Complainant

Respondent

Anonymised Parties

A Doorman

A Food and Beverage Business

Act

Complaint Reference No.

Date of Receipt

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

CA-00022176-001

26/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00022176-002

26/09/2018

This case concerns the circumstances surrounding a posting on social media by the complainant on his personal social media page. The Employer in the case deemed the comments as prejudicial and discriminatory against gay people. The Respondent submits that the employer was listed on this page and the business received a series of recriminatory comments as a direct consequence of the posting.

The Complainant was dismissed by way of letter dated October 9, 2017 which was not altered on appeal. He has not worked since his dismissal

There is a parallel claim for an alleged breach of the Terms of Employment (Information) Act, 1994.

The parties were both professionally represented. The Complainant by Ms Nikki O Sullivan instructed by Buttimer Solicitors and The Respondent by TSA Consultants and Ms Mary O Brien Williams.

The Complainant is a Polish National and commenced work as a Doorman with the Respondent on a 16-hour week on 13 March 2016 until his dismissal on grounds of gross misconduct on 2 April 2018. He earned variable payments, averaging c. €130.00 per week in 2007. He had worked without incident prior to his dismissal.

He had not worked since his dismissal and had commenced a Course in October 2018. He submitted documents on loss and mitigation post hearing.

In an initial outline of the case dated November 25, 2018, and by oral submission at hearing, the Respondent explained the background to the case.

The Complainant received an employment booklet at the commencement of his employment. On the bank holiday dated 6 August 2017, the complainant posted comments on his own social media page where the Respondent was listed as his Employer. The Gay Pride Festival was running concurrently in the city.

The Complainant posted that a Radio station was promoting homosexuality and the complainant was critical of this stance. This prompted several follow up comments and corresponding replies. During this time, he was identified as being a Doorman at the Respondent business and comments followed such as “…. wonder what your employers at X will make of your discriminatory views “

On the evening of 6 August at 14.36hrs, Mr A, Bar Manager requested the complainant to remove the Respondent business name from his social media due to the recriminatory comments being received. He did not receive a response to this request. The Respondent responded to the on-line comments” to advise that the employee in question will not return to work until an investigation is completed”. The Complainant was placed on unpaid suspension and removed from the business roster.

The Complainant was invited to a meeting scheduled for 16 August 2017. The Complainant requested this meeting to be located at his Solicitors office. This was denied. He was given a copy of his contract of employment as requested.

The Complainant did not attend the meeting. Another meeting was scheduled for 21 August and the same thing happened. The complainant did not attend and gave no explanation for this. He did not comply with the investigative process. The Respondent received a communication from the complainant on the date of the second meeting:

Respondent: I note with disappointment your failure to attend the arranged meeting today. Please advise of a time this week that suits you and your Solicitor to meet me in X and I will try to work around it. It is still my preference to have your input into your comments before I make any decision.

Complainant: First we will meet in Work Commission than in a court. Mr B, best of luck.

When the Respondent sought clarity on this statement, the complainant did not clarify. The Complainant sought to film the film, and this was refused. The CC TV did not provide for audio.

The Complainant suggested the date of 27 September 2017 to meet. This was accepted by the Respondent.

The Respondent submitted that the complainant did not engage at this meeting and was accompanied by a witness but no representation. The meeting notes were circulated that day and were unaltered by the complainant.

On 9 October, the complainant was notified of the determination that he was to be dismissed from employment for gross misconduct. This was appealed, and the appeal took place on November 1, 2017. The Complainant received meeting notes and the handwritten notes. These were signed by the complainant on 28 November 2017.

There was an unintentional delay in closing off the appeal process. The Complainant followed it up on March 21, 2018. On 27 March,2018, Mr B responded and upheld the decision to dismiss.

The Complainant never resiled from his comments on social media, he did not accept that the comments were inappropriate. The Respondent submitted that he had not shown any remorse or accountability. He had not co-operated with the investigation and disciplinary processes and showed no appreciation for the clear nexus between these posts and his role of Doorman where he was first point of contact for patrons and potential customers. The Respondent found that the complainant’s position in the company was untenable and while considered other sanctions, they determined that his actions constituted Gross Misconduct which led to his dismissal.

