EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD887/2014
CLAIM(S) OF:
Sigitas Mezanec
Claimant
against
NVD Limited T/A NVD
Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Ms S. Kelly
heard this claim at Wexford on 25th August 2015, 4th May 2016 and 12th July 2016
Representation:
Claimant: Ms. Ger Malone, SIPTU, Liberty Hall, Eden Quay, Dublin 1
Respondent: Mr. John Farrell, IBEC, Confederation House, Waterford Business Park, Cork Road, Waterford
Respondent’s Case:
The respondent loads cars at the point of entry into the country and transports them to various companies for distribution. The claimant was employed by the respondent as a loader/HGV driver from 13th February 2008 until he was dismissed on 13th February 2014.
The person (DC) who made the decision to dismiss the claimant gave evidence to the Tribunal. DC was the HR Manager of the respondent at that time. The decision to dismiss was based on the fact that the claimant had shared a photo online of one of the respondent’s transporters incorrectly loaded along with a comment by the claimant in his native language. This photo and comment was shared on what was described as a chat room for car transportation drivers.
DC told the Tribunal that there was an Internet Policy within the company which prohibited the posting online of images of company property. This policy was issued to employees by post to their home addresses on 13th February 2013 but it was not sent to the correct address of the claimant as he had changed address prior to this date. Notwithstanding this DC maintained that the claimant was well aware of this policy as he had posted footage on U Tube prior to the implementation of the Internet policy which led to DC informing the claimant that he must not post anything to do with the company without the company’s permission. In fact it was the posting of this footage (even though the company agreed that it was a good thing) that led to the introduction of the Internet Policy.
When DC learned of the posting online by the claimant of another photo and comment he called the claimant to a meeting on 10th February. This item had been posted on 7th February 2014 and DC had phoned the claimant on that date and asked him to remove it which the claimant did immediately. At the meeting of 10th February 2014 the claimant was placed on suspension and at a further meeting on 13th February 2014 the claimant was dismissed by DC. It was DC’s position that this was gross misconduct and that he had no alternative but to dismiss the claimant.
The claimant appealed the decision to dismiss him and DC sat in on the appeal hearing as note taker. The decision of the person hearing the appeal was to uphold DC’s decision to dismiss the claimant.
On the second day of the hearing the Managing Director (AB) gave detailed evidence of the respondent’s client and competitor figures, the quarterly and annual audits carried on in the company and the award the company had received. AB explained to the Tribunal that he held the appeal hearing with the claimant.
On the 21st February 2014 the claimant submitted a letter of appeal detailing five reasons as follows:
1. “The social media policy was not received by me as my address had changed, even though office staff had been informed.
2. Although a previous upload was discussed with me, which the company agreed was acceptable, I was not told that I could not upload further videos/pictures as DC (named) implied. No written confirmation of this was communicated.
3. There was no mention of a social media policy in the handbook that I signed when my employment with the company began.
4. English is not my first language and no alternative was offered to me.
5. The new social media policy clearly states the “Employees should not upload or disclose information with ANY REFERENCE to the business. Yet other staff members have previously done this with no form of disciplinary action taken.”
The appeal hearing took place on the 26th March 2014 with AB, the Human Resources Manager (DC), the claimant and his Union Representative (KC) in attendance. (The minutes of this meeting were opened to the Tribunal in full)
On the 2nd April 2014 AB submitted his decision to uphold the dismissal, stating three facts upon which his decision was based. Those three facts are as follows:
1. “I am satisfied that the purpose of a previous meeting with DC (HR Manager) was to counsel you and inform you that you must receive permission before referring to any company related material on any internet based media site. As a result of this meeting, you were the first staff member to be informed of our new social media policy as your actions triggered the design and implementation of the new policy. You ignored this instruction.
2. While English is not your first language, you are fluent in the English language and have never had any problem understanding it to date. I would remind you that I have always checked for your understanding in previous meetings and discussions and on each occasion you have assured me there was not a need for further clarification.
3. I do not accept that the text (in Lithuanian) which accompanied the photograph was intended for others to interpret as the opposite of what it meant. You stated that it translates to “this is how to load cars from the factory”. This use of language is very clear to me that if I were the owner of this car (i.e. our customer), I would be extremely concerned. I cannot employ staff who jeopardise our business in this way."
In cross examination AB stated that the claimant was well aware of the company policy on social media. The previous year a video clip the claimant had downloaded in respect of loading a vehicle transporter correctly was brought to his attention. It was decided, having seen the video and discussed the issue that positive or negative images could not be uploaded in future concerning the respondent company and/or its customers and the new policy was introduced. The claimant had been informed verbally but AB agreed the claimant may not have received the policy to his home address as he had moved location.
AB agreed there had been no previous issues with the claimant and he had been a “better than good performer”, a competent driver/loader of vehicles, always helpful, had good attendance and generally an excellent worker.
