Complainant

Respondent

Parties

John Kirwan

IP Telecom Limited

Representatives

Self-represented 

Gearóid Ó Brádaigh, BL

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-00060175-001

22/11/2023

The respondent is a telecommunications company that provides cloud-based technologies to industrial clients.  The complainant joined the business on September 17th 2019, in the role of sales manager.  He was dismissed on May 29th 2023 when he failed to explain why, on more than 200 occasions between October 2019 and February 2023, he worked from University College Dublin (UCD).  The complainant claims that his dismissal was unfair and that the process that led to his dismissal was also unfair.  It is the respondent’s case that the complainant was dismissed for gross misconduct and that his dismissal was carried out in accordance with the company’s disciplinary procedure and that it was proportionate and justified.

Chronology of Events Leading to the Complainant’s Dismissal

On Friday, February 10th 2023, the complainant went online to join a weekly sales meeting with his manager, Mr Robin Russell.  In a note to the CEO on March 6th, Mr Russell said that the complainant’s video connection during the meeting was poor and there was a lot of background noise.  The complainant eventually dropped the video connection, continuing the meeting by audio only.  The complainant told Mr Russell that he was in the office of a client in Maynooth, County Kildare.  For convenience, I will refer to this client as “Tech Company.”  Mr Russell thought that the background noise was strange and he checked the complainant’s diary and found no entry for a meeting with Tech Company.  When he told the CTO, Mr Brian Chamberlain, Mr Chamberlain was surprised that the complainant was at Tech Company’s office on his own, because they were working together on a project with this client.

On Monday, February 13th, Mr Chamberlain sent an email to his contact in Tech Company asking if they needed help on an issue related to the project.  A few minutes later, the complainant put a diary entry in his calendar, indicating that he was at a meeting with Tech Company on Friday, February 10th.  The contact in Tech Company confirmed that he had a meeting with the complainant, but he did not specify the location.

Mr Chamberlain checked the company’s system log, and discovered that, at the time of the meeting on February 10th 2023, the complainant was in UCD and not in Maynooth.  On February 16th, he confronted the complainant about his whereabouts on that day and the complainant admitted that he was in UCD and not in Tech Company in Maynooth.  He then removed the diary entry.

In his note to the CEO, Mr Russell said that he was concerned about this, because it appeared that the complainant had lied to him, and that he had implicated a client in his deceit.

Mr Chamberlain was assigned to investigate the complainant’s conduct.  On March 15th, he suspended the complainant, pending the outcome of his investigation.  He instructed the complainant to leave his laptop in the office.  Mr Chamberlain asked the complainant to provide a written response to the allegation that he was working in UCD and that he had lied to his manager about his whereabouts on February 10th. 

On March 23rd 2023, the complainant wrote to Mr Chamberlain, setting out his response to the allegation of gross misconduct.  He said that his statement to his manager that he was in Tech Company in Maynooth was “a momentary response to a text which, while incorrect, was due to a multitude of pressures put upon me, some of which we discussed, and was done without thinking while I was on a call.”  The complainant claimed that he was “the victim of systemic bullying” by Mr Russell.

Mr Chamberlain replied to the complainant on March 27th.  He told him that his response did not address “the core issue,” which was that he had misled his manager regarding his whereabouts on February 10th and that he had involved a client in this deception.  Mr Chamberlain went on to inform the complainant that he had reviewed his IP locations and had discovered that, between October 2019 and February 2023, he was in UCD on more than 200 occasions.  He also informed him that a review of his laptop showed that, following the incident of February 10th, he accessed websites with software that would enable a user to conceal or remove their internet protocol (IP) address location.

The complainant replied on April 3rd 2023.  His response may be summarised as follows:

§  He said that his false statement that he was with Tech Company in Maynooth on February 10th was an “off the cuff” response due to being bullied by his manager.  At no stage, while he was reporting to Mr Russell, did the complainant raise a concern about bullying.

§  He said that his false diary entry and its later deletion was “to avoid any further confusion.”

§  He provided no explanation for his attendance without permission in UCD on more than 200 occasions during working hours.  He said that he was “at a loss” regarding the information being requested and the relevance of the request and he said that he considered the production of the information from his work laptop as a breach of his personal data.

§  He said that the searches for software to conceal IP addresses arose from a discussion at a meeting on February 17th with two colleagues. 

On April 14th, the complainant attended what Mr Chamberlain referred to as “an information gathering meeting.”  This was to examine the complaint of Robin Russell regarding the complainant’s whereabouts on February 10th and the subsequent correspondence between Mr Chamberlain and the complainant.  A copy of the transcript of this meeting was provided in the respondent’s book of documents for the hearing.  The complainant did not answer the question regarding the reason he was in UCD apart from saying that he was working there and that his manager knew that he was there.  He named two colleagues with whom he said he had a discussion in the corridor of the office, about how to conceal IP addresses.

Following the meeting on April 14th, Mr Russell confirmed that the complainant has no business relationship with UCD, that he did not give him permission to work from there and that he was unaware, until Mr Chamberlain’s investigation, that he was working in UCD.

Mr Chamberlain also spoke to the two employees who the complainant said were involved with him in a discussion on February 17th about concealing IP addresses.  One of these said that he was on holidays on February 17th and the other recalled a conversation sometime in February 2023 about broadband security and restrictions on certain virtual private networks (VPNs).  This colleague stated that he was not involved in a discussion about IP surveillance or concealing IP addresses. 

On May 2nd, Mr Chamberlain wrote to the complainant and sent him a copy of the transcripts of his conversations with the three named employees and asked him for his response.  The complainant did not reply.  On May 12th 2023, Mr Chamberlain sent the complainant a copy of his report of his investigation.  Mr Chamberlain concluded that the complainant,

“…has to this day not addressed the overall substance or the details of the complaint as set out to him – he has evaded answering questions directly.  He refuses to address the issues that have been put to him during the course of my investigation, primarily that he lied to his manager, involved a partner in his lies, falsified company records and has been spending an inordinate and unapproved amount of time on multiple occasions at UCD during his working day when he should be at his place of work.”