Evidence of Mr A, Bar Manager.

Mr A was Manager on duty during August 6, 2017. He had worked with the Respondent for 12 years. He had been approached by customers coming into the bar who commented on the social media postings.

During cross examination, he confirmed that he had been instructed to contact the complainant to remove the respondent business name from his social media page. He confirmed that he was the most senior person on the premises akin to that of a Supervisor. There were 20 plus people in the bar.

Mr A confirmed that the business did not have a Social Media Policy.

Evidence of Mr B, General Manager

Mr B had been General manager for 13 years and confirmed that there had been no issues with the complainant prior to August 6. He confirmed that he was the Administrator for the company Media Platform and Twitter.

He confirmed that Mr A called him during August 6. an issue had “blown up “on social media. Mr A appraised him of developments. He explained that Gay Pride Festival was held in the near vicinity of the Business and this had generated business. The business was now under pressure as bookings were being cancelled.

Mr B prepare to manage the incident and planned an investigation into the social media postings which had mentioned the business. The complainant did not make an appearance on either of the scheduled meetings of 16 August and 21 September. He was provided with any documentation he sought, including the Disciplinary procedure. The Complainant was un-cooperative with very little response rate.

Mr B confirmed that he formed the opinion that the complainant had moved to” Legal speak” very quickly in the case. He confirmed that he did not have an opportunity to conduct the investigation.

When he met with the complainant in the company of his friend on 27 September, he asked him to explain his comments. There was no response. He did not ask to return to work.

Mr B confirmed that the postings had had a negative impact on the business which had always identified strongly with Equality and Diversity and there was a lot of internal upset amongst the staff also.

Mr B submitted that the business had tried to work with the complainant. He believed that all options had been exhausted prior to his decision to dismiss the complainant.

During cross examination, Mr B confirmed that the business employed 90 employees. Counsel for the Complainant disputed that customers and staff were in difficulty from the postings. Mr B confirmed that he had not spoken to Mr A about the event. The Complainant was off duty on August 6 and not scheduled to work. The roster is done one month in advance.

He confirmed that the complainant was placed on unpaid suspension. Counsel put to Mr B that in the absence of an Investigation and Disciplinary procedure, he had been trialled by Media. Mr B denied this.

In reviewing the invitation to meet dated August 11, Counsel submitted that it was silent on the reference to investigation, instead, just stated “a Meeting “

Mr B confirmed that the complainant was absent in every sense as he had not turned up to complete his social welfare dockets either.

Mr B confirmed that the issue on the social media postings was the reference to where the complainant worked. There had been residual demonstrations of anger directed towards staff also. The business had been damaged.

Evidence of Mr C, Appeals Manager

Mr C was introduced as an owner of the Business. He was at home when he first learned of the social media postings from comments from friends. He stood back from an of the early attempts at due process in the case. He was not involved in the earlier aspects of the case and he confirmed that he was an independent person.

Mr C prepared to undertake the appeal of the dismissal. He understood the process and commenced his appeal in the presence of a note taker on November 1, 2017. There were handwritten, and typed notes compiled. While he accepted that communication of the outcome of the appeal had been overlooked, He had undertaken a fair appeal where he reviewed the series of events and the process relied on. He found Mr Bs actions to be fair and noted that efforts to investigate matters had not been matched with the complainant’s cooperation. He also noted that the complainant had not cooperated with his DSP dockets as a casual worker. He noted that the business had lost social events from the LGBT community who had been loyal customers.

He made the decision to uphold the decision to dismiss as the complainant had not cooperated with any procedure aimed at getting an insight into why these comments were made. Mr C was proud of the Business ethos of “Open to all people” which was the hallmark, and this had been damaged by someone who was the first face of the business at the Door.

During cross examination, Mr C confirmed that there had been no difficulties concerning the complainant prior to August 6. He confirmed that he had noticed his absence post that date. He confirmed that there were no specific complainants in the case and specific comments were no put to him. Mr C queried the suspension as the “casual XO documents “would not have been the correct administration of this.

