Complainant

Respondent

Anonymised Parties

A Healthcare Assistant

A Nursing Home

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-00028413-001

14/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00028413-002

14/05/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00028413-003

14/05/2019

The complainant was employed by the respondent as a Healthcare Assistant from 3rd July 2017 until her dismissal for gross misconduct on 9th November 2018. The complaints were submitted to the Workplace Relations Commission on 14th May 2019.

Note: Complaint applications No’s: CA-00028413-002 and CA-00028413-003 were withdrawn at the Adjudication Hearing.

The respondent contends that the complainant was not unfairly dismissed. The respondent stated that during an investigation process into a complaint of bullying and harassment made by the complainant against her Line Manager, a colleague of the complainant made a statement that the complainant had posted a recording of residents of the Nursing Home on Social Media accompanied by the caption “f..k my actual life”. The respondent stated that the complainant was suspended on full pay while the matter was investigated and that a robust investigation and disciplinary process was carried out in line with its policies and procedures. The respondent stated that following the disciplinary process, the complainant was dismissed on the grounds that “breaching the respondent’s social media policy resulted in an irrevocable breach of trust and confidence”. The complainant was summarily dismissed for gross misconduct.

The respondent contends that the dismissal was procedurally and substantively fair having regard to all of the circumstances of the complainant’s actions. The respondent cited the cases of Elstone v CIE (High Court, 13 March 1987, unreported.) and Loftus and Healy v An Bord Telecom (High Court, 13 February 1987, unreported.) in support of its position that procedural flaws (although denied) do not render a dismissal unfair and that “all of the circumstances” must be considered. The respondent also cited the cases of Shortt v Royal Live Assurance Ltd [2008] IEHC 332, Laffoy J, RAS Medical Limted T/A Park West v The Royal College of Surgeons in Ireland [2017 IECA 228 and Kelly v CIE (Circuit Court, 11 February 1985) in support of its position that the respondent acted reasonably throughout the process and that the complainant was not unfairly dismissed.

The complainant contends that she was denied fair procedures and was unfairly dismissed from her employment on 9th November 2018. The complainant acknowledged that the complaint was submitted to the Workplace Relations Commission (WRC) outside of the statutory six-month period and is seeking an extension of time as the short delay was due to the psychological and emotional distress she experienced throughout the disciplinary process.

The complainant stated that having submitted a bullying and harassment complaint against her Line Manager in September 2018, the complainant was placed on a “supervision chart” which she felt was unfair and only applied to her as a result of having submitted the bullying and harassment complaint. The complainant stated that she accepted her error in posting the video to Snapchat and immediately apologised for her actions and assured the respondent that it would not happen again. The complainant outlined that other staff had also posted items on Social Media, yet they had only received final written warnings for their actions. The complainant argued that despite management’s assurance that it would be consistent in relation to its handling of the disciplinary process, it did not apply fair procedures to the complainant and was not consistent with the disciplinary sanction applied to the complainant in comparison to the sanctions received by other staff. The complainant also stated that she had not received adequate training on the Social Media Policy and that the respondent’s decision to summarily dismiss her was unreasonable and disproportionate. The complainant is seeking compensation in relation to her complaint.

Both parties provided written submissions at the adjudication hearing. Having considered all of the written documentation submitted by both parties, and the evidence adduced at the hearing of this complaint, I find as follows:

The Applicable Law

The Unfair Dismissals Act, 1977.

Sections 6(1) and 6(4) of the Unfair Dismissal Act 1977 at relevant parts state as follows:

6.(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

6.(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The complainant was summarily dismissed on 9th November 2018 for gross misconduct having breached the respondent’s Social Media Policy.

Timing of the complaints

The complaints were submitted to the WRC on 14th May 2019. Based on a dismissal date of 9th November 2018, the complaint was submitted approximately 6 days outside of the statutory six-month period for the referral of such complaints. The respondent in its submission cited the 30th November 2018 as the date of the complainant’s dismissal although this date was amended to 9th November 2018 at the adjudication hearing.

The complainant, in seeking an extension of time, outlined the emotional and psychological distress she was experiencing at the time due to her dismissal following a complaint she made of being bullied and harassed by her Line Manager. I note that very soon after the complaint was made against the Line Manager, the issue of the Snapchat video was reported to the employer and the rather rushed disciplinary process resulted in the complainant’s summary dismissal for gross misconduct. If the complainant had not been dismissed for gross misconduct, she would have been entitled to one weeks’ notice and the complaint would be within time. Accordingly, I will consider whether the complainant’s conduct meets the definition of gross conduct in the first instance. If it does not, the complaint is in time by virtue of the complainant’s entitlement to one week’s notice.

Gross Misconduct

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind thatno reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’

Band of reasonable responses.

As to whether there were substantial grounds for the Complainant’s summary dismissal on the grounds of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

 “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.”

Breach of the Social Media Policy

I have reviewed the Social Media Policy and the definitions contained therein (although not exhaustive) of Gross Misconduct. I have also reviewed the documentation in relation to the disciplinary process that followed the notification of the Snapchat video to management. It is clear that the complainant regretted her actions in relation to the video, had realised her mistake and had expressed her apologies in that regard. I also note that, unless it were saved by someone, the video would have had a very short lifespan before it was automatically deleted.

I have also reviewed the statement of the complainant’s colleague who had seen and was in possession of the Snapchat video and I note that the video had been posted a number of weeks before and had not been reported until after the complaint had been submitted in relation to the complainant’s Line Manager. While I accept the contents of the statement as submitted, I find that the complainant’s colleague could have reported it earlier, if it were such a serious breach of policy, even if she did not physically have it at that point in time due to a broken mobile phone. The fact that it was only produced/reported after the bullying and harassment complaint had been submitted, leads me to believe that it was reported to management to distract from the grievance raised by the complainant and for the focus to move to the disciplinary process which lead to the complainant’s summary dismissal. The complainant’s initial grievance of September 2018 was not concluded until July 2019, yet the disciplinary process was concluded, and she was dismissed within approximately four weeks.

Having carefully considered all of the issues raised, I find that the complainant’s actions did not constitute gross misconduct. Accordingly, I find that the complaint was entitled to one week’s notice of the termination of her employment and the complaint is within time.

Mitigation of Loss

The complainant submitted documentary proof that she was actively seeking alternative employment. Having reviewed the documents in question I am satisfied that the complainant actively sought to mitigate her losses following the termination of her employment.

Conclusions

In all of the circumstances of this complaint, I find that the complainant’s behaviour did not constitute gross misconduct and the decision to summarily dismiss her was not within the range of reasonable responses of a reasonable employer. Accordingly I find that the complaint is well founded. I have taken into account the fact that the complainant contributed significantly to her dismissal and this is reflected in the level of compensation awarded.

I find that the complaint is well founded. The complainant was unfairly dismissed. The respondent is directed to pay the complainant €7,800 (six month’s gross pay) in compensation.

Unfair Dismissal, Gross Misconduct, Band of Reasonable responses.