Complainant

Respondent

Parties

Michael  Flynn

Nua Healthcare Services

Representatives

  David Doyle, Solicitor

Cian Conboy Ibec

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-00035498-001

30/03/2020

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

CA-00035498-002

30/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00035498-003

30/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00035498-004

30/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section  24 of the National Minimum Wage Act, 2000

CA-00035498-005

30/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00035498-006

30/03/2020

The Complainant was employed as a Care Worker for the Respondent.  He was dismissed for gross misconduct in relation to comments he made on a social media site.  Further complaints are that the Respondent has breached the Organisation of Working Time Act 1997 and the Minimum Wage Act 2000.  The complaint under the Employment Equality Act was withdrawn and the complaint under the Minimum Notice & Terms of Employment Act is the subject of decision under ADJ-0026364.

(CA-00035498-001)

Allegation of Gross Misconduct:

The respondent dismissed the complainant on the grounds that the complainant:

Published information that was defamatory, abusive or offensive in relation to the respondent and or its servants, agents or service users.

Published confidential or business sensitive information about the respondent, its employees or service users.

Published information damaging to the reputation of the respondent, its employees or service users.

Published comments seen as unacceptable, extending to defamatory, relating to colleagues or stakeholders of the respondent, its employees or service users.

Behaved in a manner in breach of the respondent’s social media policy.

The respondent claims that the complainant posted comments on a healthcare assistant’s forum, that could only relate to the respondent and that this amounted to gross misconduct.

Gross/Serious Misconduct is defined in the respondent’s Disciplinary Policy as misconduct “where the misconduct is such that breaches the bond of trust that must exist between the employer and employee, to such an extent, that it effectively ends the relationship and warrants dismissal without notice”.

Examples of Gross/Serious Misconduct listed in the respondent’s Disciplinary Policy include:

“Using social media or the internet or other media in a manner that could reasonably be expected to have negative effect on the reputation of the company or its team members, or in a way that does not respect the dignity and privacy of others.”

Complainant’s Position:

The complainant did post comments on a healthcare assistant’s forum, “Social Care Workers of Ireland”, the background to which related to 6% of additional funding allocated to healthcare service providers from the HSE for the expressed purpose of paying staff an increase in wages. The complainant in his post to the forum wrote in general terms about the privately owned, taxpayer funded, for profit healthcare companies’ treatment of staff throughout an industry that was profit driven and where, to a large extent, staff endured poor working conditions, including pay.

No company or location was mentioned by the complainant in the aforementioned post and the complainant maintains that the statements made by him, even if defamatory, which is denied, could not reasonably be understood as referring to the respondent. At the time, the complainant was employed with both the respondent and another healthcare service provider.

The complainant claims that the respondent does not have an exemplary track record regarding its operations both in terms of the operation of its facilities and the protection, safety and welfare of its staff and residents as evidenced by the newspaper reports at Appendix 2 and, in that context, the one specific reference in the posting to an incident regarding a service user, if it were the case that this could reasonably be understood as referring to the respondent, which is denied, it could be considered to be fair and reasonable publication on a matter of public interest made in good faith, the discussion of which was for the public benefit.

The complainant posted the allegedly offending comments on the forum on the 12th September 2019.

The complainant was invited to an investigation meeting at which he was unaccompanied. He was told that he had the right to be accompanied by a fellow employee or a trade union representative but not a legal representative as it was not disciplinary and merely a fact-finding exercise.

It was put to the complainant that what he had posted could identify the respondent amongst its employees and other individuals who were aware of what was going on in the organisation, such as family members of staff. It was also put to the complainant that what he had posted was inappropriate. The complainant maintained that he did not specifically mention the respondent by name and that accordingly he could have been referring to any healthcare provider and that furthermore the forum was not accessible to the general public, as it was a private page. The complainant did admit that in hindsight it was probably not the best place to make the comments.

The complainant was asked on numerous occasions if he agreed with the respondent’s values, which looking at it objectively could lead one to the conclusion that the respondent saw the complainant as a troublemaker. The complainant indicated that he had raised concerns with management and said that he believed that workers were being exploited in relation to the issue of remuneration. He further acknowledged that he saw the risks of sharing such details on the forum now that this had been highlighted to him.

On the 22nd October 2019, the investigation report was submitted. It concluded that there was a case to answer and a disciplinary hearing was held on the 29th October 2019. The complainant was told that he could have a fellow employee or a trade union representative present with him but not a legal representative, even though the process had now advanced to disciplinary stage. While it had been indicated to the complainant in the letter inviting him to the meeting that it could lead to disciplinary action up to and including dismissal from employment, the complainant claims that the respondent did not consider any disciplinary measures other than dismissal and accordingly he did not fully engage in the hearing as he believed that the respondent had already made up its mind. The personnel conducting the disciplinary hearing kept asking the complainant to admit that he had been referring to the respondent in the comments he had posted, when this had already been dealt with at investigation stage.

