ADJ-00007142

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007142

Parties:

Complaint:

Date of Adjudication Hearing: 10th November 2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Procedure:

This complaint of unfair dismissal was received by the Workplace Relations Commission on 13th February 2017. In accordance with Section 8 of the Unfair Dismissals Acts 1977-2015, following the referral of this complaint to me by the Director General, I inquired into the complaint and gave the Parties an opportunity to be heard by me and to present any relevant evidence. The Complainant represented himself whilst the Respondent was represented by C B Robinson Corporate Solicitors. This complaint was initially listed for hearing on 11th September 2017 at 10.30am in Lansdowne House. A Solicitor and witness were in attendance and ready to proceed on behalf of the Respondent but there was no appearance on behalf of the Complainant. I was satisfied that the Complainant had been properly notified of the hearing date, time and venue by letter dated 2nd August 2017 from the WRC. After allowing 30 minutes to elapse and making enquiries with the WRC Administrative Unit, I informed the Solicitor for the Respondent that another hearing date would be scheduled if the Complainant contacted the WRC with a reasonable explanation for his non-attendance, otherwise a ‘no show’ decision would issue in the normal course. Shortly after the hearing, it came to my attention that an email was received by the WRC at 11.13am on the same date from the Complainant stating that he had unsuccessfully attempted to call the WRC before the hearing to confirm that he was unable to attend as his car had broken down the night before and he sought a rescheduled hearing date. I was cognisant of the expense and inconvenience caused to the Respondent but satisfied with the vouching provided, I considered that it was reasonable, humane, sympathetic and fair to accede to the request, being the requisite test. This complaint was relisted for hearing on 10th November 2017 when both Parties were in attendance and presented their evidence, supporting documentation and submissions. The Solicitor for the Respondent consented to an amendment of its name to reflect its full legal title. All oral evidence, written submissions, supporting documentation and law presented by both Parties have been taken into consideration.

Background:

The Complainant complained that he had been unfairly dismissed for gross misconduct by the Respondent on 13th February 2017. He had been employed by the Respondent as a Coach Driver since 4th August 2015 and there was no issue that he had the requisite 12 months’ service for a complaint of unfair dismissal under Section 8 of the Unfair Dismissals Acts 1977-2015. It was also common-case that he was earning an average €495 gross per week for the material period. The Complainant confirmed that he had found alternative employment with another coach company relatively quickly and was now earning €650-700 per week. No issue was raised on behalf of the Respondent as to his efforts to mitigate losses. He sought compensation in respect of the 10-week period that he was out of work. He also contended that he had not received his full Social Welfare entitlement given the nature of the termination of his employment and a favourable decision would enable him to claim a back-payment. The Complainant did not take issue with the procedures utilised by the Respondent but contended that the decision to dismiss him was disproportionate to the alleged misconduct which was factually not in issue. The Respondent contended that this complaint should be dismissed on the basis that it was precipitous, having been referred on the date of the dismissal without exhausting the internal appeals process and was in any event, both procedurally and substantively fair. As the burden of proof rested with the Respondent to demonstrate that the dismissal was fair, the Respondent gave evidence first as set out hereunder.

Summary of Respondent’s Case:

A Regional Manager gave evidence on behalf of the Respondent outlining and confirming the factual background and procedures adopted giving rise to the Complainant’s dismissal for gross misconduct. He said that on 7th January 2017, the Head Office had contacted him to inform him that there was a photo accompanied with commentary on the Complainant’s Facebook page relating to one of the Respondent’s coaches. He telephoned the Complainant to ask whether this was true. The Complainant confirmed that he had taken a photo of a defective wheel on one of its coaches which he had been driving and had posted on his personal Facebook page with accompanying commentary. The Regional Manager asked him to take down the post immediately which he did.

