was pornographic at the disciplinary hearing. By contrast, the evidence from Ms G and Mr N on this matter was clear and certain. Ms G said that the Complainant confirmed at the investigation that he had sent a pornographic video. Mr N said that no objections were raised to the description of the video as pornography during the disciplinary process.

The Court has difficulty accepting the Complainant’s vagueness about describing the video as pornographic. The Court notes that no objection to the description of the video as pornography was cited as a ground of appeal. TheCourt finds that thedescription of the video as pornographywas not challenged during the investigation, disciplinary, or appeal process. As a result, the Court concurs with the Respondent’s findings that a video of adult content was sent to a work colleague.

In the view of the Court it was reasonable for the Respondent to conclude that, on the face it, the sending of such a pornographic video constituted serious misconduct. The Disciplinary Policy sets out a list of matters that are considered to be Serious /Gross Misconduct, which includes “Harassment and Sexual Harassment”. The Dignity at Work policy states that “Sexual Harassment is defined as any form of verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. The unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material”.

The Court is satisfied that the sending of an unwanted video of adult content to a colleague that caused upset to that person falls within the definition of Serious/Gross Misconduct. Accordingly, the Court must assess whether, in all of the circumstances, dismissal was a proportionate and appropriate sanction. In conducting such an assessment, the Court must assess the conduct of both parties.

The investigation was conducted by Ms G who told the Court that her role was to establish findings of fact and determine if the matter should go forward to a disciplinary process. It is clear that Ms G conducted a comprehensive investigation. She interviewed Ms A, and subsequently held four investigation meetings with the Complainant. Seven employees provided statements which formed part of her deliberations. Ms G found that (i) the Complainant sent a pornographic video to a colleague causing offence, (ii) that he told another colleague Ms P that he would like a fresh wife like Ms A , (iii) that he contacted Ms A despite an instruction not to do so, and (iv) that he sent second video to Ms A on 29 June 2020, despite an instruction to desist from any further contact with her. Ms G did not uphold an allegation that the Complainant had asked Ms A for a hug. Overall, Ms G found that the Complainant’s behaviour was “both highly inappropriate and unacceptable”and breached the Dignity at Work Policy.

Mr N, the decision maker, upheld four allegations made against the Complainant. He found that sending a pornographic video was a serious breach of the Dignity at Work policy and, in light of the impact on Ms A as set out in her statement, determined that the appropriate sanction was dismissal. His evidence was that the sending of the pornographic video was the sole reason for dismissing the Complainant.

The Disciplinary Policy allows the Respondent to commence the process at Stage 5 in cases of serious misconduct.The sanctions set out at Stage 5 are listed as:Dismissal, Demotion, Relocation and Unpaid Suspension. The policy states that “if the offence is a Serious / Gross Misconduct, you may be dismissed for a first offence”. It goes one to state that “the outcome will depend on:- the severity of the issue(s); whether you have received previous warnings; how much relevant training you received; and your attitude conduct or honesty during the disciplinary hearing”.

In coming to his decision Mr N said that he was guided by the investigation report, as the report provided the evidence on which he based his own investigation. He took account of the fact that the video was sent in error, and that the Complainant had apologised for his actions. He acknowledged that the Complainant had a clean service record with no previous performance issues but stated that sexual harassment at work is not acceptable. It may have happened outside the workplace, but there is an obligation to provide employees in work with a safe place to work. He considered the fact that the Complainant had received training and, ultimately, was responsible for his actions. Of the sanctions available, Mr N said that he did not consider transfer or demotion. He said that there were no other security officer roles available. Demotion was not an option, and the Complainant was already on suspension.

Mr M, who conducted the appeal, agreed with the finding that sending a pornographic video was inappropriate behaviour constituting gross misconduct. Mr M said the decision to reject the appeal was his decision alone. In the Court’s view, Mr M took care and diligence in collating the grounds of appeal under 21 headings. His evidence was that the Complainant and his trade union official confirmed that they were happy with his summary of the grounds of appeal ,and the Complainant was given an opportunity to address each ground at the hearing. Before arriving at a decision, Mr N interviewed Mr B, who suspended the Complainant, Ms G, who conducted the investigation, and Mr N, who conducted the disciplinary hearing to clarify matters arising. In considering the level of sanction, Mr M took account of the Complainant’s service and the impact of dismissal on him and the fact that the video was sent by mistake. He did consider relocating the Complainant to another location but ruled it out.

When considering if the sanction of dismissal was a proportionate, the Court must also assess the conduct of the Complainant. It is accepted that the Complainant sent the video in error, and that he was remorseful for his actions. He tried to contact Ms A after his suspension to apologise. The Complainant refuted that he was told not to contact Ms A once suspended. Mr B who suspended the Complainant, was not present at the hearing to counter the Complainant’s evidence on that matter. The Complainant’s evidence that he did not tell a colleague that “he needed a fresh wife like MsA”, was countered by a statement from that same colleague which stated that he did. During the investigation process the Complainant sent a second video to Ms A, after receiving a clear instruction not to do so. It is accepted that the second video was not pornographic.

Although the termination letter issued to the Complainant did not provide details for the reason to dismiss the Complainant on the grounds of serious misconduct, the Respondent confirmed that thesending of the pornographic video was the sole reason for dismissing the Complainant. Accordingly, the Court does not give great consideration tothe conduct of the Complainant as it related to the other allegations made against him. The Court notes that theRespondent’s case is that the Complainant’s responses and explanations were not considered reasonable nor sufficient such as to mitigate his actions. The Court has some sympathy with this position. At the hearing, the Court found the Complainant’s evidence to be contradictory at times, and whenqueried in relation to apparent anomalies in his evidence, the Complainant was frequently evasive and unforthcoming in his replies.