Mr C gave some detail on the Business fallout from the social media postings. He confirmed that nothing new was raised on appeal and the complainant had not asked to return to work.

In conclusion , the Respondent representative submitted that the complainant had not availed of any opportunity to clarify the social media posts and he had not requested a return to work .He chose not to engage with his employer .He did not take any accountability for his postings which identified his employers Business name .The Respondent believed that this was gross misconduct and dismissed the complainant from employment , which was unaltered on appeal .

The Respondent representative expressed a disquiet in the evidence given on Mitigation and loss. The Complainant undertook to submit detail in support of his evidence.

CA -00022176-002 Terms of Employment

The Respondent submitted that the contract presented at hearing was bereft of all the terms contained in Section 3 of the Act. The Respondent did not recall the complainant seeking the contract prior to August 2017 and submitted that the complainant had wrongly accused the Respondent of forging this document.

Counsel for the Complainant accepted that the Complainant had been suspended from his employment from 6 August ,2017 in response to social media postings. He was a part time employee on a DSP casual docket working 14-16 hours per week.

The Complainant was introduced as not being a native English speaker while being deeply religious and a mass goer. He expressed his opinions in a Private capacity.

In response to the invitation to meet dated August 11, Counsel submitted that there was no mention of an investigation and the complainant needed advice before turning up. As it turned out the Investigation process and the Disciplinary procedures were conflated into one process.

Counsel submitted that the complainant had never received a copy of an employee handbook and the contract was only partially completed.

The Appeal in the case was permitted to drift and this was injurious to the complainant. The Complainant had subsisted on Job Seekers Benefit since hi dismissal and had commenced a course aimed at Self Employment in October 2018.

Evidence of the Complainant.

The Complainant has worked in Security for 13 years.

The Complainant confirmed that he had not responded to the text sent by Mr A on seeking to remove the employer name from his social media page. He sought a copy of his contract post 7 August. He received an invitation to a meeting from Mr B and knew that he needed legal advice.

In response to the first question asked by the Respondent “Explain my comments “He believed he had nothing to explain. The Complainant confirmed that he had not been placed on the roster at the Business since June 12-16, 2017 as a Senior Security Officer had been told not to place him on the roster. He confirmed that he had not been laid off.

The Complainant submitted that he had not been met by specific complaints and he had not been told about negative calls to the business. The Complainant explained that he had no idea what to expect from the process post August 6 and he did not know what was going on. He understood that he had a right to hold his own opinions.

He understood that he had tried to get his job back and was compelled to chase up a much-delayed Appeal outcome.

During cross examination, the Complainant confirmed that he had been on unpaid holidays 16 and 21 August. He had not requested an interpreter. He understood that there would be questions following August 6.

He confirmed a new Supervisor had started in May June and he was unable to make any comment on why he had not sought a realignment onto the roster.

He had participated at the meeting which led to his dismissal and an appeal and had not received an appeal outcome some 4 months later. He asked his solicitor to follow up in March 2018 as he was hoping to set up a business and he was a “frozen employee “

The Complainant submitted that he had been unfairly treated as he should have freedom of speech.

The Complainant sought to give evidence of Mitigation and loss.

In conclusion, Counsel for the Complainant summarised that once the face book post was notified to the complainant, he was suspended and not returned to the roster. The copy of the contract he received was largely blank.

There was no dossier of complainants or complaints in the case and while some format of investigation had been raised, it was the Business Brand which could permeate a personal matter. The Respondent did not have a Social Media Policy.

Counsel submitted that dismissal was a disproportionate response on foot of zero process and the matter was unfairly escalated to dismissal stage.

Counsel asked for consideration of the reliance by the Respondent on the complainant’s non-cooperation vis a vis the Respondent non-cooperation with the Appeal process as evidenced by the 5-month delay in outcome.

The Complainant relied on Brown V Mountainview /Blakestown Community Drugs Team Ltd UDD 1447/2014 which referred to a social media postings of two months standing which culminated in a dismissal held by Eat to be disproportionate .

CA -00022176-002 Terms of Employment

The Complainant submitted that he had requested a copy of his contract of employment on several occasions during his employment and this was denied. He received a copy after August 6, 2017. He did not accept that this was his original statement.

