Elton Walker v Bausch&Lomb Ireland (respodnent)
| Jurisdiction | Ireland |
| Judgment Date | 01 April 2009 |
| Judgment citation (vLex) | [2009] 4 JIEC 0103 |
| Date | 01 April 2009 |
| Court | Employment Appeal Tribunal (Ireland) |
Employment Appeals Tribunal
EAT: Elton Walker (claimant) v Bausch&Lomb Ireland (respodnent)
Unfair Dismissal - Use of internet in workplace - Termination of employment - Dismissal for gross misconduct - Fair Procedures - Posting of material on company intranet - Whether employee unfairly dismissed - Whether grievance procedure adequate - Unfair Dismissals Acts, 1977 to 2007.
EMPLOYMENT APPEALS TRIBUNAL
| CLAIM OF: | CASE NO. |
| Elton Walker, 3 Newports Terrace, Waterford -Claimant | UD179/2008 |
against
Bausch & Lomb Ireland, 25/28 North Wall Quay, Dublin 1 –Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
| Chairman: | Mr. S. 6 Riordain B.L |
| Members: | Mr. M. Forde |
| Mr. J. McDonnell |
heard this claim in Waterford on 22 January 2009 and 1 April 2009
Facts The claimant was an operator with the respondent. There had been an allegation that the claimant had been the author of a message displayed on the company's intranet system about forthcoming job losses. The respondent contended that the incident in question had led to industrial relations unrest and as a result they carried out an investigation. Eventually the respondent identified that the claimant might have been responsible for the incident and interviewed him a number of times. The respondent came to the reasonable belief that the claimant was responsible and he was dismissed. The claimant alleged that he was unfairly dismissed, that fair procedures were not followed, that any allegations against him were unproven and that, even if proven, would not have warranted dismissal. The respondent in evidence stated that there was not an appeal procedure and that it was not part of the respondent's grievance procedure. On behalf of the claimant it was contended that the claimant had nearly fifteen years' service but was dismissed for one alleged offence. The evidence in question fell far short of what was needed to show who had placed the message. The claimant's representative wrote to the respondent seeking full particulars of the allegations and the respondent wrote back saying that it would not talk to the claimant's representative. At the hearing one of the witnesses on behalf of the respondent agreed that there was no direct evidence linking the claimant to the intranet entry and that, prior to this incident, there was no record of earlier interference with the intranet and it was not possible to determine the extent of any such interference.
Held by the Tribunal in finding in favour of the claimant. The onus was on the respondent company to establish that the dismissal of the claimant was not unfair having regard to the provisions of the Unfair Dismissals Act, 1997 to 2007. The Tribunal was satisfied on the basis of the evidence that the investigation was both thorough and fair and that the conclusion that the claimant had placed the offending message on the respondent company's intranet was, on the balance of probabilities, reasonable. The Tribunal was also satisfied that all the crucial evidence collected was given by the respondent to the claimant (directly or through his union representatives) throughout the process. The Tribunal did not, however, agree that dismissal was the appropriate sanction arising from the incident. There was no evidence that the internet policy was ever seen by the claimant. Very few staff actually saw the message in question and the matter was very quickly sorted out with the union and with the local media without any damage to the company. Most reasonable employers would have been more disposed to a financial penalty/suspension plus a final warning rather than the ultimate sanction of the dismissal a good employee with 15 years experience. In many respects, the claimant was, unfortunately, the author of his own misfortune. The Tribunal would award compensation in the sum of €6,500.
The claimant was an operator with the respondent whose employment began on 10 May 1993. He alleged that he was unfairly dismissed by letter dated 5 February 2008, that fair procedures were not followed, that any allegations against him were unproven and that, even if proven, would not have warranted dismissal.
The respondent contended that the decision to dismiss had been fair in all the circumstances and that the decision had been in keeping with the requirements of the unfair dismissals legislation on both substantive and procedural grounds.
At the Tribunal hearing the above dates were agreed, it was stated (by the respondent's representative) that the claimant had been paid in lieu of notice and the claimant's gross weekly paywas agreed by the respondent's representative to have been Eur. 767.21.