On May 19th 2023, the Finance Director, Mr David McNeany, held a disciplinary meeting with the complainant.  A copy of the transcript of this meeting was provided in the respondent’s book of documents.  The complainant again sought to explain his conduct on February 10th by alleging that he was bullied by his manager.  He said that he did not attempt to collude with Tech Company regarding his whereabouts that day.  Regarding his research on the concealment of IP addresses, he claimed that Mr Chamberlain belatedly included details of this in his investigation and that his report on the issue was inaccurate.  Mr McNeany did not accept the complainant’s explanations and, on May 29th, he wrote to him to inform him that he was dismissed.

The complainant appealed against the decision to dismiss him, and, following a meeting with the CEO, Ms Shena Brien, on June 10th 2023, the decision to dismiss him was upheld.

Provisions in the Complainant’s Contract of Employment and in the Employee Handbook

In his submission, Mr Ó Brádaigh referred to the complainant’s contract of employment and clauses which he said were relevant:

Clause 3.1:  The normal place of work is the company’s headquarters at Park West, Dublin 12.

Clause 8.1:  All absences must be notified.

Clause 11:  An employee may be dismissed without notice for gross misconduct and dishonesty.

Schedule 1:  Hours of work are from 9.00am until 5.30pm.

A comprehensive working from home policy is included in the respondent’s employee handbook.  This provides that, while it is not possible to provide working from home to all staff, there may be occasions when, to complete work, it may be more beneficial to work from home.  The policy states that working from home is entirely at the discretion of the employer and that permission is required in advance.  The complainant never looked for permission to work from UCD and, apart from a mere assertion that he was working from there, he has provided no explanation of any kind for being there.

The employee handbook also contains a policy on dignity at work which includes a definition of bullying and a provision for an investigation into complaints of bullying.  The complainant did not make a complaint about bullying and he never raised any concerns about bullying with anyone in the business.

The respondent’s disciplinary procedure, which is also included in the employee handbook, has a provision, referred to as stage 5, that, “in extreme circumstances of misconduct,” an employee will be suspended pending an investigation into the issue.  It is the respondent’s position that it was appropriate and proportionate to commence the disciplinary procedure at stage 5.

The Reason for Dismissing the Complainant

Referring to s.6 of the Unfair Dismissals Act 1977 (“the Act”), Mr Ó Brádaigh described “the default position” as being that every dismissal is unfair and that the onus of proving otherwise rests with the employer.  The respondent must show that, “having regard to all the circumstances,” the dismissal was justified.  In this case, Mr Ó Brádaigh said that the employer took account of the initial complaint which arose from the dishonesty of the complainant regarding his whereabouts on February 10th 2023 and the further aggravating matters which arose afterwards.  The complainant was dismissed because:

1.      His manager discovered that he was in UCD on more than 200 occasions without notice, agreement or authorisation, when he should have been in his place of work.

2.      To cover up his misconduct, he falsified his work diary by the insertion and then the deletion of an appointment with Tech Company.

3.      He involved Tech Company in this attempt at a cover-up.

4.      He later searched for websites and software that would enable him to conceal his IP location.

5.      At the investigation, he refused to provide any reasonable explanation for his conduct.

6.      He complained that he was the subject of workplace bullying, when he never raised a complaint about this previously.

The respondent’s case is that the complainant’s repeated conduct breached the terms of his contract of employment to the extent that, in its decision to dismiss him, the employer has achieved the objective standard of reasonableness that is required.  Mr Ó Brádaigh submitted that the complainant’s actions in attempting to find software to conceal his location from his employer could reasonably be inferred as an intention to further breach the terms of his contract, and in addition, to further breach the implied terms of trust and confidence in the employment relationship.

Procedural Fairness

Referring to the decision of the former Employment Appeals Tribunal (EAT) in Byrne v Allied Transport Limited[1], Mr Ó Brádaigh said that if any procedural defects are identified in the respondent’s investigation or in its decision to dismiss the complainant, these defects do not render the dismissal unfair.  The decision of the High Court in Loftus and Healy v An Bord Telecom[2] was also cited where Mr Justice Barron stated that, it wasn’t a question of whether the former employees were deprived of procedures to which they were entitled, but,

“…whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish …(the basis of its dismissal) as the whole or the main reason for and justifying their dismissal.”

Summary of the Complainant’s Written Submission

On his e-complaint form, the complainant provided a background to the events that led to his dismissal.  Many of the issues he refers to in his submission are not, in my view, relevant to his dismissal.  He described the culture of the company as “appalling” and he suggested that there was a state of animosity between the directors.  He complained about not getting a pay increase and he referred to an operational matter with a client, and a difference of opinion regarding that issue between him and Mr Chamberlain.  He raised a disagreement he had with the CEO, Ms Brien, about a data protection policy for clients.  In my summary below, I have attempted to confine the narrative to the issues that I consider are directly related to the complainant’s dismissal.

Before his line manager, Mr Rob Russell, joined the company as CCO in September 2022, the complainant reported to the commercial director, who left that summer.  Mr Russell lives in England and travels to work in the company’s headquarters in Dublin two days a week.  From November 2022, the complainant said that Mr Russell “started interacting directly by phone and instant messages” with his direct reports without informing him.  He considered this to be a “concerted effort to bully and isolate me from the rest of the business.” 

The complainant said that he works “a couple of days in the office” and that he attends weekly meetings in client sites and that he works remotely.  He referred to one of the company’s marketing slogans as “work from anywhere,” and he said that, on January 13th 2023, there was a power cut at his home and he worked in a café.  He had a video call with Mr Russell who, he said, “remarked about the décor” and that “he went on about it a bit too much” which made him feel uncomfortable.