I have considered both party’s submissions both oral and written in this case. I wish to address a Preliminary Issue surrounding the date of dismissal in the first instance. The Complainant did not express any difficulty in comprehending proceedings in English.

Preliminary Issue

Section 1 of the Unfair Dismissals Act 1977-2015 defines the statutory date of dismissal for the Act.

1(a) where prior notice of termination of contract is given and it complies with Minimum Notice Legislation, the date on which that notice expires.

(b) where notice is not given or falls short of Minimum Notice Legislation, the date on which the notice would have expired, if it had been given on the date of such termination and had been expressed to expire in line with contract or the Minimum Notice Legislation.

Section 8(2) of the Unfair Dismissals Act 1977-2015 requires a claim for redress to be initiated by notice in writing within the period of 6 months beginning on the date of the relevant dismissal or within 12 months on reasonable cause.

The complaint in this case was received by the WRC on 26 September 2018. The Date Employment ended was listed as April 2, 2018. The Date of Dismissal was listed 9 October 2017 (amended from the copy presented at hearing, which cited 2016). This raised questions on whether the complainant was statute barred as the Complainant submitted that he had been dismissed with “immediate effect “. I did not take this at face value, instead I waited to hear all the evidence of the chronology of the case and the sequence of events and just how the procedural framework interfaced with these key dates.

In fact, there were several complications in this regard. The Complainants last day of work appears to have been 16 June 2017. Both parties accept that he was not rostered after that, nor was he placed on temporary layoff. The Complainant was last paid 98 euro on 6 July 2017. By then he had recorded a €2953 gross over 23 insurable weeks in 2017, average €128.39. He was supporting this by way of casual Job Seekers on the “X and O “docket system.

This means that the complainant was not at work during the period referred to in this case, August 6, 2017.

The Respondent submitted a copy of an announcement made by Mr B on the Respondents Social Media which requires direct transposition here.

The comments and views of (the Complainant) are not those of (The Respondent) and we are conducting a full investigation. The employee will not return to work until the investigation is complete and we are currently seeking legal counsel (sic) so we cannot make any other public comment regarding this matter. We have always supported the Pride Festival and have done many events over the years in support. I personally attended the celebrations on X earlier today and I hope the actions of the minority don’t tarnish the celebrations. Happy Pride to all.

The Complainant was notified of his dismissal on 9 October 2016. This was described as “with immediate effect “which was accompanied by notice of appeal to the owner within 10 days. The written submissions indicate that this appeal was submitted by the complainant on the same day, i.e. 9 October 2017.

I have reviewed the contract of employment and the Company procedures to illicit whether any guidance prevails of identifying a definition on a date of dismissal?

The period of notice is listed as 2 weeks on complainants’ behalf and one week on the respondent side on the unsigned contract.

Section 5 of the Employee Handbook, which the Complainants disputes receiving but agrees that he received a copy of Disciplinary procedure in the run up to the September 2017 engagement, refers to Disciplinary procedures and is silent on whether an appeal saves a date of dismissal?

It is of note that the P45 was raised and issued in April 2018. However, this cannot be regarded as the sole determinant of dismissal for the purposes of this complaint. In Redmond on Dismissal Law, Des Ryan B.L. addresses a situation where Dismissal is not accompanied by notice and states that

“The Act defines the date of dismissal as the date on which notice would have expired “if it had been given on the date of such termination “He says that termination is taken to occur when the employee was sent away.

If I apply this to the facts of this case, the Complainant was placed on unpaid suspension on 6 August following a period without work of almost 8 weeks. The Employer continued to fill in his “casual DSP “dockets even within the context of the 27 September engagement. The Complainant continued to claim social welfare throughout his suspension and declared that he was available for work with the Respondent.

I have had regard for earlier Higher Courts analysis of date of dismissal in the seminal case of Duggan and A and T Drains Service UDD 1737 a Tina Casey V Dunnes Stores [2003] ELR 313 and indeed O Neill V Bank of Ireland [1993] ELR 145. The facts differ in all these cases. The Respondent is certain that the complainant was dismissed in this case and have concluded that the delayed appeal outcome prevented closure in the case. The Complainant is clear that he understood that he was reclaiming hi position through the appeal lodged on October 9. However, this appeal was not a De Nova hearing.

