Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Patsy Gallagher Gallagher & Brennan Solicitors

Avril Daly Mason Hayes & Curran

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act 

CA-00054924

8th February 2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The worker submitted that there were a number of issues with the dismissal process which was undertaken by his employer. He stated that prior to joining the company he was required to go through a background check with a third party. He stated that he submitted all the information in relation to the background check and noted that there was mention of and reference to his ongoing legal issue. He said that this was not hidden from his perspective employer.

The worker noted that he wanted to make sure that there were no issues with the contents of the report and so contacted the individual responsible for onboarding. He got a confirmation that his background check was completed and that there were no issues.

The worker noted that his legal issues resulted in his conviction for an offence on 2 February and that this conviction was prior to his starting employment on 7 March 2022.

The worker noted that he did not have any conviction or issue during his time working for the employer and noted that the meeting to which he was invited was simply indicated to him as a “catch up meeting". The worker noted that during the meeting he was given no time to respond in an appropriate manner.

He appealed his dismissal and the employer confirmed that there was an oversight regarding the background check. The employer confirmed that they had amended their procedures for conducting background checks but that his dismissal still stood.

The worker suggested that he was not dismissed in a fair manner.

The employer is a globally recognised e-commerce business and operates a call centre in Ireland employing over 1000 employees. It was noted that the worker was employed in a remote customer service position. The role involves reviewing customer concerns and appeals and providing mediation and conflict resolution to clients. The job specification notes that the jobholder is required to build trust, educate and create a great experience despite delivering difficult messages.

The employer noted that the contract of employment contains reference to offences and notes that “employment with the company is at all times subject to you not becoming involved in any criminal activity or being convicted of a criminal offence other than a summary road traffic act offence or an offence which in the reasonable opinion of the company does not affect your position”.  The contract further notes that in the event that “while in employment you become convicted of a criminal activity, disciplinary action, up to and including dismissal may be taken.”

The employer noted that some nine months after the complainant started his employment, it received information that the worker was a convicted sex offender and had upcoming court cases. The e-mail indicated that a person with the same name as the worker’s original name was the subject of a criminal investigation involving accessing and downloading child pornography to which the person had pled guilty and was awaiting sentencing.

The worker was called to a meeting in January 2023 where the allegations were put to him. He confirmed the allegations related to him and that he had been convicted of downloading and possession child pornography.

As a result of the conviction the decision was taken to dismiss the worker. He was afforded the opportunity to appeal the decision. The worker appealed the decision to dismiss him on three grounds.

1. that he was told his background check was complete and nothing further would arise
2. That conviction occurred prior to the start of his employment, and
3. That the dismissal meeting was not conducted and arranged in a satisfactory manner.

The employer noted that although he was not given prior notice of the meeting, it would not be unusual in the circumstances face conviction. Once he confirmed that he had a conviction, it was not necessary to conduct any further investigation. The employer noted that who was offered the opportunity to appeal but provided no information as to why his dismissal should not stand.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The employer suggested that it exercised its right to dismiss the worker once it became aware of his conviction for accessing and downloading child pornography. When the allegation was made, although anonymously, it put it to the worker who confirmed that he pled guilty to and was convicted of accessing and for downloading child pornography.  The worker was summarily dismissed based upon his admission. He was provided with a paper-based appeal and following receipt of an appeal, the decision to dismiss was upheld.

The worker suggested that he had fully disclosed on material facts in advance of his employment and that he was not afforded fair procedure in relation to his dismissal he noted that he was not advised that he could be accompanied to the meeting.  He noted that the employer accepted that they had not followed procedure but still upheld his dismissal.

In response the employer noted that this was outside normal procedure and once the confirmation of the conviction was given to them by the worker an investigation was not deemed necessary. The employer noted that the worker was paid in lieu of notice which was not strictly necessary.  The employer noted that it put measures in place to ensure that this type of situation did not arise again.

The worker confirmed that he had changed his name and that the newspaper article referenced referred to him.  He noted that his most recent conviction was on 2 February 2022. He further noted that he had made reference to ongoing legal issues in the pre-employment checks.   Prior to his employment but after pleading guilty to the offences, he was provided with a copy of the pre-employment report.  He noted that he “made sure to check all contents and mentions within the report, I could clearly see there was mention and reference to my ongoing legal issue, this was not at any stage hidden from my checks”.  However, at that time, it was no longer an ongoing legal issue as he had pled guilty at this time.  He emailed the person responsible for his onboarding “to seek clarification that (the employer) are satisfied with the checks” but did not disclose either his name change nor his guilty plea.  This undermines his stance that he had fully disclosed material facts and appears to be somewhat disingenuous.

Once the employer became aware of the conviction, the worker was summarily dismissed.  He was provided with a written avenue for appeal.  The dismissal was upheld.

I note that the contract of employment clearly makes reference to consideration of offences and to convictions but does not provide a time frame for those convictions to be taken into consideration.

Industrial Relations Act – Summary Dismissal – Pre-employment checks – disclosure of material facts – period of consideration of offenses.