Arising from this incident, the Regional Manager sent an email dated 28th January 2017 to the Complainant requesting that he attend an investigation meeting on 30th January 2017, stating: “On Saturday 07/01/2017 you posted a picture and comments on your Facebook account regarding a (Respondent’s) Coach. This incident is of grave concern to (the Respondent), and could lead to disciplinary action up to and including dismissal. You have the right to be accompanied by a fellow employee who may act as a witness or speak on your behalf. Please refer to your employee handbook.” The Complainant attended at the investigation meeting accompanied by a colleague. He provided his Regional Manager with a statement in relation to the incident. The statement confirmed that on the day in question, he had performed all his daily routine checks on the coach but noticed that it had not been driving properly. He had reported the problem to his Duty Manager but had been told that there was no other coach to swap it with so he had to take it. Whilst driving with passengers on board on the motorway sometime later, he heard something hitting his chassis and his steering-wheel had started to shake. He braked easily and pulled into the hard shoulder. He was shocked to discover that the left rear wheel was hanging on one bolt and the rest of the nuts were gone. He could not imagine what could have happened if the wheel had come off the axle whilst driving at 100km/ph. He informed the passengers that he had a problem with the wheel and put out a warning triangle and switched hazard lights on before ringing his Duty Manager. Some of the passengers alighted and took photos of the wheel. Whilst awaiting buses to transfer the passengers, the Complainant also took photos of the wheel in question on his phone which were furnished along with a screenshot of the commentary. He posted the photo on his personal Facebook page to which only his Facebook friends had access, headed with the comment in Polish translated into English as “The situation”. He accepted that he had engaged in further commentary with his friends in relation to the incident, describing what had happened and the dangerous nature of the incident. The comments were online for 3-4 hours before he removed them. He pointed out that he had not included the identifying coach colour and did not refer to the Respondent’s name as “I did not want to put bad name on my company. I would never do that.” Whilst he always takes photos of any damage, on this occasion he had posted the photo to Facebook as a shock reaction.

Following on from the investigation meeting, by email dated 3rd February 2017 the Complainant was informed that he was required to attend a disciplinary meeting on 6th February 2017, and was notified of his right to have a colleague attend with him. He attended the disciplinary meeting unaccompanied. The meeting was conducted by the same Regional Manager who confirmed receipt of the notes from the investigation meeting and informed the Complainant of the purpose of the meeting and of his entitlement to appeal with reference to the Employee Handbook. The Complainant expressed his shock at being called to a disciplinary meeting for taking and posting the photo in question. The Regional Manager put it to him that the issue was not the taking of the photo but the fact that he had posted and commented on a photo of the Respondent’s wheel on Facebook, being one of the most public platforms in the world. The Complainant reiterated that there had been nothing in the photo or accompanying commentary identifying the Respondent. He confirmed that he had told the passengers that there was a problem with the wheel and that some of them had taken photos of it. When asked whether there was anything he had to add at the conclusion, he stated: “I did wrong by posting photo on Facebook and am really sorry for doing it.”

Following on from the subject-matter of the disciplinary meeting, by email dated 6th February 2017, the Complainant was informed that he was required to attend a disciplinary outcome meeting on 13th February 2017, and was notified of his right to have a colleague attend with him. Again, the Complainant attended alone and the meeting was conducted by the Regional Manager. After ensuring that he was in receipt of the notes from the disciplinary meeting and explaining the process to date and the right of appeal as provided for in the Employee Handbook, the Regional Manager proceeded to inform the Complainant that he was dismissed on the following basis: “By posting the photograph on Facebook, and commenting on same, you have caused (the Respondent) to lose faith in your integrity. Because of the breach of confidentiality, and the loss of faith in your integrity, we have no option, but to dismiss you from your duties with immediate effect.” When asked about the Complainant’s explanation, he said that it hard to believe that someone in shock would react by posting and commenting on the photo in question and would be more likely to contact Gardaí.