The complainant referred to “the incorrect text message” he sent to Mr Russell on Monday, February 13th 2023, in response to a query about his whereabouts the previous Friday.  He had told Mr Russell that he was at a meeting in Tech Company’s premises   He said that, on the morning of the 13th, he was late leaving a meeting on a client’s site and he went to the library in UCD instead of going home to work.  The home address for the complainant in the letters he received as part of the disciplinary procedure is in Dublin 14.  He said that at the time he sent the incorrect text message, he was on another call.  In a conversation with Mr Chamberlain on Thursday, February 16th, he said that he acknowledged his mistake.

The complainant said that when Mr Chamberlain spoke to him the following week, he told him that he noticed that he had been in UCD “a bit before.”  The complainant said that he told Mr Chamberlain that he didn’t need to check the IP logs because he had informed him that he was working from UCD and he reminded him that, on one video call, Mr Chamberlain remarked that the library looked very modern.  He said that his reference to being in Tech Company’s office on February 10th was “a slip of the tongue” rather than “any malicious undertaking” and that it happened because he was multi-tasking at the time and because he was “stressed with the campaign of bullying and intimidation being conducted against me.”  He said that he acknowledged his mistake and apologised.

The complainant referred to being suspended on March 15th 2023 and to his response to Mr Chamberlain on March 23rd.  He said that Mr Chamberlain replied and told him that his response was unclear and that he added other allegations regarding involving a client a cover up and a search for IP addresses.

The complainant said that he replied on April 3rd 2023 and told Mr Chamberlain that he didn’t involve Tech Company in the issue related to his whereabouts on February 10th.  He said that the search regarding IP addresses followed from a conversation with colleagues and a concern among staff that the directors were covertly tracking their personal data.

When he attended the investigation meeting on April 14th, the complainant said that he wasn’t clear what the agenda was or why the meeting was convened.  He got the notes of this meeting on May 2nd at 20.30.  in his accompanying letter, Mr Chamberlain asked the complainant to account for the times that he was in UCD, as revealed by the search of his IP address locations.  Because he had no access to his work diary which was accessible on his laptop, the complainant said that it wasn’t possible to provide any information about why he was in UCD on the dates in question.  He said that his working week was characterised by being in many locations with staff and customers and that the issue of identifying which customers or staff he was in contact with seemed like an impossible task.  He said that he wrote to Mr Chamberlain on May 5th to ask him about the relevance of IP addresses, but he got no response.

On May 15th 2023, the complainant said that he received a copy of Mr Chamberlain’s report and a request from the finance director, Mr David McNeany, to attend a disciplinary meeting.  He claims that this report “bends the truth” and relies on his IP addresses over four years which were as a result of working remotely with the permission of his line manager.

A disciplinary meeting took place on May 19th 2023.  The complainant referred to the fact that Mr McNeany is a part-time finance director who works one day a week for the company.  He said that Mr McNeany was unfamiliar with the company’s procedures and with the details of what had transpired. 

The complainant’s view is that, when he was dismissed on May 29th, a lot of weight was placed on issues that were not “the core complaint or the substance of the complaint.”  He said that he was not aware that remote working would be an issue and no complaint was ever raised about him working remotely.  He said that his manager before Mr Russell joined the company had no issue with him working remotely.  He said that the investigation “failed to adequately explain why a single incorrect text message was determined to be an ‘extreme circumstance of gross misconduct’ as described by the company disciplinary procedure.”  He said that the “core issue” as it was characterised in Mr Chamberlain’s letter of March 27th was “the single incorrect text message” and the allegation of cover-up involving a client.  The complainant said that there was no investigation of this alleged cover-up and no evidence was presented by his employer to back it up.  He claims that this was a fabrication by Mr Chamberlain.

The complainant claims that the company’s disciplinary processes were by-passed so that he could be isolated and to prevent his complaint of bullying being addressed.  He said that an incorrect text message does not meet the definition of gross misconduct.  He submitted that there was a “huge delay” deciding on what action to take regarding this text message and that the “close family and business relationships” made the investigation unfair and not impartial.

In summary, the complainant’s position regarding his dismissal is that,

1.      Mr Chamberlain failed to investigate the core issues or the mitigating factors in any meaningful way.

2.      The substance of the complaint was an already acknowledged incorrect text message and an allegation that the complainant was involved in a cover-up and that he misled his manager about his whereabouts.  The complainant claims that there is no evidence that he involved a client in a cover-up or that he misled anyone about where he was working.

3.      The allegation that he committed “some nefarious conduct in the past” is too vague and contrary to natural justice.

4.      The investigator attempts to suggest that a search about IP addresses is contrary to company protocol.  The provenance of the information and its selective nature is highly questionable.

5.      Mr Chamberlain embellishes this allegation by claiming that software was downloaded.

6.      The complainant claims that he was not offered the opportunity to cross-examine the witness statements of his colleagues regarding the conversation about searching for IP addresses that he said took place on February 17th 2023.

7.      The appeal process was not independent because Ms Brien works closely with Mr Chamberlain.

8.      The decision to determine the acknowledged incorrect text message as an extreme circumstance of gross misconduct was prejudicial to the outcome of the investigation.

9.      The suspension was unwarranted and a sanction in itself.

10.   The investigation was deliberately protracted and delayed.

11.   Previous cases of actual gross misconduct in the company were not characterised as such.

12.   No sanction was considered as an alternative to dismissal.

13.   The decision to undertake the complaint was motivated by the declaration of company wrongdoing some days before the incorrect text message was sent.  The complainant claims that the complaint was a way of dealing with this and to protect the company from a complaint of bullying.

14.   The decision to dismiss him follows a decision by the directors to remove the complainant’s line manager from his role in 2022.

Evidence of the Complainant’s Line Manager, Mr Robin Russell

Mr Russell joined the company in September 2022.  His responsibility as CCO is to manage the commercial aspects of the company’s business, to oversee revenue, profitability and sales.  The complainant, as head of sales, reported to him and he had one other direct report.

