In this unfair dismissal case1, the Workplace Relations Commission ("WRC") has upheld the decision of an unnamed public transport provider (the "Company") to dismiss an employee based in large part on evidence provided by a private investigator.

Background

The employee, a revenue protection officer for the Company, was employed from July 2007. In May 2016, the vehicle on which he was carrying out his duties braked suddenly, allegedly causing him to lose his footing. The employee reported that he struck his head and back on an upright pole and had suffered an injury as a result. After the incident the employee was certified for two days' sick leave. The employee continued to take sick leave for a number of months after this, during which he was in receipt of sick pay. The Company subsequently engaged a private investigator to monitor the employee, who observed the employee driving himself to a gym, using heavy weights at the gym, and running on a treadmill apparently without any ill-effects or discomfort. This all ran contrary to the employee's alleged continuing injuries preventing his return to work.

Following the private investigator's report the Company initiated an investigation into potential abuse of the Company's sick pay scheme (the "Scheme"). A disciplinary hearing was held in September 2016 which concluded that he had abused the Scheme and should be dismissed for gross misconduct. Subsequent appeal hearings upheld this decision and he was ultimately dismissed effective October 2016.

Arguments

The employee took a claim for unfair dismissal to the WRC, arguing in part that his GP had certified him unfit for work and recommended physical therapy at his own discretion. The employee accepted that he drove to the gym but denied using weights and running on a treadmill.

The employee further argued that observing his movements was the private investigator's first assignment since establishing his company and argued that he drew incorrect inferences from his observations. The employee contended that he was not accused of a breach of trust until after his dismissal, and so was not given the opportunity to face this allegation properly.

The Company argued that CCTV footage of incident on board the Company vehicle in May 2017 did not support the employee's contention that he suffered a serious or long-term neck and back injury. The Company decided to engage a private investigator on this basis, and because of the employee's history of absenteeism.

The employee was twice referred to the Company's doctor who advised that lifting weights and running were contrary to physical therapy for such an alleged injury. The Company noted that while breach of trust and confidence was not referred to in correspondence, the decision to dismiss was based on abuse of the Scheme which was a breach of trust and confidence.

Decision

The Adjudication Officer ("AO") stated that the reasonableness of an employer's conduct is of paramount consideration. The AO considered the nature and extent of the enquiry carried out by the employer and the reasonableness of the employer's decision to dismiss.

The AO noted that in cases of gross misconduct, it was his role to determine whether the Company had a "genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing".

The AO found the employee's GP's alleged recommendation of uncontrolled physical therapy to be "most unusual", and stated that although the employee had informed the Company doctor that he was not driving, he was observed driving to the gym. The AO found the private investigator's evidence to be more believable than the employee and found on balance that the employee had been lifting heavy weights and running on a treadmill.

The AO further found that honesty was of particular importance when employed as a revenue protection officer and stated that the Company had discovered a "very serious breach concerning honesty and integrity, trust and confidence." The AO concluded that the dismissal was substantively and procedurally fair.

Analysis

This decision is noteworthy for two reasons. Firstly, the burden is on the employer to justify a dismissal, and in the cases of gross misconduct that burden is arguable even heavier. The employer here followed its procedures and overcame this heavy burden. Secondly, in the High Court case of Sweeney v Ballinteer Community School ([2011] IEHC 131), the High Court was scathing in its comments on the use of a private investigator as well as the methods of that investigator, and employers have been much more cautious in their engagement of private investigators since then. This WRC decision illustrates that there is still a role for private investigators in employment law cases, and that their evidence can still be accepted and indeed can be crucial in such proceedings.