After the Tribunal asked if the parties wanted to make opening submissions the
respondent's representative replied that the respondent had internet that could be accessed and also had anintranet site (to give information to employees) which could be accessed by any employee. Therespondent had about five thousand employees in Europe. There were 1400 employees in Ireland.There were four hundred pcs (personal computers) on the industrial estate where the claimant hadworked.
The Tribunal was furnished with a copy of a page welcoming people to the respondent's European intranet. The respondent's representative told the Tribunal that nothing could be changed on thispage except that there was a gap where the welcome message was displayed. The respondent's management had not known this but found out that a change could be made because on 4 December2007 the abovementioned intranet page contained the following message: “500 jobs to be gone atWaterford plant before end of first quarter 2008”.
This caused industrial relations difficulties for the respondent. The respondent started an investigation, which, it was submitted, was thorough. Some thirty-eight people were interviewed. The respondent identified the two people who would be nearest the relevant pc in a particular part of the plant. They were the claimant and a female colleague (hereafter referred to as E).
The Tribunal was now referred to a diagram showing where E and the claimant sat on Lines 4 and 5. Once per hour, the claimant would need to go to Area (Line) 4 and once per hour E would need to go to Area (Line) 5. Twice per shift, when E was on a break, the claimant would have cause to go to E's pe on-Line--5.--All changes-were-made- to-this -pc--(hereafter referred to as PC5)-including -- changes, which the claimant admitted. No changes were made to the other pc (hereafter referred to as PC4).
The respondent's representative asked the Tribunal to draw its own conclusions as to why the claimant had made changes to PC5 rather than PC4. The claimant was proficient in pc skills andhad used PC4 to access intranet and internet sites regarding his own non-work interests. The claimant used PC5 to make web-page changes. He admitted making changes (but not the particularone that was before the Tribunal) and showing them to other employees. There was no suggestionthat anyone other than the claimant had made changes in the welcome-message bar.
The respondent found out on 5 December 2007. The claimant changed his story a number of times. The first time, the claimant led the respondent to believe that he did not know how to do this and that he hoped the person would be caught. The claimant also misled the respondent about what he had done on his own pc.
The respondent representative indicated that the claimant had acknowledged on 13 December seeing messages on the intranet. One referred to a manager (MH) and said that MH had got a Eur. 250kpayoff when leaving. This message was changed to say that another person (TK) would get MH'sjob. The claimant referred to a message about another person (MA). The content was vulgar. The claimant said that he had seen this and had taken it off. No one else had seen this. A fourth messagecontained references to a personnel manager (hereafter referred to as VB). The fifth was about fivehundred jobs lost.
The claimant subsequently acknowledged that he had put up messages and changed messages. He acknowledged a message about VB. No-one had seen the message about MA. There was no evidence that anybody else had put a message on the welcome bar. The claimant denied at first but “piecemeal” he made various admissions having at first denied being able to do this.
After the message about the future loss of five hundred jobs had resulted in a serious industrial relations issue there was a full investigation. The respondent came to the reasonable belief that the claimant was responsible and that the dismissal was fair.
Asked if there had been an appeal, the respondent's representative replied that there had not been one and that it was not part of the respondent's grievance procedure.
Replying to the respondent's representative's submissions, the claimant's representative said thatthe claimant had nearly fifteen years' service but was dismissed for one alleged offence on 4 December 2007. This was the only reason in the dismissal letter. The evidence fell “way short” ofwhat was needed to show who had placed the message. The respondent's procedures were unfair.The claimant consulted his representative who wrote to the respondent seeking full particulars ofallegations and evidence. The respondent wrote back saying that it would not talk to the claimant'srepresentative.
The claimant's trade union said to the claimant to go with his trade union or with his solicitor. When the respondent wrote back and the union would not go with him the claimant went with the option that he did not want. The claimant's representative said that a recent P.I.A.B. case, which had-goneto-the-Supreme-Court; was relevant - -
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