The Complainant referred this complaint to the WRC on the same date of his dismissal, being 13th February 2017. The Regional Manager had notified the WRC that he had not exhausted the internal appeals process. When this was brought to his attention, he submitted an appeal against his dismissal to the Respondent on 23rd February 2017. By letter dated 7th March 2017, the Complainant was requested to attend an appeal hearing on 9th March 2017 with another Manager who had no prior dealings with him, and was notified of his right to have a colleague attend with him. At the hearing, the Complainant repeated his evidence as given at the previous meetings to the effect that he had posted the photo and commentary in question as a shock reaction to what he clearly regarded as a potentially very dangerous incident. He confirmed that he had 5-6 Facebook friends who were also employees of the Respondent and one of them had reposted the photo. In circumstances where he had a prior clean record, he submitted that the punishment of dismissal was too serious and a verbal or written warning would have sufficed. Following the appeal hearing, by letter dated 16th March 2017, the Complainant was informed of the Manager’s findings to the effect that having listened to his evidence together with a full review of the other evidence, he was upholding the decision to dismiss him. In particular, the Manager noted the undisputed evidence that he had posted a photo of a defect on one of the Respondent’s coaches on Facebook and commented on it without its consent and found: “This was viewed as a serious breach of company confidentiality with the potential to cause reputational damage to the company” constituting gross misconduct. The Complainant was also informed of his entitlement to a further appeal to the Managing Director within five working days but had not availed of same. A notetaker had been in attendance at all the aforementioned meetings and no issue was taken with the notes taken.

An updated Employee Handbook including the Respondent’s Disciplinary Procedures was furnished at the hearing. It provided the usual stepped approach from a formal verbal warning to a written and final written warning for misconduct and straight dismissal for gross misconduct. When questioned as to the basis for the finding of gross misconduct with reference to the Company Handbook, the Regional Manager referred to ‘Paragraph E. Rules Covering Gross Misconduct’ which provided a non-exhaustive list of actions which may make an employee liable to summary dismissal including: “h. Taking part in activities which result in adverse publicity to ourselves, or which cause us to lose faith in your integrity; including serious misuses of social or other media firms.” He also referred to a paragraph headed ‘Misuse of Social Media’ which stated: “The Social and Digital Media Policy and Guidance document provides guidance and direction to all (of the Respondent’s) staff when utilising all types of online media sites and networks. This policy applies to all (of the Respondent’s) employees either participating personally, or communicating on behalf of (the Respondent) while online. Misuse or abuse of social and digital media can cause significant injury to third parties and can also impact negatively on the credibility of (the Respondent). Consequently, (the Respondent) takes any misuse or abuse of social and digital media by (the Respondent’s) employees very seriously and can lead to significant disciplinary and legal actions. (The Respondent) places a significant personal responsibility on each employee. The same rules that apply to our communications in traditional media, like newspapers, television and radio, also apply in online news or social media sites or networks.” When asked about the ‘Social and Digital Media Policy and Guidance document’ referred to above, the Regional Manager appeared to be unaware of the existence of same and was unable to confirm that it had ever been furnished to the Complainant. He was also unclear as to how the post in question had been brought to the Respondent’s attention but surmised that it had become known as some of the Complainant’s Facebook friends were also employees of the Respondent. He further confirmed that he was unaware of any external complaints or actual reputational damage to the Respondent arising from the Complainant’s actions but referred to the lack of control over social media postings and potential future damage.

In summing up, the Solicitor for the Respondent submitted that this complaint should be dismissed on the basis that it was precipitous, having been referred on the date of the dismissal without exhausting the internal appeals process. In this respect, reliance was placed upon a decision of the EAT dismissing a complaint of unfair dismissal where the appellant had not availed of an internal appeals process holding: “The appellant has an obligation to exhaust the internal disciplinary process prior to seeking to enforce her rights externally. She has not satisfied her obligation and did not adduce any evidence that might justify her decision not to exhaust the internal process. Furthermore, the appellant made admissions in relation to the allegations.”[Melinda Pungor -v- MBCC Foods (Ireland) Limited UD584/2015]. It was further submitted that the dismissal of the Complainant was both procedurally and substantively fair, particularly given that the facts were not in dispute and he had admitted his wrongdoing and therefore this complaint should be dismissed.

Summary of Complainant’s Case:

The Complainant gave evidence confirming that whilst the facts giving rise to his dismissal as outlined above were not in issue, the decision to dismiss him was unfair given the following mitigating circumstances: (1) he has never been subject to any prior disciplinary action or involved in any accidents whilst in the employment of the Respondent; (2) he only posted one photo of the defective wheel in question and had been careful not to identify the Respondent; (3) he had just wanted to post about his experience in relation to the incident in question and had not intended to bring the Respondent’s name into disrepute; (4) his Facebook page is private and it was one of his friends who worked for the Respondent who had reported the post; (5) he had posted it as a shock reaction to the incident in question and deleted it when requested; (6) he was unaware of the contents of the Employee Handbook at the material time and of the existence of the Social and Digital Media Policy and Guidance document and hence had no idea whatsoever that his post could lead to his dismissal and (7) although he had admitted his wrongdoing, he felt that his dismissal was a very harsh response and a verbal or written warning would have been more appropriate.