For my part, I have found this difficult to unravel. I took some guidance from O Neill but have to admit that this was not an identical case as Mr O Neills’ dismissal was someway truncated through interpretation of references to be raised which prompted a retrospective step.

In the instant case, the complainant was not on the pay roll after July 6, 2017. He was maintained on the employee record system through interface with Department of Social Protection (casual dockets) throughout his period of suspension and he has been on full JSB since then. This is another unusual presentation. The P45 did not issue until April 2018.

Based on the facts as adduced by the parties , the unusual set of circumstances where the complainant was social welfare dependent throughout the circumstances of the case , the lack of guidance in either the contract or handbook and the unfortunate delay in disseminating the outcome of the appeal which prevented the complainant from reaching “ closure” in the case , I must look no further back for the date of dismissal than the date on which Mr C confirmed that he upheld the decision taken to dismiss at 12noon on 27 March, 2018 .I note that the Respondent did not raise issues on the date , but for my own part, I had some concerns which prompted the deliberations outlined above .I find that the complainant was sent away from his employment on 27 March 2018.

As I have found that the date of dismissal stands at 27 March 2018, I find that the complainant can proceed as intended in accordance with Section 8(2) albeit on an amended date from 2 April 2018 as recorded on the complaint form to the WRC.

Substantive Case:

The High Court in JVC Europe ltd V Pansini [2011] IEHC 279 set out the Legal Framework governing conduct-based dismissals.

The issue for the Tribunal deciding the matter will be whether the circumstances proven to find the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal

In Lennon V Bredin M160 /1978 , EAT jurisprudence, graded the parameters of behaviour the Legislature had in mind when considering charges of serious misconduct

“ ….. such things as violent assault, larceny or behaviour in the same serious category …”

The facts of this case emanate from a highly modern workplace. I was very impressed by the content of the Staff Handbook on just what Business Image the company is seeking to create in a competitive business world. It was an inspirational document and I began to understand the company ethos. I am conscious that social media/internet usage at work or outside work is a modern-day phenomenon with which employers and employees are grappling daily.

However, I found a lack of reciprocal attention paid to employment documentation. I noted that the contract submitted was disputed by the complainant who recalled initialling every page on commencement of employment. The copy I received was unsigned and bereft of the detail required by statute. I will return to this.

This case is about Social Media postings on one day in August 2017, during the Gay Pride Festival.I established early on in the hearing that the Respondent did not have a Social Media Policy .I considered an academic Article In Monitoring Employee Online activity and ECHR , 2016 , By Pauline Whalley SC where she analysed the impact of the Barbulescu v Romania 2016 case

For that reason, the approach and dicta of the European Court of Human Rights (ECtHR) in the recent case of Barbulescu v Romania ([2016] ECHR 61) is both timely and illuminating. Although the case was initially hailed by some tabloid media as the workplace equivalent of a snooper's charter, an analysis of the decision demonstrates that the court applied well established principles from ECHR jurisprudence, relying on the explicit terms of the employment contract itself, and the proportionate balancing of employee art.8 ECHR rights, with the countervailing property rights of the employer, to determine that there had been no violation of art.8 rights. Whilst the result may be consistent with earlier authorities, nonetheless, the case raises the interesting question as to where the dividing line is to be drawn between employer interests and employee privacy rights, especially in an online context, not least because of the thought-provoking dissenting judgment of Judge Pinto de Albuquerque, which seems to raise the bar for employers, viewing the art.8 right through a data protection lens.

Ms Whalley went on to focus on Judge Alburquerques dissenting opinion which stated :

any processing of personal data for the purposes of establishing a breach of contractual obligations on the part of the employee “must be regulated either by law, collective agreement or contract” (para.9) in accordance with a carefully designed internet usage policy, as discussed below.

While this is not a breach of contract case, the complainant has submitted that he was unfairly dismissed because of his postings which he stated reflected hi personal opinions on a Public Radio Station Social Media Page, he maintained that these were views, which he was entitled to hold.