Mr Russell referred to the company’s working from home policy which is included in the employee handbook.  Employees may work from the company’s office or from home.  Working from home requires an assessment of the working from home environment which is done by video.  Mr Russell referred to a homeworking risk assessment checklist which was carried out for the complainant to work from home.  Mr Russell said that this was developed before he joined the business and it involves the employee accessing the company’s learning management system and uploading images of their home working environment.  It is a prerequisite for working from home that the employee has a high-speed internet connection.  Mr Russell said that the company’s policy is not that employees may work from anywhere, but that they may work from home.

Mr Russell said that the complainant had three salespeople reporting to him.  He referred to the weekly sales meeting on Friday, February 10th 2023.  He said that the complainant couldn’t use his video and that there was a noticeable noise from his location.  Immediately after the meeting, Mr Russell said that he phoned the complainant and he asked if he was having problems at home again, because there had been a power outage previously.  The complainant said that he was at Tech Company’s office.  Mr Russell said that the initial conversation he had with the complainant was about the issue at Tech Company’s premises.  He said that his concern was, “how do we ensure that customers have access to our products if connectivity isn’t good?”

Mr Russell said that he thought it was odd that the complainant was at Tech Company’s site on his own.  He mentioned it to Mr Chamberlain who also thought it was strange.  There was no calendar entry in the complainant’s diary to show that he had a meeting with Tech Company.  Mr Chamberlain checked and discovered that the complainant had been in UCD on February 10th and not at Tech Company’s premises in Maynooth.

Mr Russell said that he “would not expect him to lie,” but that he then spoke to one of Tech Company’s staff to back up the lie.  Mr Russell said that this client contributes a significant amount of revenue to the respondent’s business.  He considered that the complainant’s behaviour was gross misconduct.

Cross-examining of Mr Russell by the Complainant

In response to a question from Mr Kirwan, Mr Russell said that he didn’t speak to anyone in Tech Company about the fact that the complainant said that he was in their premises on February 10th 2023.

In response to a question from me, Mr Russell said that he told Mr Chamberlain that the complainant was having issues with his connection when he was Tech Company’s premises on February 10th.  Mr Chamberlain could see no reason why the meeting technology wouldn’t work.  Mr Chamberlain also thought it was unusual for the complainant to be in Tech Company’s offices without him knowing about it.  Mr Chamberlain then spoke to the complainant who told him that he knew that he wasn’t there.  Mr Russell said that he knew then that the complainant had lied to him.

Evidence of the Chief Technical Officer, Mr Brian Chamberlain

Mr Chamberlain said that he is one of the founders of the company which was set up in 2010.  He is a member of the board of directors and responsible for the day to day running of the business.  The company provides business telecoms services and his job is to ensure that its products are working for customers.  Mr Chamberlain said that the complainant’s line manager, Mr Russell, reports to the board.

Mr Chamberlain said that the CEO gave him the job of investigating Mr Russell’s complaint that the complainant had lied to him about his whereabouts on February 10th 2023.  Mr Chamberlain said that he has access to all the company’s systems.  He was initially concerned about the technical issue that their meeting product wasn’t working at Tech Company’s premises. 

Mr Chamberlain referred to the policy on home working which arose during Covid-19.  He said that a decision on whether an employee can work from home is decided on following a risk assessment of an employee’s home working facilities.  This was developed with the assistance of a HR consultancy company.  The company brought in experts to train employees to do the assessment. 

On February 10th 2023, Mr Chamberlain said that he had a catch-up with Mr Russell, who mentioned that the complainant had difficulties with the video connection when he was in Tech Company’s office.  Mr Chamberlain thought it was odd that the complainant would travel to Maynooth in the traffic on a Friday afternoon.  He said that Tech Company had an ongoing issue that they were trying to resolve and it didn’t make sense for the complainant to be there without telling him.  Mr Chamberlain said that he checked the IP address log for Tech Company for the time that the complainant said that he was there, and “it didn’t add up.”  The IP log showed that he was in UCD.

Mr Chamberlain said that he sent his contact in Tech Company an email and he asked him if everything was okay.  He told his contact that he heard that the complainant was with them the previous Friday afternoon.  Shortly afterwards, the recipient of the email confirmed that the complainant had been there.  Mr Chamberlain said that he thought that that was a strange response, when it was clear to him that the complainant hadn’t been there.  He surmised that his contact phoned the complainant and then replied to his email to cover for him.

Thirty minutes after he sent the email to Tech Company, Mr Chamberlain said that a diary entry appeared in the complainant’s diary for a meeting on the afternoon of February 10th with Tech Company.  

On Thursday, February 16th 2023, Mr Chamberlain said that he went to the complainant’s office and he asked him about the meeting the previous Friday afternoon.  He said that the complainant talked as if he had been in Tech Company’s office.  Mr Chamberlain said that he told the complainant that he knew he wasn’t there.  Around 40 minutes later, the complainant removed the diary entry for the February 10th meeting from his calendar.

Mr Chamberlain referred to his task to investigate the complainant’s whereabouts on February 10th.  He said that the “Slack” system used by the business has a log of IP addresses accessed by staff.  The IP addresses accessed by the complainant did not show that he was at home, but that he spent “a massive amount of time” in UCD, even prior to Covid-19.  Mr Chamberlain said that he discovered 234 times when the complainant accessed the company’s business systems from UCD.

On March 15th 2023, Mr Chamberlain told the complainant that he was suspended.  He said that the complainant was angry and threatening, saying, “do you really want to do this.”  Mr Chamberlain said that he felt that there had been a serious breach of trust and he wanted to conduct the investigation without the records being contaminated.

When he examined the record of the complainant’s presence in UCD, Mr Chamberlain said that sometimes he was there from early until late in the day, sometimes from 2.00pm until after 5.00pm and sometimes for what appeared like a flying visit.  Mr Chamberlain said that the company’s business should not have been done in a public place.  He said that the company’s information was that the complainant lived in Dublin 14, but it later emerged that he had moved house and that he had not informed them of his new address.

