25/03/2021 Briefing

Perhaps surprisingly given the seriousness of the allegations, and that the complainant himself had sought compensation from the WRC, the WRC in this case held that the issuance of a final written warning and a transfer of the employee to a different client site would have been the appropriate sanction in the circumstances.  It held that compensation was not appropriate redress and the period between the dates of the employee’s dismissal until his re-engagement was to be considered as unpaid suspension.

Background

The complainant was employed since 2017 as a security guard by the respondent security company and placed with a client technology company.  On 22 April 2020, whilst working at the client’s site, he attempted to send a video through Facebook messenger on his personal mobile phone using the client’s guest Wi-Fi. The Facebook messenger group included work colleagues. The video the complainant attempted to send was blocked by Facebook (and so was never received by the group) and his account was suspended for three days.

On 30 April 2020, the client informed the complainant and the respondent’s HR manager that the video in question “contained an image of child exploitation”. The incident was reported by the client to the Gardaí and it requested that the complainant no longer work at its site. The complainant was suspended and the incident investigated by the respondent. The complainant admitted he had attempted to send the video.  The disciplinary procedure was invoked and the complainant was dismissed for gross misconduct on 18 May 2020. The respondent believed that the complainant’s actions had destroyed its trust and confidence in him.

Employee’s Evidence

In his submission to the WRC, the complainant claimed that he was sent the video by a friend and that he had not looked at the video before he sent it to the group. He was therefore unaware that the female in the video could have been underage. The complainant alleged he was not provided with any of the relevant respondent policies prior to the disciplinary process, that the sanction was too severe and that he could have been transferred to another client site.

WRC Decision

Sanction was “too severe”

The WRC held that the decision to dismiss the employee for gross misconduct “was too severe and that a more reasonable sanction would have been a final written warning”. Although the complainant’s conduct was “extremely serious and may possibly be found to be a criminal offence” and it may appear logical to equate such serious and possibly criminal behaviour with gross misconduct, the dismissal was too expeditious (being approximately one month between the incident and the dismissal).

The Adjudication Officer (“AO”) believed that the employer should have accepted the complainant’s explanation that he had made a mistake by attempting to share the video. In addition, she noted, the potentially criminal behaviour was not directed at the respondent employer and that apart from this incident, the complainant was an exemplary worker, with a sense of gratitude for his job and with no motivation to harm his employer.

Unfair process

The AO found that the respondent’s process was unfair on the basis that it should have made a “more robust effort to explain to the complainant the benefit of being represented” by a trade union representative or colleague. The complainant’s contract of employment required him to be a member of SIPTU and he had been advised of his right to be represented but had declined on each occasion.

The AO set out the factors to be considered in relation to the right of an employee to be represented according to the Supreme Court in Burns v Governor of Castlerea Prison  (which related however to the right to legal representation at internal disciplinary meetings):

  1. The seriousness of the case and of the potential penalty;
  2. Whether any points of law are likely to arise;
  3. The capacity of the person to present his own case;
  4. Procedural difficulties;
  5. The need for reasonable speed in making the adjudication;
  6. The need for fairness as between the parties.

The AO noted that the complainant’s first language was not English and that the meetings with the respondent were conducted remotely due to COVID-19 restrictions. The AO found that due to the seriousness of the allegations against the complainant, his lack of capacity to present his own case and the need for fairness, “it would not have been unreasonable for the managers to ask a union official to speak to the complainant to discuss the benefit of representation.” The AO went so far as to state that in her view “the intervention of a skilled representative would have contributed to a different outcome”.

Redress

Although the complainant had sought compensation by way of redress, the AO did not believe that this was appropriate. The respondent was ordered to issue a final written warning to the complainant and to re-engage him.  The period of seven months from the date of his dismissal was to be treated as an unpaid suspension.

Assessment

This decision serves as a useful reminder for employers in relation to the following issues, including the very topical issue of remote investigation meetings and disciplinary hearings.

  1. Potentially criminal conduct will not automatically equate to gross misconduct in the employment context. On that basis, those conducting investigations and disciplinary processes should ensure that no assumptions are made in advance of the final outcome of the process being reached.
  2. A fair disciplinary process is as important as the suitability and proportionality of the sanction when defending any claim under the Unfair Dismissals Acts 1977-2015. As always, employers should ensure that fair procedures are adhered to throughout any disciplinary process, especially in the current climate where the majority of these processes are being held remotely.
  3. Employers should be alert to any potential vulnerabilities of employees going through a disciplinary process such as where English is not their first language and/or where they are not represented. In some circumstances, a representative that speaks the employee’s first language would be of significant benefit during a remote disciplinary process.
  4. Although not called out specifically by the AO, employers should consider in advance how a remote hearing may adversely impact an employee or exasperate any employee specific vulnerabilities. In general there is no legal impediment to investigation and disciplinary meetings being conducted remotely. However employers are advised to consider in advance any potential issues that may arise such as technical issues, communication or language concerns and employee access to suitable remote meeting locations free from distraction or intrusion. This will be of particular importance in relation to employees who have not been working remotely throughout the pandemic as they are more likely to find remote hearings challenging which may ultimately contribute to a finding that the process was unfair.

The authors would like to thank Leah O’Mahony for her contribution to this briefing.