Judge Albuquerque went on to emphasise that Employers should not hold an “unfettered control” over an employee’s social media use, and employees should be fully warned of the risk of Disciplinary action, while employers’ actions should be justified and proportionate in that regard.

In this case, the complainant was not working when members of the public established that he had made postings regarding same sex relationships on a Radio social media page. This may never escalate to the circumstances currently under consideration had the complainant not identified his employment in his social media profile which was not known to his employer. The members of the public did not make formal complaints.

In this case, I am not asked to decide whether these actions were wrong, but rather in dismissing the complainant, were there substantial grounds justifying such a dismissal and were the actions of the employer reasonable?

I accept that the complainant was invited to “a meeting “on August 11 scheduled for August 16. While Counsel for the complainant indicated that this was not earmarked as an investigation, the complainant had been suspended for 4 days by then and had decided to obtain legal advice from where he raised the request for his contract. It was clear he knew he had questions to answer.

I note that the Respondent has provision for both paid and unpaid suspension. No evidence was adduced on how the Respondent arrived at the unpaid version of suspension. In Philip Smith V RSA Insurance UD 1673/2013, the EAT criticised that the way Mr Smyth had been suspended on national television, without prior notice to him.

“The equivalent of taking a sledgehammer to his reputation as well as to his prospects of ever securing employment in the industry again in Ireland, Europe or possibly beyond that “

I saw a certain overture between that case and the instant case in that regard.

It was accepted by the parties that Mr B posted a notice on Social Media that the complainant would not return to work until an investigation had taken place. This was a very public declaration posted in advance of meeting with the complainant. The Posting demonstrated a certain partisan approach and I consider that the procedural framework of addressing the alleged wrongdoing should have been placed in the hands of someone who had no prior “skin in the game”. Mr B was the general manager of the premises and had declared his views on the posting publicly. While, he may not have intended to take sides, I have formed the opinion that he was overly close to the events and in theory was involved in fact finding , investigation , disciplinary and dismissal which may have compromised the application of fair procedures.

However, the Complainant behaved in a very bizarre manner in the aftermath of the posting by first demanding that meetings take place in his Solicitors office and secondly by not turning up to two schedule meetings. The respondent posed a reasonable question to the complainant in relation to the postings and he refused to answer, while simultaneously placing his social welfare dockets for signature. He did not have representation, yet Legal representation was expressly permitted. He was underrepresented by his own choosing.

I found the complainant to be very belligerent in his evidence and very dismissive towards his former employer. While all employment relationships are meant to be constructed on a foundation of trust and confidence, I found the complainants absence from any reasonable engagement with his employer from the moment he was requested to delist the Respondent as his employer at 14.36 hrs on 6 April 2017 to the recorded exchange at the Appeal Meeting on November 1, 2017 to be disrespectful and contra productive.

At times, I felt he was taunting his former employer by threatening the WRC and Court prior to an analysis of August 6. In addition, he told the Respondent that they would never be able to prove they were listed on the social media page. I found this to be very immature from a Security Guard of such seniority with an unblemished work record.

From my consideration of the evidence, I am certain that the Respondent was keen to resolve the matter early on with the complainant, but there was no meaningful engagement.

It is undisputed that the Respondent had not compiled a dossier of complaints or complainants or indeed any witnesses to the social media postings and the overarching concern was the knock-on negative publicity and fall off business. In my consideration of the complainant’s evidence, I found that he had not taken account of this eventuality. This had caused a broader chasm between him and his employer.

In this case, the complainant and the company would have benefitted from the availability of a Social Media Policy which delineated that employee’s social media postings could not be attributed to be the views of the employer and which earmarked the consequences of a breach of the Policy. The question for me is was it reasonable that the Respondent dismissed the complainant for making negative remarks on a radio social media page? Can the Dismissal be saved by the Respondent reliance on Section 6(4) of the Act on conduct justifying dismissal?