Under questioning, the Complainant accepted that he had posted the photo and accompanying commentary using his personal phone whilst waiting on the hard shoulder for assistance to arrive. He accepted that he probably should not have been posting about a work-related incident on his personal Facebook page whilst at work and had accepted his wrongdoing in relation to same. He had been angry, shocked and scared at the time and had not thought through the potential ramifications especially given that 5-6 of his circa 100 Facebook friends were also employees of the Respondent and he suspected that one of them had reported the post. When asked why he had not exhausted the appeals process by availing of the final appeal to the Managing Director, the Complainant said that after engaging with the first appeal, he had lost faith in the process at that stage and expected that the outcome would be the same in any event. He also said that he had not pursued his complaint primarily for financial reasons and wanted an apology from the Respondent.

Findings and Conclusions:

The issues for my decision are twofold, being firstly whether the Complainant should have exhausted the internal appeals process before referring and pursuing his complaint of unfair dismissal to the WRC and if not, whether he was unfairly dismissed by the Respondent. In deciding these issues, it is necessary to apply the applicable legal provisions to the factual matrix presented. There is no material dispute as to the facts outlined above giving rise to the Complainant’s dismissal.

In relation to the first issue, I note the Respondent’s reliance on the EAT decision in Melinda Pungor -v- MBCC Foods (Ireland) Limited UD584/2015 to contend that the WRC should not entertain this complaint in circumstances where the Complainant had not exhausted the internal appeals process. As apparent from that case, each case will turn on its own particular facts as to whether or not the internal appeals process should have been exhausted before referral of a complaint. In the instant case, it is not in dispute that the Complainant’s dismissal was effective from 13th February 2017 and he ceased being an employee with the Respondent on that date. His contract of employment did not make any provision to maintain the status quo pending the outcome of the final appeal such as suspension with pay. He was therefore legally entitled to refer a complaint to the WRC under Section 8 of the Unfair Dismissals Act 1977 from that date and the clock was running in terms of the six-month time limit for the purposes of same. I further note that when this issue was brought to the Complainant’s attention after the referral of his complaint, he availed of the first appeal which upheld his dismissal and for the reasons set out below, am of the view that it was not entirely unreasonable for him to lose faith in the process. In all the circumstances, I am satisfied that the Complainant’s referral of this complaint without fully exhausting the internal appeals process does not impugn the WRC’s jurisdiction to adjudicate upon the substantive complaint of unfair dismissal.

Turning to the substantive complaint, Section 6 of the Unfair Dismissals Act 1977 provides the legal framework for complaints of unfair dismissal. Whilst Section 6(4)(b) expressly lists the grounds where dismissal of an employee shall not be deemed to be unfair including dismissal wholly or mainly from the conduct of the employee, Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair and Section 6(7) provides for an Adjudication Officer to have regard for “(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.” In JVC Europe Ltd -v- Panisi [2011] IEHC 279, the High Court aptly summarised this legal framework as follows: “The issue for the tribunal deciding the matter will be whether the circumstances proven to found the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify dismissal.” In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr Justice Noonan elaborated on what was required in the context of Section 6 of the Unfair Dismissals Act 1977 as follows: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”  An employee also has an implied contractual and constitutional right to fair procedures as grounded in common-law, Irish caselaw e.g. Re: Haughey (1971) IR 217 and statute i.e. S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures),providing that employers should have written procedures for dealing with disciplinary issues reflecting the varying circumstances of the employer and complying with the general principles of natural justice and fair procedures. Based upon these legal principles, it is therefore necessary to determine on the balance of probabilities whether an employer’s decision to dismiss an employee for misconduct is both substantially and procedurally fair.

