ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005692
Social Community Partnership Company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 15/06/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Location of Hearing: Room 4.02 Lansdowne House
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was employed as an Administrator from 10th October 2001 to 21st October 2016. She was paid €416.00 per week. She has claimed that she was unfairly dismissed. She has sought the redress of re-instatement or compensation.
Summary of Respondent’s Case:
The Respondent became aware that pornographic material was accessed on the computers in the main reception area. There are two computers in that area and can only be accessed by username and password. The Complainant worked in the main reception area. An investigation showed that that the computers had accessed pornographic sites on 7 occasions between 26th September and 26th November 2015. On 27th November a member of management informed the Complainant and another staff member that such material had been found. They were given a copy of the company’s internet policy and grievance /disciplinary policy. An investigation was carried out. Sign in/out sheets identified the Complainant as the only person on duty on 3 occasions when this material was accessed. The Complainant was invited to an investigation meeting on 26th January 2016. She was advised in writing of the allegation against her and her right to representation. She was represented by her SIPTU Official. She denied any involvement in accessing such material. She stated that two other staff members had access to the computers. She also stated that on 15th October she was not present when the site was accessed. The Respondent stated that she had signed in for a full day and was paid in full that day. On three dates that the site was accessed the Complainant was the only member of staff present. The Respondent concluded that the Complainant was the only person that was present on all 7 occasions that the site was accessed. Based on the company internet policy the matter was escalated to a disciplinary investigation. A disciplinary hearing was held on 11thy March 2016 and she was represented by her SIPTU Official. She continued to deny her involvement in this matter. She pleaded that she had gone home sick on 15th October and ‘phone records would support that. The company checked this out but found no evidence or voice messages as alleged. In fact they found evidence of a call made at 1.17pm to a number of an acquaintance of the Complainant. Other matters were investigated whether a virus could have caused this. The company’s IT specialist confirmed that a Trojan virus was not responsible for accessing the sites. The disciplinary investigation upheld the investigation findings. The company found that it was not credible that she was not the staff member responsible for accessing the site. A decision was made to terminate her employment dated 11th May 2016. She appealed the decision on 23rd September 2016. An external panel heard the appeal but upheld the decision to dismiss. The Complainant was paid in full up to the 21st October 2016. It is the Respondent’s position that she was dismissed for misconduct in accordance with Sec 6(4)(b) of the Unfair Dismissals Act. 1977. The Complainant’s actions in accessing these sites which contained violent scenes of non-consensual acts such a rape and forced sex and the abduction of girls in an employment whose purpose is the provision of services to children and families is wholly unacceptable and warrants dismissal. Not only do the complainant’s actions go against the grain of the organisation but has the potential to put at risk the company’s funding relationship with Government services. The Respondent cited the Employment Appeals Tribunal (EAT) decision UD 111/2008 Mullane v Honeywell Aerospace Ireland Ltd and the UKEAT decision Preece v Weatherspoon in support. The Respondent’s actions were what a reasonable employer would do. A full and fair investigation took place and the Complainant’s rights were respected. The assessment of the facts and the decision made took into account the representations made by the Complainant and her representative. She was offered fair procedure throughout. Given the grave and serious nature of the Complainant’s actions which were upheld in the investigation dismissal was deemed the appropriate sanction. She was given the right to appeal and she took up that option and had representation. The decision to dismiss was upheld. This dismissal was both substantively and procedurally fair.
Summary of Complainant’s Case:
Following a routine check of the computers, two of which were at reception it was discovered that one of the computers had accessed X rated sites. The unauthorised access appears to have occurred on the following dates and times
Thurs 26th Nov 2015 at 13.28pm
Thurs 12th Nov 2015 at 15.11pm X
Tues 27th October 2015 at 16.40 pm X
Fri 23rd Oct 2015 at 15.59pm X
Tues 20th Oct 2015 at 14.54pm
Thurs 15th Oct 2015 at 15.17pm
Wed 30th Sept 2015 at 16.29pm
Dates marked X were the ones when the Complainant was the only individual signed into the Centre. An investigation was carried out by MM and she met the Complainant on three occasions. The Complainant was identified as the person likely responsible and she was invited to an initial meeting on 26th January 2016. The Complainant continued to work in the centre up till 10th February 2016. In early January while at work she was given by hand a copy of the investigation findings. She was very distressed at getting this at work. She was advised that a copy had been posted to her home but she never received it. The Complainant strenuously denied and continues to deny any involvement in these alleged activities. The browser history had been erased from the same computer between early January 2016 and February 2016 which related to x rated sites. At the disciplinary hearing on 11th March specific dates relating to the erased browser history was requested but not given due to cost. Therefore she was denied the opportunity to clarify her whereabouts on the dates the browser history was erased. The Complainant stated that everyone at the centre accesses sites on the computer such as Facebook, RTE Player and Catch Up programmes. She reported problem issues with the computer. She stated that not everyone signs in /out at the centre. She stated that on 15th October she went home at 12.15pm and so could not have accessed the sites at 15.17pm. Most people sign in /out when they arrive. The sheet also shows that 3 hours were taken as sick leave that afternoon. There was a ‘phone record of a call made by her at 1.38pm that afternoon as stated. She stated that she was not in work on 22nd October. She stated that there are no secure passwords for the computers and colleagues had access to these computers at reception. Volunteers have unlimited access to the computers as well. It appears that these sites were accessed on days when she had already left the centre.