I must find that the Respondent was extremely concerned about the negative publicity of the complainant’s public anti-gay commentary during a Gay Pride Festival held in the vicinity. There is no doubt that staff had to field a lot of criticisms and I accept that the Business has lost business as a result.However , evidence of this was not placed before the complainant .

However, the company procedures ensure that an investigation takes place as part of a Disciplinary procedure and I have found that the Respondent by passed this key Inquiry in the case. I accept that the Respondent experienced a certain amount of exasperation because of the complainant’s lack of respectful engagement, but this was not enough grounds for them to bypass the fundamental tools of Inquiry, which anchor fair procedures.

I cannot establish that the Respondent had substantial grounds to dismiss the complainant. The contract and indeed the Disciplinary procedure were silent on the acceptable parameters of social media interface with work. In short, I could not establish if the Complainant had been informed to refrain from introducing his Social Media presence as an employee of the Business in advance of August 6. The action was not listed in the section of gross misconduct. I have found that the Respondent moved to dismissal accompanied by a high level of exasperation in respect of an employee who presented as absent in engagement. I found this to be unreasonable from a large employer.

On balance, I found the complainant to have played a spectacularly large part in his own demise. Had he heeded the initial text from Mr A, it is quite likely that his opinions, which he deemed personal would have remained so. The Respondent had not asked him to alter his views. He was asked for an explanation of why he wrote comments which placed the company at risk? They sought to distance the company from the views.The Respondent was deeply embarrassed by the views expressed by the complainant . The Complainant did not address this omission in his evidence.

I found from the evidence, that his behaviour during the September 27 and November 1 meetings was very hostile and accusatory of his employer and was out of such when I considered that he still needed their help and support in completing DSP dockets. Crucially, the complainant never asked to be returned to work in the 7-month period at the centre of the case.

While, I continue to hold some misgivings in relation to the Respondent interface with the Social Media profile attributed to the complainant, I note that there was no evidence adduced of any measures taken to remove the postings from the Radio Social Media page. The sole action taken was to ask the complainant to remove his workplace from his Social Media Profile. I appreciate that this was motivated by way of Business imperative.

In all the circumstances of the case, I find that the complainant was unfairly dismissed through summary dismissal. I could not establish that substantial grounds accompanied the dismissal. I have found that the Respondent had insufficient regard for measures short of dismissal and had not upheld fair procedures. Of note was the absence of a presiding Social Media Policy. I appreciate that the Respondent acted primarily in damage limitation to protect the business.

However, that is not the full story. The complainant was not present in any meaningful way in his own defence in this case and did not engage with an employer who up to August 6 had no stated issues with his performance. This approach served to his detriment. Crucially, he did not respond to the first plea from the Respondent on August 6.

I find the complaint of Unfair Dismissal has been made out and is well founded.

CA -00022176-002 Terms of Employment

I have considered both parties outline of this complaint. I have considered a copy of the Contract of Employment offered at hearing. This did not comply with the requirements provided for in Section 3 of the Act, where a written statement signed by the employer must be given to the complainant not later than 2 months after the commencement of the employer.

I find that a continuous breach of Section 3 (1) of the Act prevailed here. The complaint is well founded.

Decision:

CA-00022176-001 Unfair Dismissal Claim

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the complainant was unfairly dismissed by the Respondent accompanied by a marked contribution to his own demise.

I have found that the only practical remedy open to me is that of compensation. While the Respondent expressed a disquiet with the evidence of mitigation and loss, I shared that disquiet.

In a period, March 2018 to January 2019, I could not establish a veritable effort to find work, to mitigate the loss.

In addition, I note that the complainant is planning on “self-employment “going forward. I cannot hold the Respondent responsible for losses sustained awaiting the complainants relaunch through self-employment. The loss must be attributed to the dismissal.

I order the Respondent to pay the Complainant €4,500 as compensation for his unfair dismissal.

CA -00022176-002 Terms of Employment

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint under Section 7 the Terms of Employment (Information) Act, 1994, in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment( Information ) Act 1994 requires that I make a decision in accordance with Section 3 of the Act .

I have found the claim to be well founded. I award €200 in compensation in respect of the continuous breach of Section 3 of the Act.

Unfair Dismissal, Terms of Employment.