Duty manager at leisure centre was unfairly dismissed after 'inappropriate image' found on computer

The duty manager was dismissed for gross misconduct after a colleague found on December 19th 2017 that a photo of a teenage girl dressed in swimwear in the public area of the changing rooms had been downloaded onto a staff computer at the reception desk.

The tribunal heard how duty manager was not the only staff member working at reception at the time.

WRC Adjudication Officer, Ray Flaherty found that the case against the duty manager “was neither reasonable nor robust enough to support a sanction of dismissal”.

He stated: “Therefore, I find that the sanction of dismissal in this case was disproportionate, in all the circumstances and was contrary to fairness and natural justice.”

Mr Flaherty stated that there is a strong sense the duty manager “might have been considered guilty from the moment the image was discovered and that the processes which followed sought to confirm this view”.

Mr Flaherty found it both unreasonable and unfair that the duty manager was required to rebut evidence that was nether robust nor comprehensive, by proving that he did not download the image and, more particularly, that his failure/inability to do so would lead to his dismissal.

Mr Flaherty found that the duty manager “was required to, in effect, prove his innocence, rather than being considered innocent unless and until the Respondent was in a position to furnish evidence which would might reasonably indicate his guilt”.

The duty manager stated that allegations against him were denied in the strongest possible terms and were, from the outset, completely unfounded.

He claimed that the investigation conducted by the leisure company into the events of December 19th 2017 “was completely ham-fisted and haphazard and failed to conclude in a reasonable timeframe”.

The duty manager stated that he was required to provide evidence that he had not done what he was being accused of doing.

He stated that this was completely impossible for him to achieve, particularly in circumstances where the alleged offending image was never produced to him by his employer.

The employer transferred the image onto the USB key which became corrupted and it was not possible to retrieve the image subsequently.

The duty manager was sacked in April of last year and the dismissal was upheld on internal appeal in June 2018.

Mr Flaherty found that that there was not sufficient technical or IT expertise within the leisure company to have carried out the standard of the investigation required to successfully progress a disciplinary process, particularly where issues of gross misconduct and possible dismissal could arise.

Mr Flaherty stated that the Internet history shows activity in the name of an employee who, all parties agree, was not at work on the day in question.

He stated: “In particular, there appears to be activity in the name of that absent employee just prior to and immediately after the downloading of the PDF Image.”

Mr Flaherty also found that it a significant flaw in the leisure company’s case that they were not in a position to provide the duty manager with a copy of the image which they alleged was inappropriate and which he had downloaded.

Mr Flaherty also noted that the statements from the two witnesses, who saw the image, make no reference to the duty manager and gives no indication that they may have considered him responsible for its downloading.

Mr Flaherty also found that there was nothing on the Internet history which directly links the PDF Image to the duty manager.

Mr Flaherty also found that CCTV footage of the reception area in and around the time the image was downloaded, showed that the duty manager was the primary, though not only member of staff at the reception desk during the period in question.