In his letter of March 15th to the complainant, Mr Chamberlain asked him for a written response to the company’s concerns.  He described the complainant’s response of March 23rd as “strange.”  The complainant referred to “systemic bullying” by Mr Russell.  He also alleged that Mr Chamberlain had been on a video call to him when he was in the library in UCD and that he had remarked on the surroundings.  Mr Chamberlain said that he has never seen the inside of the library in UCD and he didn’t make this remark.

Mr Chamberlain said that, compared to the complainant’s shocked and embarrassed response when he confronted him on February 16th, he presented a different response in his letter of March 23rd.  The complainant claimed that the company encouraged staff to “work from anywhere,” but Mr Chamberlain said that this applies to their client’s employees.   

Mr Chamberlain described the complainant’s remarks about Mr Russell as an effort to distract from the core issue, which is set out in paragraph four of his letter to the complainant on March 27th where he said,

“The core issue presented to you was that you had misled your manager in relation to the work you were doing and your work location on 10th February 2023, involved a client in covering up for you and Mr Russell’s concern is that this may not have been an isolated incident and amounted to a breach of trust and honesty.”

Mr Chamberlain said that the complainant provided no response to the additional information which came to light regarding more than 200 occasions on which he accessed the company’s systems from UCD.  Mr Ó Brádaigh asked Mr Chamberlain what his response was to the complainant’s explanation regarding his conduct.  Mr Chamberlain said,

1.      The complainant’s explanation that his statement that he was in Tech Company on February 10th was an “off the cuff” response did not explain what happened.

2.      The explanation that the contact person in Tech Company contacted the complainant after he received the email from Mr Chamberlain on February 13th was not credible.

3.      The discussion that the complainant said that he had with other employees about tracking IP addresses looked like he started to look for ways to hide IP addresses when he knew that Mr Chamberlain could access IP logs.

4.      The two employees that the complainant said he had a discussion with about concealing IP addresses said that this discussion did not happen.  Mr Chamberlain said that he accepts that the complainant had a meeting with the two employees about virtual private networks.

At the investigation meeting on April 14th 2023, Mr Chamberlain said that there were four issues to discuss:

1.      The complainant’s statement that he was in Tech Company’s premises on February 10th when he was in UCD.

2.      The diary entry to back up his fabrication of his whereabouts on February 10th and his subsequent deletion of that diary entry.

3.      The fact that he worked in UCD on more than 200 occasions between October 2019 and February 2023.

4.      His search for software to conceal IP addresses.

Mr Chamberlain said that the meeting was very short, lasting about 11 minutes, with most of the time taken up with him telling the complainant that no decision had been made regarding the outcome of the investigation.

Mr Ó Brádaigh asked Mr Chamberlain about the findings in his report of May 12th arising from his investigation into the complainant’s conduct.  Mr Chamberlain found that,

1.      On February 10th 2023, the complainant was in UCD, but said he was in the office of Tech Company.  This was not an isolated incident and the complainant spent a large amount of time on multiple dates in UCD.  He failed to provide an explanation for his presence in UCD on all those occasions.

2.      On February 10th 2023, the complainant left his workplace at 2.00pm to drive to UCD.  At 3.00pm, at a remote meeting with his manager, he lied about his whereabouts.  He gave no explanation for this.

3.      The following Monday, February 13th, Mr Chamberlain sent an email to his contact in Tech Company.  Shortly afterwards, the complainant put a diary entry in his calendar for the previous Friday, indicating that he was in Tech Company.

4.      At his meeting with Mr Chamberlain on April 14th, the complainant replied “yeah,” when it was put to him that he contacted the person in Tech Company after his discussion with Mr Chamberlain on February 13th.

5.      On Thursday, February 16th when he spoke with him about his meeting in Tech Company, the complainant initially started talking as if he had been at a meeting.  When Mr Chamberlain told him that he knew he wasn’t there, he said that he changed tack and, 10 minutes after he left the meeting, he deleted the calendar entry.

6.      Also, after this meeting, the complainant searched for “how to hide your IP address online” and TOR.  TOR is a network capable of hiding a user’s IP address. 

7.      In his letter of April 3rd 2023, to explain this conduct, the complainant said that he had a meeting with two named employees on February 17th.   He stated that, “the discussion revolved around various matters and one of the subjects which came up was the surveillance and tracking of IP addresses.”  Both employees denied having a meeting with the complainant on February 17th.  One was on holidays abroad at the time.

8.      Mr Chamberlain concluded that the complainant did not address the overall substance of the complaint as set out to him.  He evaded answering questions directly, he refused to address the issues put to him in the course of the investigation, primarily, that he lied to his manager, that he implicated a client company in his lies, that he falsified company records and that he spent an inordinate amount of time during his working day at UCD when he should have been at work.  He decided that the allegations against the complainant were well founded and that his actions constituted gross misconduct.

Cross-examining of Mr Chamberlain

The complainant reminded Mr Chamberlain that, when he met him in the office on Thursday, February 16th 2023, he acknowledged that he had told his manager a lie. 

Mr Chamberlain replied that the complainant was “playing along as if you were at the meeting.”  He said that only when he told him that he knew that he wasn’t in Maynooth, did he say that he wasn’t in Tech Company’s premises.

The complainant asked Mr Chamberlain what gross misconduct he was referring to in the conclusion of this report.  Mr Chamberlain replied, “lying to your manager, lying to me, getting a customer to lie and falsification of the diary records.”

The complainant referred to the letter Mr Chamberlain sent him on March 27th 2023.  He said that there is no reference in this letter to gross misconduct.  Mr Chamberlain said that the purpose of the letter was to ask the complainant to explain why he was in UCD on more than 200 occasions.

The complainant put it to Mr Chamberlain that he did not tell him that working in UCD was a breach of a company policy.  He asked Mr Chamberlain if he had provided clarity for him on the working from home policy and he claimed that, during the investigation, he was not given a copy of the policy.  Mr Chamberlain replied that the complainant signed a copy of the company handbook which contains the working from home policy.