Notwithstanding the evasive evidence of the Complainant at the hearing, certain facts are not in dispute. It is accepted by all parties that the Complainant forwarded a video to an unintended recipient, a work colleague, causing her upset. It is accepted that the video was sent in error, and that the Complainant deleted the video when he realised what had happened.

Once the Respondent received a complaint from the colleague the Respondent rightly treated the matter very seriously. It commenced an investigation into an allegation of inappropriate behaviour. It undertook a comprehensive investigation, disciplinary, and appeals process. Each stage of the process was conducted by a manager with relevant training and in a timely fashion. The Respondentrightly took account of the impact that the video had on the recipient.

In the Court’s judgmentthe procedures followed by the employer were substantially fair. Having considered both Mr N and Mr M’s evidence, the Court is satisfied that it was reasonable to conclude that the Complainant’s actions were bothinappropriate and unacceptable in a workplace”. In such circumstances it wasreasonable for the Respondent to conclude that the sending of a pornographic video constituted serious misconduct.

Proportionality

The Court must assess whether in all of the circumstances of this case the sanction of dismissal was proportionate and appropriate.In considering the question of proportionality, the Court’s attention was directed to a number of cases by the parties. The test for reasonableness was set out in Noritake(Irl)Ltd v Kenna(UD 88/1983) as follows:

• 1) Did the company believe that the employee misconducted himself as alleged?

  2) if so, did the company have reasonable grounds to sustain that belief?

  3) if so, was the penalty of dismissal proportionate to the alleged misconduct?

• “…In assessing the reasonableness of the employer’s conduct in relation to dismissal herein, it seems to me that such an assessment must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response.”

The Respondent asserts that it had no option other than dismissal, yet this does not tally with the evidence of the decision maker, Mr N, whose evidence was that the Complainant was a good employee and that he would re-employ him again. Stage 5 of the Disciplinary Policy sets out alternatives to the sanction of dismissal.While the Court heard evidence that alternative options to dismissal were considered, in the view of the Court no serious consideration was given to the three other options avaiable, namely Demotion, Relocation or Unpaid Suspension.The Court is of the view that a separate business decision by the Respondent’s decision to outsource security roles was an influencing factor in arriving at the decision to dismiss the Complainant.

The Court notes that the Complainant made repeated apologies throughout the process. The Respondent accepted that the Complainant was remorseful. However, in the Court’s judgement insufficient consideration was given to the fact the video was sent in error,the colleague was not the intended recipient, and the recorded statements indicated his efforts to repeatedly apologise for what had happened.

In considering the various cases opened to the Courts, and having regard to the band of reasonableness test, and the facts as set out in this case, the Court does not consider that due consideration was given to alternative options to dismissal.Havingregard to all of thecircumstances, whenbalancing the impact of the Complainant’s conduct on the Respondent as against the impact of the dismissal on the Complainant, the Court is of the view that the sanctionwas disproportionate.

In making this decision the Court notes that the Complainant had 12 years’ service with the Respondent, with no prior performance issues or warnings. The Complainant took full responsibility for sending a video of adult content in error to a colleague. It was accepted by the parties that the forwarding of the video was a genuine mistake. The Complainant made repeated apologies throughout the process. It was accepted that the Complainant was remorseful.

In the Court’s view, the Complainant’s conduct was careless and naíve, but there was no malice. While he displayed a lack of judgement in his conduct during the investigation, in the Court’s view the action taken by the respondent against the claimant having regard to all of the circumstances was disproportionate and a lesser penalty short of dismissal should have been considered and imposed.

Redress

Having regard to the particular circumstances of this case, the Court does not consider reinstatement or reengagement to be appropriate forms of redress. The Court is of the view that compensation is the most appropriate remedy.

The Complainant’s salary with the Respondent was €761 per week for a 45-hour week, giving an annual salary of €39,572. His employment was terminated on 11 September 2020. The Complainant spent from September 2020 until September 2021 in his country of origin after suffering two family bereavements. He gave evidence that he applied for jobs online during this time. The Complainant returned to Ireland in September 2021 and was in receipt of social welfare until June 2022. He secured a part-time security role in June 2022, working 36 hours per week over three days. The hourly rate is €11.00 per hour.

In determining the amount of compensation, which is just and equitable, the Court takes into account financial losses incurred by the Complainant since the termination of his employment and a continuation of that level of loss after he secured employment at a lower rate of pay.

As the Complainant was out of the country from September 2020 until September 2021, he unavailable for work for this period. The financial loss arising from his dismissal therefore relates to the losses he suffered from September 2021, when he returned to Ireland, until 2022 when he secured a role at a lower rate of pay of €396 per week. The Court determines the financial loss of earnings suffered by the Complainant was approximately €34,000. The Complainant is required to demonstrate reasonable efforts to mitigate this loss.

InSheehan v Continental Administration Co Ltd (UD 858/1999) the EAT held as follows: -

• "a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

The Court also has regard to the contribution made by the Complainant to his own dismissal.Having regard to his own contribution to his dismissalthe Court considers that a further reduction of 20% in the amount of compensation to be awarded is just and equitable.

Weighing all of these factors, and having regard to all of the circumstances,the Court determines that the appropriate amount of compensation is €10,200 as just and equitable.

Determination

The Court determines that the appeal is well-founded. The Decision of the Adjudication Officer is set aside. The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
DC	______________________
17 February 2023	Deputy Chairman