An Unfair Dismissal’s case heard in the Workplace Relations Commission (WRC) last September, where a bus driver was dismissed for using a mobile phone, is once again a stark reminder to employers of the importance of procedure and having robust policies in place that are shared and understood by staff. It also highlighted the importance of not deviating from company policy, the importance of fair procedure and the risks of introducing a ‘Zero Tolerance Policy’.
The WRC found that the employee was unfairly dismissed after he was observed using a phone on CCTV, following a complaint from a member of the public. Initially, the respondent was exonerated, but following the CCTV viewing, the employee was brought to discipline. The WRC Adjudicator ordered that the employee be reinstated to his position.
The WRC found that the employee was unfairly dismissed after he was observed using a phone on CCTV, following a complaint from a member of the public. Initially, the respondent was exonerated, but following the CCTV viewing, the employee was brought to discipline. The WRC Adjudicator ordered that the employee be reinstated to his position.
The Company for which the employee works, has a ‘Zero Tolerance Policy’ for the use of mobile phones while driving. The employee was brought to discipline and subsequently dismissed. The employer relied heavily on the CCTV footage. The employee claimed the use of the CCTV was in breach of GDPR and objected to the use of the CCTV in this case. The employee highlighted that the Company’s policy on CCTV did not allow for CCTV to be used for these purposes. The policy states that personal data will not be processed or viewed unless there is a request for the images. The adjudicator concluded that the images that led to the employee’s dismissal were viewed in ‘happenstance’
In relation to the Company’s Zero Tolerance Policy, the Adjudicator, Mr Brady, referred to a Labour Court Recommendation under the Industrial Relations Acts in Dublin Bus v. NBRU and SIPTU LCR 21293 (2016), which was in respect of the bus company’s proposed policy on use of mobile devices. In that case, while the Labour Court found that drivers using such devices while in charge of a company vehicles, were putting their continue employment at risk. It stated:
“The Company must when investigating any incidence of alleged breach of the impugned policy, comply fully with the terms of its procedural and disciplinary procedures and the terms of all relevant employment legislation. Furthermore, any sanction it decides to take against anyone found to have infringed the policy, must be informed by the facts and circumstances of the case, be measured and proportionate and satisfy the tests set out in all relevant employment legislation”.
Mr Brady stated that the Company’s ‘Zero Tolerance Policy’ constitutes prejudgement in respect of both guilt and of sanction. He held that this breached one of the cardinal principles of fair procedure.
The key lessons for Employers
The key lessons for Employers
- Employers must follow proper procedure. There was no investigation hearing. This step was missed, and the employer proceeded straight to a disciplinary hearing, which was criticised by the adjudicating officer. Every employee has the right to fair procedure which includes investigation, disciplinary hearing, and appeal.
- Employers must follow their own policies & procedures. The Company breached its own policy on how CCTV can be used. The adjudicating officer said that while the WRC has no remit in relation to the breach of data protection, the operation of fair procedures has as one of its central principles, that the employer will follow and respect its own policies and procedures, which didn’t happen in this case. There was no provision in the Company’s policy to use CCTV as part of the disciplinary process.
- Employers must be aware of the risks of ‘Zero Tolerance Policies’. Mr. Brady held that that the Company breached a key principle of fair procedure – the ‘audi alteram partem’ rule which requires an independent, unprejudiced, and fair hearing of all aspects of a case before deciding the outcome.
LINK TO CASE
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