Evidence of the Head of Marketing, Mr Rory Whelan

Mr Whelan gave evidence that he did not have a meeting with the complainant on Friday, February 17th.  He said that he was in the UK on that day.  He said that after a management meeting, he and the complainant and a colleague talked about what was needed for various services, but he said that there was no discussion about hiding IP addresses.

Cross-examination of Mr Whelan

Mr Whelan agreed with the complainant when he asked him if he had a conversation with him while he was in the library in UCD.  Mr Whelan said that he did “not overly” think that this was a contravention of the company’s working from home policy, as long as it was agreed with his manager.

Mr Whelan said that various iterations of the company handbook are produced annually.  He said that employees submit a digital signature to confirm their acceptance of the contents of the handbook.

Evidence of the Network Operations Centre Manager, Mr Dermot Frost

Mr Frost said that, on a regular basis, he and the complainant and Mr Whelan “shoot the breeze.”  He said that they discussed tracking clients from a marketing point of view.  They were interested in how often people accessed the company’s website.  Mr Frost said that he is sure that he remarked that, if they were on a VPN, they wouldn’t be visible.

The complainant didn’t ask Mr Frost any questions.

Evidence of the Finance Director, Mr David McNeany

Mr Ó Brádaigh asked Mr McNeany what his objective was in relation to the complainant.  Mr McNeany replied that he was tasked with finding out why the complainant was working from UCD.  He said that, at the opening of his meeting with him on May 19th 2023, he made it clear to the complainant that the meeting was an opportunity for him to explain his conduct.  Mr McNeany said that the complainant didn’t address the issues in Mr Chamberlain’s report, but he gave three mitigating reasons for his actions:

1.      He said that power issues in his home in January 2023 meant that he had to work in a café.  He said that Mr Russell had issues with this and that this was symptomatic of a broader issue of bullying and harassment.  Mr McNeany said that his concluded that this was “a smokescreen.”

2.      The complainant said that he did not attempt to collude with a customer, but Mr McNeany said that he wasn’t accused of this.

3.      Thirdly, the complainant said that his search of how to conceal IP addresses was included belatedly in Mr Chamberlain’s investigation.  Mr McNeany said that, in his view, it was “more than coincidental” that the complainant tried to find out how to hide IP addresses.

In his letter to him of May 29th 2023, Mr McNeany referred to the complainant’s concerns about how the disciplinary procedure had been initiated, and particularly the commencement of the process at stage 5.  Mr McNeany said he also addressed the mitigating circumstances put forward by the complainant.  He concluded that the complainant provided no explanation for being in UCD on so many occasions, and that this was a contravention of the working from home protocols.  He decided that the timing and manner of the complainant’s later Google searches “cannot be regarded as mere coincidence” and that his account of alleged discussions with colleagues did not stand up to scrutiny.  He concluded his letter by informing the complainant that he was dismissed.

Cross-examining of Mr McNeany

The complainant suggested to Mr McNeany that he remarked that the company wouldn’t have had an issue with him working in UCD if they had been aware that he was there.  Mr McNeany said that this is not an accurate reflection of his position.  He said that the complainant has access to confidential information, he had discussions about clients and about their business issues and he said that conducting business from the library in UCD or from a café is not acceptable.

Evidence of the Chief Executive Officer, Ms Shena Brien

The CEO gave evidence of her meeting with the complainant on June 9th 2023.  The purpose of the meeting was for the complainant to set out the grounds of his appeal against the decision to dismiss him.  Ms Brien said that nothing that the complainant said on June 9th had the effect of changing the decision of Mc McNeany that he should be dismissed.

Commencing his direct evidence, the complainant said that the core issue put to him was the incorrect text message he sent to his manager on February 10th 2023 and the allegation that he involved a client in covering up for him.  He said that he acknowledged that the text message was incorrect and he tried to explain the reason behind it.  He said that he told Mr Chamberlain that he was subjected to harassment and that he “manifested a situation to make it go away.”

The complainant challenged the reference in the respondent’s submission to his working in UCD as “gross misconduct.”  He said that he was working remotely.  He said that he had approval from his line manager to work remotely.  He said that he was never told that working from UCD was contrary to the company’s working from home policy.

Summing up his position, the complainant said that he was dismissed for being absent from work on 200 occasions, when, at the time, he was working remotely.

In response to questions from me, the complainant said that he moved from Dublin 14 to Wicklow in the summer of 2022.  At this point, Ms Carey, the solicitor for the respondent interjected to inform me that the Property Price Register shows that the complainant purchased his house in Wicklow on October 1st 2021.  The complainant said that his house was sometimes noisy and that he told his previous line manager before Mr Russell joined the company in September 2022, that he was working in UCD.

When I asked him why he selected UCD as a place of work, the complainant said that it is a quiet business space and that during Covid-19, there were empty office spaces there.  He said that he is a member of the gym in UCD.

When I asked him why he thinks he shouldn’t have been dismissed, the complainant said that by describing his actions as “gross misconduct,” he has been treated like a “quasi criminal.”  He said that there was no breach of trust because he acknowledged that what he told his manager on February 13th was wrong.

Cross-examining of the Complainant

The complainant agreed with Mr Ó Brádaigh that he received a copy of the company handbook and that he had signed it to confirm that he accepted the contents.  He said however, that he doesn’t believe that the handbook is contractually binding.

Mr Ó Brádaigh referred to the complainant’s letter to Mr Chamberlain dated April 3rd 2023 in which he said that he was “at a loss as to what detailed information you are looking for…”  Mr Ó Brádaigh suggested to the complainant that Mr Chamberlain had explained precisely what he was looking for in his letter of March 27th and that the core issue that the complainant had to address was clearly set out.

Mr Ó Brádaigh asked the complainant if anyone can use the facilities in UCD. He replied that you need a card to get into the book library.  He said that he got a quiet office desk. 

Mr Ó Brádaigh asked the complainant why he went to UCD when he had an office at home and an office in Parkwest.  He replied that the place he worked in in UCD was “remarkably quiet.”  He said that, if he had access to his laptop and his work diaries, he could have explained why he was there.

