A MAN WHO claimed his privacy was breached after his employer covertly recorded him siphoning off diesel from the fuel tank of a truck has lost his unfair dismissal case at the Workplace Relations Commission (WRC).

Despite working in the job for almost 12 years, and claiming that he was siphoning off the fuel because of a leak, his employer found the waste collection worker to be guilty of gross misconduct and dismissed him.

In its adjudication, the WRC said that there are very limited circumstances when covert surveillance can be justified if the behaviour potentially constitutes a criminal offence.

Video footage

The man worked for this employer from 10 January 2005 to 20 December 2016.

He was accused of siphoning off diesel from the truck he drove, when it was parked at his farm. At a disciplinary hearing on 6 December 2016, he was shown footage from a secret recording made using surveillance equipment placed on the truck.

The worker said he siphoned off the fuel from the truck because there was a small leak at the top of the fuel tank and he wanted to avoid it spilling in his yard. He also said he subsequently replaced the diesel.

It was his assertion that he gave a full account of why he’d done it, and that after his long years of service it didn’t warrant a dismissal.

Furthermore, he said that using covert surveillance as a means to sack him was a breach of his privacy, and any evidence gathered in this way should be ignored.

Matter referred to gardaí

In its defence, the employer said that the worker’s contract of employment stated that it had the right to terminate his contract with immediate effect if he committed “an act of serious dishonesty – e.g misappropriate monies and/or property from your employer… This will most likely result in a prosecution.”

Having already had concerns about how much fuel the worker was using, the employer installed a camera on the truck which focused solely on the fuel tank.

It was the employer’s assertion that while the recording showed him siphoning off the diesel, it never showed him replacing it.

It said the worker said he’d disconnected the battery to the camera when he replaced the fuel. However, records show the battery was never disconnected as a signal is sent to an external computer when that occurs.

Furthermore, it was claimed that any leak caused would not have been substantial.

On 21st December, the matter was referred to gardaí and the employer said it had ample grounds to dismiss the man following its investigation.

Findings

In its findings, the WRC cited a case highlighted by the Data Protection Commissioner back in 2007 as relevant.

It was a case where a hotel used covert surveillance to dismiss an employee over concerns it had about cash handling. The commissioner found that the hotel had acted wrongly in how it had handled the dismissal.

It did, however, note: “The use of recording mechanisms to obtain data without an individual’s knowledge is generally unlawful.

Such covert surveillance is normally only permitted on a case by case basis where the data is gathered for the purposes of preventing, detecting or investigating offences, or apprehending or prosecuting offenders.

The WRC found it evident that “there are some instances, albeit narrow, when covert surveillance may be justified where the behaviour, if proven, may be an offence”.

As the matter was referred to the gardaí, and the employee did confirm he had siphoned off the diesel, the WRC said this was one of those instances.

It noted: “Having reviewed the evidence presented I am satisfied that the respondent behaved reasonably both in its investigation of the incidents, the conclusions reached in that investigation, and in its application of a disciplinary process and I therefore conclude that the dismissal was not unfair.”

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