AB explained, when asked, that the reason for the delay in hearing the claimant’s appeal to his dismissal was due to extreme flooding on their premises which took precedence to rectify at the time.
AB refuted that the claimant’s decision not to sign a new contract of employment had any bearing on his decision to uphold the decision to terminate the claimant’s contract. Seven employees were still employed under their original contracts.
On the third day of the hearing the Operations Director JB gave evidence. He told the Tribunal that he became involved in this matter on the 7th of February 2014 when DC contacted him and informed him about the posting on social media.
He attended a meeting with DC and the claimant on the 10th of February 2014 when the claimant was suspended with pay. A second meeting was held on the 13th of February 2014 when the claimant was dismissed for gross misconduct. A letter of dismissal was submitted to the claimant stating:
“… The purpose of the meeting was to communicate the disciplinary action that will be taken against you following last week’s incident when you posted comments on a photograph on a social media website which related to a poorly secured vehicle on a (respondent named) car transporter.
Following an investigation, the company has viewed your actions as gross misconduct. Your actions compromised our company values and were not in the best interests of the company or its customers. You have damaged the company’s reputation and future relationship with our customers. Your behaviour and poor judgement cannot be excused under any circumstances. (Respondent named) has a strict policy regarding social media usage and you were counselled about your usage in the past. It is very disappointing that you did not heed the advice given to you last year. This is a grave offence (ref: (respondent named Employee Handbook). The penalty for this type of offense is dismissal, therefore your contract of employment with (respondent named) will cease immediately….”
JB told the Tribunal that an alternative to dismissing the claimant was considered but the only sanction appropriate was dismissal in the circumstances.
Under cross-examination JB said he was unsure how many views the posting had received on social media but the potential affects to the company and its customers was huge. When put to him JB refuted he had made a comment regarding employing the claimant’s wife during the meeting held on the 10th of February 2014. JB agreed the claimant had been a very good employee.
When asked JB said there were no minutes or notes of the meetings held on the 10th and 13th of February 2014 with the claimant. JB said he could not recall if the issue of the claimant being aware of the social media policy arose at the meeting but was sure DC had met the claimant sometime the previous year on a one to one basis to discuss it.
Claimant’s Case:
The claimant gave evidence. He explained that in 2008 a member of management had requested he take pictures and videos of loading vehicles on transporters for the respondent. The claimant told the Tribunal he also spoke to DC about the matter who told him, he thought, his videos were of good quality.
In November 2013 he met a member of management (TN) to discuss why he was not working in the UK. JB was also present at this meeting. The claimant explained to TN and JB that his wife was pregnant, she had three miscarriages in the past, at the time and he wanted to be home at weekends to be with her. An agreement was made that the claimant could return home at weekends. The claimant and the respondent would pay the travel expenses home every alternative weekend.
On the 7th of February DC contacted the claimant asking had he posted a picture and made a comment on social media. The claimant clarified that he had shared a posting and wrote a comment in his native language, Lithuanian. DC requested the claimant attend a meeting in Baldonnell on the 10th of February 2014. DC also told the claimant to take the posting down. The claimant did so as soon as he could.
At the meeting on the 10th of February with DC and JB he was advised he had breached the new company social media policy. The claimant said he replied that he was unaware of the policy stating he had not received a copy of it. He was informed it was sent to him but the claimant stated that he had moved address and the office was fully aware of the change. He also told DC and JB that if he had breached the policy he was sorry and had not meant to damage the respondent in any way. The picture did not highlight the respondent’s name and the comment was in his native language. The shared picture had been placed on a technical group site and was meant to be viewed by his friends and colleagues only. The claimant was suspended with pay.
He attended a second short meeting on the 13th of February 2014 were he was informed he was dismissed. He appealed the decision. However the decision was upheld.
The claimant gave details of his efforts to mitigate his loss of earnings since the termination of his employment.
Under cross-examination he said the comment he had made regarding the picture in question had just been a conversation point between friends and colleagues who were connected to the site. He had never any intention of damaging the respondent company in any way and would not have posted it had he known it was against company policy. He refuted he had posted the picture on the website but had merely shared it with friends.
Determination:
Having considered the evidence of the parties, the submissions and noting some credibility issues regarding the evidence of the claimant the Tribunal finds as follows:-
1. The impugned conduct was not disputed.
2. Taking into account that the conduct was not disputed the disciplinary procedures followed by the respondent were adequate.
3. The impugned conduct was in the nature of poor judgement by the claimant rather than an action done with malice or with the intention of harming the company. The respondent itself in its letter of 14th February 2014 made reference to poor judgement.
4. The respondent was entitled to discipline the claimant for the impugned conduct. However, the sanction of dismissal was disproportionate taking into account the claimant’s good record since 2008, his remorse, his admission to the conduct at the first available opportunity and the fact that the photograph was already on the internet prior to either its posting or sharing by the claimant.
Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant compensation in the amount of €7,500.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)