ADJ-00008348

Complainant

Respondent

Anonymised Parties

General Assistant

Entertainment Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00011076-001

02/05/2017

The complainant contends that she was unfairly dismissed from her employment following a posting by her on social media.

The complainant was employed by the respondent for almost six years. She worked up to 30 hours per week for minimum wage.   It is stated that she worked without incident until December 2016.   When she returned from maternity leave she was subjected to ill treatment and discriminatory comments. Some complaints were made by the complainant’s manager against members of staff. The complainant’s hours were cut and in general, the atmosphere at the workplace was hostile. A new employee lodged a complaint against the complainant and ultimately she posted a message on social media which stated that the workplace was “hell on earth”.                                                           The complainant was suspended and then dismissed. It is contended that the investigation and disciplinary process followed by the respondent was flawed. The HR Manager showed bias and she and the complainant’s manager argued with the complainant at the disciplinary meeting.   In addition, as part of the investigation, the HR Manager had interviewed three staff members but did not supply the complainant with any details.   This, it is contended, is a breach of natural justice.         The disciplinary hearing was held on 15 March 2017 and the letter dismissing the complainant was dated the same day.   It is submitted that the complainant was not made aware of the company social media policy and that the sanction of dismissal for posting a message on a limited (snap chat) social media site was disproportionate.     The complainant’s appeal against dismissal was not upheld.   It is argued that the dismissal of the complainant was unfair, disproportionate and the process adopted breached the principles of natural justice.

The respondent submits that the complainant was dismissed for gross misconduct, and that dismissal was not unfair. The respondent is proud and protective of its brand image, and invests heavily in developing and maintaining this brand across a variety of media including Facebook.   It has in place a comprehensive Social Media policy which is distributed to all employees.                       In February 2017, members of staff complained to management about the complainant’s alleged behaviour whereby she allegedly made inappropriate and discriminatory comments to a work colleague which were targeted at her manager. Shortly after that, the complainant posted an image of her workplace clearly showing the logo of the company with the phrase “hell on earth”.              The complainant was suspended on full pay pending an investigation into the allegations made by staff members and the damage to the company brand.                                                                                 An investigation meeting was held in March 2017 and the complainant was afforded the right to representation and the details of the complaints. The outcome of the investigation meeting was sent to Director of the company and a disciplinary hearing was held on March 15.                              The complainant argued that the post on social media were due to an issue with her manager and that these comments were visible on her Snapchat account to friends and family only.   The complainant was asked why this issue with her manager was not dealt with through the grievance procedure. She was also advised of the damaging consequences for the business which was yet to exit the recession.   The complainant accepted that she probably had a copy of the company social media policy. There was considerable discussion about who was telling the truth in relation to allegations of discriminatory comments allegedly made by the complainant.     The meeting concluded and the Director stated that he would make a decision within 24 hours. In a letter dated 15 March he outlined his reasoning in relation to the two allegations. He accepted the complainant’s explanation in relation to the alleged discriminatory comments and concluded they did not warrant disciplinary action. In regard to the social media posting he did not accept the complainant’s grievance was a mitigating factor, and he quoted the respondent’s social media policy for bringing the company into disrepute via social media. The decision was to dismiss the complainant with effect from 16 March 2017. An appeal was lodged and was not successful. It is argued that the complainant was dismissed by reason of her misconduct.   Her dismissal resulted wholly from “the conduct of the employee”, in accordance with Section 6(4) (b) of the Unfair Dismissals Act 1977 to 2015. It is the respondent’s position that the complainant was afforded full rights in accordance with the respondent’s policies and the complainant’s terms and conditions of employment.                The complainant admitted posting the phrase hell on earth, and after a fair and thorough investigation and disciplinary process, this behaviour was found to be in breach of the respondent’s social media policy, which states :

“All employees must adhere to the following when engaging in social media:

1.      You are personally responsible for what you post or publish on social media sites.   Where it is found that any information…or bringing the company into disrepute, you may face disciplinary action up to and including dismissal”.

The respondent contends that the dismissal was fair and falls within the band of reasonable responses that a fair-minded employer would employ. Case law is submitted in support (Noritake (Irl) v Kenna UD 83/1983).  

The Company policy is clear on Social Media and the Complainant’s transgression was the reason for her dismissal. I find no concrete evidence of her receiving this policy and it is possible that she did not receive it until after she posted the offending message.   I find that the process followed by the respondent were in accordance with their disciplinary procedures. I accept the complainant’s representative’s evidence that the initial investigation meeting was unnecessarily hostile to the complainant. In all the circumstances of the case, I find that the ultimate penalty of dismissal was too harsh and a written warning would have been more appropriate.   I do find however that the complainant contributed substantially to the situation in which she found herself.   I uphold her complaint that she was unfairly dismissed. In the situation where trust and confidence in the employment relationship has broken down, I find that compensation is the appropriate remedy. I award the complainant the sum of €3,600.