The WRC Adjudicator, Pat Brady, centred his decision around the Respondent’s use of CCTV footage to discipline and ultimately dismiss the Complainant and the application of the ‘zero tolerance’ policy.

Facts: The Complainant, Frank Berman, was employed as a bus driver from 3rd December 2018 until his employment was terminated on 4th March 2020. He was employed on a 39-hour working week for €591.60 per week. He claimed that he was Unfairly Dismissed.

The Complainant was the subject of a customer complaint, which he was exonerated, but in the course of viewing the CCTV footage as part of the investigation of that complaint, the Complainant was spotted using or handling a mobile phone while driving, contrary to the Respondent’s regulations. The Respondent had a Zero Tolerance for use of mobile devices while driving and that in all cases it results in termination of employment.

The footage of the Complainant using the mobile device was an hour after the initial incident under investigation and it was alleged that the Respondent had no justification under its own extensive CCTV policy to view this footage and the Complainant was not on notice that it was doing so. The Respondent skipped holding a separate investigation into this allegation. There was also no provision in the Respondent’s CCTV policy for use of CCTV footage in a disciplinary process.

Decision: The Respondent was criticised for skipping the investigation stage of the disciplinary process in circumstances where the source of its evidence was in breach of its own extensive CCTV policy and therefore contrary to fair procedures.

In respect of the Zero Tolerance Policy, the Adjudicator referred to the 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”

The Adjudicator held that the Respondent’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 ‘audi alteram partem’ rule which requires an independent, unprejudiced and fair hearing of all aspects of a case before deciding the outcome. The Adjudicator held that not only was this a denital of the constitutional right to a fair and unbiased hearing but it was also in breach of Clause 6 of standards set out in the Code of Practice – SI 146/2000 which states:

“That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.”

The Adjudicator found that this isolated incident did not result in a breakdown in relationship between the Complainant and the Respondent and therefore saw no reason not to award re-instatement, which was sought by the Complainant. This would result in over a year’s back pay in addition to his job back.

Takeaway for the Employers: This decision highlights the importance of ensuring that CCTV policies includes the right to view to check compliance with policies without advance notice and also to use CCTV footage in a disciplinary process. The decision also seems to put an end to reliance on a Zero Tolerance Policies due to the pre-determination nature of them.

Link  – https://www.workplacerelations.ie/en/cases/2021/september/adj-00028231.html

Author – Anne O’Connell