It is her position that it is not reasonable to conclude that she accessed these sites. The suspension some several months after the issue was raised was unjustified as she did not pose a risk. The Respondent has not established that there were substantial grounds to justify the dismissal. She was left alone in the centre after the allegations had been raised. She was not at work on 15th October as she was home sick. No volunteers were spoken as part of the investigation. She has had 18 years participating in these schemes without any problem. The internet policy does not specify what inappropriate material is. There is no evidence to show that she was the only person to have accessed these sites. The most likely explanation is that Pop Ups occurred which were disregarded by the Respondent. The decision to dismiss was not proportionate. Alternatives to dismissal were not considered. She cited the EAT case UD 582/2001 Mehigan v Dyflin Publications Ltd, Bank of Ireland v James O’Reilly and UD 1447/2014 EAT case John Brown v The Mountview/Blakestown/Hartstown/ Huntstown Community Drugs Team Ltd
She is seeking reinstatement or compensation. She has not worked since. She has looked for work but has been unsuccessful because of the reason for the dismissal. She has applied for 30- positions.
Findings and Conclusions:
I note that Sec 6(7) of this Act provides that the reasonableness of an employer’s conduct is an essential factor to be considered.
Reliance is placed on the decision of the Employment Appeals Tribunal in Hennessy V Read & Write Shop Ltd UD192/1978 “In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to: (i) the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant; and (ii) the conclusion arrived at by the respondent, that on the basis of the information resulting from such enquiry, the claimant should be dismissed.”
In O’Riordan v Great Southern Hotels, UD 1469/2003 the Tribunal set out the appropriate test for determining on claims relating to gross misconduct, stating “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing . The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.
In the EAT case David Mullane v Honeywell UD/1112008 it stated “The Tribunal must decide whether the conclusion that the offending act had been perpetrated by the claimant was reasonable on the balance of probabilities and that dismissal was a proportionate response”.
I note that following a check of its computers it was discovered that x rated sites had been accessed.
I note that the Respondent carried out a detailed investigation and identified the Complainant as a likely person to have accessed these sites.
I note that she was invited to an investigation in writing and given the right of representation,
I note that the Respondent identified 7 occasions where they believed the Complainant was at work when these sites were accessed.
I note that the Respondent identified 3 occasions when the Complainant was the only person on duty in that area on those dates.
I note the conflict of evidence regarding 15th October. On the balance of probability I find the Respondent’s evidence more convincing and so I find that she was at work that afternoon.
I find that the Complainant has not convinced me that others had access to these computers such as volunteers etc .
I find that it is not my role to establish the guilt or not of the Complainant but to establish on the balance of probability that she did access the sites. I also have to decide what a reasonable employer would do in such a situation.
I find that the Complainant was clearly made aware of the allegations against her. She was offered the right to defend herself, the right of representation and the right of appeal.
I find that the Respondent carried out a thorough investigation and disciplinary investigation.
Therefore on the balance of probability I find that the Complainant accessed these sites.
I find that this constitutes gross misconduct.
I find that the sanction of dismissal was warranted.
Therefore I find that the dismissal was substantively fair.
I note that the Complainant was advised in writing of the allegations made against her at the investigation and disciplinary hearings.
I find that she was given the right to defend herself and to representation.
I note that she was represented by her SIPTU Official at all material times throughout the investigation and disciplinary hearing and appeal hearings.
I find that the dismissal was procedurally fair.
In reliance upon the above cited EAT case In O’Riordan v Great Southern Hotels, UD 1469/2003 the Tribunal set out the appropriate test for determining on claims relating to gross misconduct, stating “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.
I find that the Respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the Complainant was guilty of the alleged wrongdoing.
I find that the dismissal was not unfair.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the above stated reasons I have decided that the dismissal was not unfair and that this complaint fails.
Dated: 26th September 2017