The complainant agreed with Mr Ó Brádaigh that he was involved in developing the working from home policy.  He said that, when Mr Russell took over from his previous manager in September 2022, he did not tell him that he was working from UCD.

Referring to the back-dated entry that the complainant put into his diary on Monday February 13th in relation to a meeting in Tech Company the previous Friday, Mr Ó Brádaigh said that this entry was “manifestly untrue.”  The complainant replied that he was involved in a discussion about an issue in the company, but not at a meeting.  He agreed that he deleted the entry after his conversation with Mr Chamberlain on Thursday, February 16th.  Mr Ó Brádaigh suggested to the complainant that he deleted it to cover his “smokescreen.”  The complainant disagreed.  He agreed that a named person in Tech Company had “an involvement of sorts” in covering up his whereabouts.  The complainant said that he thinks that this named person phoned him when he got an email from Mr Chamberlain asking about a meeting on Friday, February 10th.  In his email, Mr Chamberlain referred to the complainant being in Tech Company on the afternoon of February 10th.  The complainant said that the employee in Tech Company knew that he wasn’t there and he phoned him to ask him about the email.  The complainant said that, without thinking, the employee acknowledged that the complainant was there.  He said that he told this employee that he “would clear it up” with Mr Chamberlain.

When Mr Ó Brádaigh put it to the complainant that the diary entry was inserted after he spoke to this employee, the complainant said that he couldn’t remember when he made the calendar entry.

After some robust questioning, the complainant agreed with Mr Ó Brádaigh that he had involved Tech Company in covering up his lie to his manager.

Mr Ó Brádaigh went on to put it to the complainant that, when Mr Chamberlain told him that he knew that he wasn’t in Tech Company, his reaction was to search for ways to hide his IP address.  By any objective standard, Mr Ó Brádaigh suggested that this conduct is highly questionable.   He said that an objective person looking at the timeline of events would conclude that this internet search was an effort to avoid being caught.  The complainant replied that he couldn’t go back in time.    

Mr Ó Brádaigh referred to the fact that, five minutes after the person in Tech Company phoned him, he made the false diary entry.  The transcript of the meeting with Mr Chamberlain on April 14th shows that Mr Chamberlain told him that when he confronted him on February 16th and told him that he knew he wasn’t in Tech Company the previous Friday, the diary entry was deleted five minutes after the conversation.  The complainant agreed that that’s what the transcript says.

Mr Ó Brádaigh referred to the evidence of Mr Frost and Mr Whelan to the effect that they had no discussions with the complainant about ways to conceal IP addresses.

Mr Ó Brádaigh remarked that the complainant had been consistently evasive about the reason he worked from UCD and he asked him to explain now why he was there.  The complainant replied, “no, I can’t explain.”

When Mr Ó Brádaigh put it to the complainant that he told “a series of bare-faced lies” to his employer, the complainant replied, “what lies?”  Mr Ó Brádaigh presented what he considered was a list of lies:

1.      Being in Tech Company on February 10th 2023;

2.      Putting a note in his diary to say he was in Tech Company when he was in UCD;

3.      Making an allegation of bullying and harassment against his manager;

4.      Threatening to make trouble for the company;

5.      Alleging breaches of data protection.

The complainant replied that he had made a complaint regarding the company’s treatment of him to the Data Protection Commissioner.

Mr Ó Brádaigh referred to “the totality of the circumstances” which encompasses the initial lie and the false diary entry, the falsification of company documents, ignoring the working from home policy and the Google search for how to hide IP addresses.  In summary, Mr Ó Brádaigh argued that this conduct, in addition to his failure to explain why he was in UCD on 234 separate occasions, justifies the decision of his employer to remove him from his job.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 – 2015 (“the Act”) provides that:

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

Section 6(4)(b) of the Act provides that,

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

As Mr Ó Brádaigh pointed out in his submission, the default position is that every dismissal is unfair until the employer can establish that there were substantial grounds to justify it.  In the case of this complainant, on May 29th 2023, the manager who conducted the disciplinary hearing upheld the findings of the investigation manager and concluded that the complainant’s conduct was a gross breach of trust and confidence, aggravated by his involvement of a client in his false explanation of what occurred.

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

The reasonableness or otherwise of an employer’s decision to dismiss an employee was considered in 2012 in the Circuit Court appeal of the determination of the Employment Appeals Tribunal (EAT) in Allied Irish Bank plc v Purcell[3].  Mr Purcell was dismissed when he looked at the bank accounts of his colleagues and another person who was not a bank employee.  Setting out the approach of the Court to the process of reaching a decision on the appeal, Ms Justice Linnane referred to what is conventionally known as “the British Leyland test[4],” which requires the decision-maker to ask if it was reasonably open to the employer to make the decision it made.  Regarding how the test should be framed, Judge Linnane stated:

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

It is not for me therefore, as the adjudicator in this matter, to consider if the complainant should have been dismissed, but to ask if it was reasonably open to his employer to make the decision it made, or if could they have made a different decision and applied a lesser sanction, or no sanction at all.  Based on the evidence presented to me, I must consider if the decision of the respondent was that of “a reasonable employer in those circumstances in that line of business.”[5]

We learned from the evidence that the unravelling of the complainant’s relationship with his employer has its starting point in the online meeting with his manager on February 10th 2023.  He claimed that he couldn’t use his laptop’s video facility because it wasn’t working in a client’s premises.  This wasn’t true.  When his manager sent him a text message asking him where he was, he replied that he was in the office of the client I have referred to as “Tech Company.”  This was also a lie.  The following Monday, he put a meeting in his diary for the previous Friday, implicating the client in his deceit.  On Thursday, February 16th, he embarked on a conversation with the CTO, Mr Chamberlain, as if he had been in Tech Company on February 10th.  When Mr Chamberlain told him that he knew from the system logs that he wasn’t there, but that he was in UCD, the complainant admitted that he had lied.  By way of explanation, he said that he had sent his manager “an incorrect text message” because he was being bullied.  He then removed the record of the February 10th meeting from his diary.  Later, he searched for “how to hide your IP address online.”