On the 7th November 2019, the complainant was informed that his employment was terminated with immediate effect.

The complainant initially decided to appeal the decision, however, later changed his mind given that he was not permitted to have representation other than from a fellow employee or trade union representative.  

The complainant claims that the respondent failed to follow its own disciplinary policy by placing the complainant on suspension the day following the posting on the discussion forum and immediately proceeding to an investigation. It is submitted that the comments posted by the complainant were not at a level of seriousness as to warrant this course of action and that the more proportionate response would have been to deal with whatever concerns the respondent had either by having a line manager bring the matter to the attention of the complainant and resolving any issues without recourse to formal disciplinary procedures or where disciplinary action was deemed appropriate following investigation that informal caution or counselling, formal verbal or written warning could instead have been administered. Instead, the respondent chose not to engage with the complainant and to dismiss him from his employment. The complainant claims that the respondent’s investigation of the matter was flawed and contrary to the principles of natural justice.

The complainant was out of work from the date of his termination with the Respondent on the 7th November 2019 until the 3rd February 2020. His loss of earnings relate to that 3 month period only. If he had still be employed with the Respondent during that period, he would have worked on average 100 hours per month at a rate at €12.50 per hour gross. Therefore, his loss of earnings is calculated at €3,750.00.

Section 27, Organisation of Working Time Act, 1997

CA-00035498-003 (Sunday Premium)

Complainant’s Position:

The claim under this section (replaced by Section 41 of the Workplace Relations, Act 2015) was submitted on the 30th March 2020 and relates to the alleged failure of the respondent to pay a Sunday premium, in circumstances where the respondent claims that the complainant’s salary of €12.50 per hour was inclusive of premium for Sundays.

The complainant had two written contracts of employment with the respondent. The first described as a “Contract of Employment for Relief Staff” dated the 2nd September 2016 and the second described as a “Contract of Employment for Permanent Part-Time Team Member” dated the 21st August 2019. The 2016 contract provides for a salary of €12.50 per hour inclusive of premium for Sundays, Public Holidays and unsociable hours. The 2019 contract provides for an hourly rate of €12.25 determined taking into account the requirement to work Sundays. This latter contract specifically provides for a premium for unsociable hours and for Public Holidays and there is clearly a difference between both contracts.

While the complainant did receive an additional premium for Public Holidays and unsociable hours, he never received any additional remuneration for Sunday work, although it is claimed by the respondent that Sunday premium was included in his basic salary, and when he raised the matter with the respondent on several occasions, he was never given a satisfactory answer. The complainant always received a premium for Public Holidays and unsociable hours, despite what is written in the 2016 contract. No specific premium was paid for Sundays, with the respondent claiming that it was a composite rate of pay. The respondent could have clarified the issue in the 2019 contract but chose not to, leading the complainant to the conclusion that he was not in fact being paid a premium for Sunday work.

The claimant was dismissed from his employment with the respondent on the 7th November 2019. The respondent claims that the claimant did not work any Sunday during the period from the 1st October to the 7th November 2019 and was therefore outside the statutory six-month time limit. The complainant was on paid suspension at the time and so could not possibly have workedSundays during this period. The claim was submitted within six months of his dismissal and so, it is respectfully submitted, is within time.

Section 27, Organisation of Working Time Act, 1997

CA-00035498-004 (Hours of Work)

Complainant’s Position:

The complainant claims that the respondent did not provide for its employees to avail of rest breaks as provided for in the EU Working Time Directive (2003/88/EC) and that the reason given was that the health care sector had a derogation absolving them of having to facilitate breaks. In those circumstances, the respondent claims that employees could avail of compensatory rest, however, the complainant claims that this was never offered or given despite the contract of employment providing for daily rest intervals. Employees of the respondent were required to complete time sheets specifying break records. The complainant claims that these would not permit him to indicate that he had not received his breaks as they would automatically default to Yes, indicating that he had received his breaks. This system was changed in 2019 with the use of a break record sheet filled out manually. The complainant never signed the sheets as by doing so he would have indicated that he had taken the breaks as recorded when in fact he had not. The complainant sought copies of the sheets pursuant to a Freedom of Information request but was informed that he was not entitled to copies as they were company property. In June or July 2019, the complainant did get sight of at least one sheet that bore his signature and when he pointed this out to his team leader, he was told to cross out the signature already on the sheet and write his own signature instead. The complainant refused to do this and pointed out that the signature purported to be his on the sheet had been forged.