Where a question of unfair dismissal is in issue, in its judgement in Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137, the High Court provided a list of ‘premises’ which must be established to support an employer’s decision to terminate employment for misconduct, being as follows:

“1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.
3. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.
4. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered.
5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

Applying the aforesaid legal principles and statutory provisions to the facts, I am satisfied that firstly there are no material procedural issues which constitute a breach of fair procedures. Whilst it would have been better practice to have a different person other than the same Regional Manager oversee both the investigations and disciplinary proceedings, nothing turned on this in circumstances where the facts were not in issue. Turning to the issue of whether the Complainant’s dismissal was substantially fair and “within the range of reasonable responses of a reasonable employer to the conduct concerned”, it is necessary to examine the substantive reason for his dismissal being: “By posting the photograph on Facebook, and commenting on same, you have caused (the Respondent) to lose faith in your integrity. Because of the breach of confidentiality, and the loss of faith in your integrity, we have no option, but to dismiss you from your duties with immediate effect.” Whilst the Respondent sought to rely upon the Employee Handbook as providing guidance to its employees, there was no evidence that the Complainant had been provided with the aforementioned Social and Digital Media Policy and Guidance document referred to under ‘Abuse of Social Media’ which “…provides guidance and direction to all (of the Respondent’s) staff when utilising all types of online media sites and networks.” In this respect, I am satisfied on hearing the Complainant’s evidence that whilst he was aware that it would be inappropriate to post negatively about work-related matters on his personal Facebook page and hence his caution in not identifying the Respondent, he was unaware that his actions in posting the photo and related commentary in question could lead to his dismissal. Whilst the dismissal of employees for posting negatively about their employer have been upheld in a number of Irish & UK EAT cases which turned on their own particular facts, other cases have found such dismissals to be unfair because the employer did not have a social media policy in place. In the instant case, the Respondent clearly had a Social and Digital Media Policy and Guidance document in relation to social media usage which was never communicated to the Complainant or referred to for guidance throughout the process despite the serious consequences of dismissal. In the absence of same, it was not possible to ascertain what constituted gross misconduct. For this reason, I am satisfied that the Respondent’s decision to dismiss him without notice of same falls outside “the range of reasonable responses of a reasonable employer to the conduct concerned”.

I am further satisfied that the Respondent failed to act reasonably by omitting to consider whether dismissal was a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee as required in Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137. Although the Complainant accepted that his conduct was misjudged and apologised, there was no consideration of the mitigating factors proffered and in particular of his prior good record, either at the disciplinary or appeal stage and whether a lesser sanction such as an oral or written warning would be more appropriate. Notably, the reasons given for the Complainant’s dismissal made no reference to these mitigating factors. Furthermore, there was no evidence of any reputational damage to the Respondent arising from the Complainant’s actions. In all the circumstances, I find that the Respondent has not discharged the burden of proving his dismissal to be substantially fair.

Decision:

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this complaint of unfair dismissal in accordance with the relevant provisions. For the aforesaid reasons, I find this complaint to be well-founded pursuant to Section 8 of the Unfair Dismissals Act 1977 and conclude that the Complainant was unfairly dismissed by the Respondent. Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress to which an employee shall be entitled upon a finding of unfair dismissal including either reinstatement, re-engagement or financial compensation. Relevant to the instant case where compensation only is sought, Section 7(1) of the Act provides for an award of up to 104 weeks remuneration where the employee has incurred financial loss attributable to the dismissal and up to 4 weeks remuneration where no financial loss has been suffered. Section 7(2) sets out the factors which should be considered when determining the amount of compensation and of most relevance to this case where losses and/or mitigation of same are not in issue, the extent (if any) to which the conduct of the employee or employer (whether by act or omission) contributed to the dismissal. In this respect, I am satisfied that the Complainant contributed to a large degree to his dismissal by his actions which he had openly accepted were misjudged and wrong. I also note that within 10 weeks of his dismissal, he was earning significantly more in his new position which had absorbed any losses suffered during his period of unemployment. I further note that his main concern is vindication as opposed to compensation. I therefore consider it just and equitable in all the circumstances to award him a sum of compensation equivalent to two weeks remuneration, being €990. The Respondent is therefore ordered to pay the Complainant a total of €990 in compensation (subject to any lawful deductions).

Dated:   October 4th 2018

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Section 8 of the Unfair Dismissals Acts 1977-2015 – Unfair Dismissal – Internal Appeal