The complainant joined the company as head of sales on September 17th 2019.  The IP logs that showed that he was in UCD on 234 occasions between October 2019 and February 2023 were included in the respondent’s book of papers at the hearing.  Mr Chamberlain’s evidence was that the complainant was in UCD for varying lengths of time during his working day, and occasionally, for “a flying visit.”  During the investigation into this conduct, the complainant never explained why he selected UCD as a work location.  Following the meeting on June 9th 2023, at which the complainant appealed against the decision to dismiss him, the CEO referred to this problem:

“Mr Chamberlain investigated Mr Russell’s complaint and in the course of that investigation discovered that you had been in UCD on multiple occasions during your working day.  This issue was put to you repeatedly, but you failed to provide any explanation for your attendance in UCD.”

At the hearing of this matter, on April 22nd 2024, the complainant held on tenaciously to the mystery surrounding his presence in UCD.  His arguments that his dismissal was unfair may be summarised as follows:

§  He had acknowledged that he sent his manager “an incorrect text message” regarding his presence in a client’s office on February 10th 2023.  He claims that the categorisation of this as “extreme gross misconduct was prejudicial to the outcome of the investigation.  

§  He claimed that there is no evidence that he was involved in a “cover-up” or that he misled anyone about where he was working.

§  He argued that Mr Chamberlain failed to investigate the core issues or to consider the mitigating factors he put forward in his defence.

§  Mr Chamberlain attempted to suggest that a search of how to hide IP addresses is contrary to company protocol.

§  He said that he wasn’t given the chance to cross-examine the witness statements of his two colleagues regarding their statements to Mr Chamberlain concerning an alleged conversation he had with them on February 17th 2023.

§  He argued that his suspension was unwarranted and a sanction in itself and that the investigation was protracted and delayed.

§  He complained that no sanction was considered as an alternative to dismissal.

Findings

The fact that the complainant acknowledged that he lied to his manager did not resolve his employer’s concerns about his behaviour.  This “incorrect text message,” as he simplistically described it, was the tip of the iceberg of conduct which showed that he had little regard for normal workplace protocols.  The most fundamental of these is, tell the truth.  A second is that your employer is entitled to know where you are when you are at work.  The complainant failed to observe these basic tenets of workplace relations and, from his demeanour at the hearing, it seems to me that he considered them to be irrelevant and unimportant. 

What could any employer make of the complainant’s decision to search on Google for ways to conceal his digital location, except that he intended to try to hide his location?  His argument that this wasn’t a breach the company’s IT protocol, is baseless. 

It is a concern to me that, rather than address the behaviour that was causing a difficulty for his employer, in an attitude of retaliation, the complainant sought to accuse his manager of “troubling behaviour.”  I am satisfied that there was absolutely no substance to this allegation.

I find that the conduct of the complainant, his disengagement from normal workplace relations and his unsatisfactory response to the investigation into his conduct, caused a complete breakdown of trust between him and his employer which he made no attempt to resolve.  It is my view that any reasonable employer in the same circumstances would have dismissed him.  I find therefore, that his dismissal for the reasons set out in Mr McNeany’s letter of May 29th was not unfair.  

Was the Procedure Fair?

Aside from the substantive cause of dismissal, the fairness of a decision to dismiss an employee can stand or fall on the reasonable behaviour of the employer during the disciplinary process.  In the same way, an employee is expected to act reasonably during an investigation and to provide truthful explanations regarding the issues being investigated. 

I reject the complainant’s assertion that his employer’s decision to invoke the disciplinary procedure at stage 5 was tantamount to a conclusion that he was guilty of “extreme gross misconduct.”  The complainant’s coupling of the investigation into his conduct with the title of stage 5 of the disciplinary procedure is contrived and intentionally distracting.  It is apparent from the handling of the investigation, that Mr Chamberlain gave the complainant every opportunity to explain his conduct and the reason for his presence in UCD.  At the disciplinary stage of the process, Mr McNeany repeated that invitation, but he also failed to achieve a satisfactory response.  Even at the end of the process, there was no finding of “extreme gross misconduct.”  Rather, Mr McNeany concluded but that he had committed “a gross breach of trust and confidence.”

I accept the complainant’s argument that the fact of suspension carries with it some association with perceived wrongdoing.  It is my view however that the complainant’s attempts to hide his IP locations after admitting that he was not at the client’s premises on February 10th made his suspension necessary.

I reject the complainant’s assertion that he was not permitted to cross-examine the witness statements of his colleagues in relation to his contention that he had a meeting with them on February 17th 2023 about concealing IP addresses.  When the complainant received the transcripts of Mr Chamberlain’s discussions with these two employees, he did not respond. 

I find the complainant’s argument for a reduced sanction to be inconsistent with his assertion that he had no case to answer in the first place.  He minimised the gravity of his conduct and claimed instead that his only wrongdoing was “an incorrect text message” to his manager.  It is my view that the complainant’s attendance at a location that was not his place of work, his attempt to conceal the record of his location and his failure to explain why he was there so often all contribute to a sundering of the necessary relationship of trust between him and his employer.  I agree with the decision of the CEO in her appeal findings that the decision to dismiss the complainant in these circumstances was a proportionate sanction.

Conclusion

Based on the evidence presented to me at the hearing of this complaint, I am satisfied that most reasonable employers in the same circumstances would have dismissed the complainant.  I find that, in all respects, the procedure that ended with his dismissal was consistent with the standard of fairness set out in the WRC Code of Practice on Grievance and Disciplinary Procedures in Statutory Instrument 146 of 2000 and in accordance with the respondent’s own disciplinary procedure.

I have concluded that the decision of the respondent to dismiss the complainant was not unreasonable and I find that the process was fair.  On this basis, I decide that the complaint under the Unfair Dismissals Act is not well founded. 

Unfair dismissal, conduct, working from home, breach of trust