Section 24, National Minimum Wage Act, 2000

CA-00035498-005

Complainant’s Position:

The complainant claims that he was penalised by the respondent having been dismissed on the grounds of gross misconduct for, in addition to what is set out above in relation to the claim of unfair dismissal, querying the fact that he did not receive a pay rise that other staff at his grade had received. This claim is specifically under Section 36 of the National Minimum Wage Act, 2000. The complainant claims that the respondent has a very high staff turnover and that on the final day of his induction training in 2016, the then CEO addressed the new employees and said that employees should not speak about their salary amongst colleagues. Despite having worked three years for the respondent, the complainant never received any pay increment even after the respondent received an allocation from the HSE to facilitate a pay raise for staff. While some of the complainant’s colleagues did receive a 1% increase in salary, the complainant did not pay and on querying this he was informed that he was already on too high an hourly rate to qualify for the 1% raise. The complainant was on an hourly rate of €12.50 since he commenced with the respondent and to have qualified for the increase, he would have had to be on €12.25 per hour. Apart from being discriminatory, the complainant claims that despite, according to his line manager, being very good at his job, he was penalised for raising the issue.

The Complainant gave sworn evidence.  He stated that as far as he was concerned the comments he made were on a private site.  He raised his complaints about not receiving the 1% increase at many meetings.  He felt strongly that the Respondent was in receipt of taxpayers money to give increases to staff wages and they had not received those increases.  He did not identify any individuals in his comments. He believed he would get no justice from the Respondent and they clearly wanted to get rid of him.

The Complainant was dismissed from his employment with the Respondent for gross

misconduct, following a thorough process, undertaken by the Respondent to ensure

maximum fairness and transparency was afforded to the Complainant, in accordance with

fair procedures and natural justice. He now alleges he was unfairly dismissed, under the Act

(amongst a litany of other claims). On or about 12 September 2019 the Complainant actively took part in a social media forum, where he posted a number of disparaging comments, containing sensitive details and information, referring to his employer at that time, “a private healthcare company in the ID sector”.   These comments were brought to the Respondent’s attention by a concerned team member, who immediately recognised these comments and the details contained therein as referring to the Respondent. 

In a phone call on 13 September 2019, the Complainant was informed that he was to be placed

on paid suspension pending an investigation into the allegations. 

The Complainant was invited to an investigation meeting by way of letter dated 16 September

2019. Therein he was informed of his right to

representation as per the company disciplinary policy; and relevant supporting documents

including screenshots of the social media comments in question, the Terms of Reference,

copies of the Social Media policy, Disciplinary policy and Code of Conduct enclosed.  The allegations subject to investigation were set out as follows:

·       Publishing information which is defamatory, abusive or offensive in relation to any staff

·       member, manager, office holder, shareholder or service user of Nua Healthcare Services.

·       Publishing confidential information or business-sensitive information about Nua Healthcare

·       Services, its employees, and service users.

·       Publishing information that may damage the reputation of Nua Healthcare Services, its

·       employees, and Service users.

·       Publishing comments relating to colleagues or stakeholders of the Company, including

·       comments which would be seen as unacceptable in the workplace, extending to defamatory comments. 

·       Behaving in a manner that is in breach of the Social Media policy.

The Complainant attended an investigation meeting on 18 September 2019, and a disciplinary meeting on 29 October 2019.  In advance of the Disciplinary meeting, a copy of the investigation report, social media postings, relevant supporting documentation and policies were once again provided with the invitation letter.

He chose not to avail of his right to representation.  His responses repeatedly consist of phrases such as “Nothing”; “No Comment”; “I am

not confirming or denying”; which are reflective of the disinterested and disengaged approach

adopted by him in attending. Even when asked an arguably straightforward ‘yes’ or ‘no’

question as to whether certain comments were written about Nua Healthcare or not, his

responses were entirely vague and conditional – “it mightn’t be”; “it could be I said but not necessarily”; “I am not saying that about anybody in particular”.

Following due and thorough consideration of the established facts, the relevant

documentation, company policies and Complainant responses; the Disciplinary panel

communicated their decision in a meeting on the morning of 7 November 2019.

The decision to summarily dismiss the Complainant with immediate effect, from his

employment was confirmed in writing by way of letter that same

afternoon. Said letter also informed him of his right to appeal that decision in writing within

5 days and to whom such an appeal should be directed. 

Whilst the Complainant initially sought to exercise his right to appeal, noting his grounds of

appeal in an email dated 14 November 2019 he ultimately withdrew from that

process prior to attending at any of the scheduled and re-scheduled (at Complainant’s

request) appeal meetings. The invite to appeal letter dated 21 November 2019 

did once more remind the Complainant of his right to be accompanied by a colleague or trade

union representative per the company disciplinary policy and in accordance with SI 146/200

– despite veiled assertions and reasoning put forward via email when withdrawing his

appeal. 

In accordance with the Unfair Dismissals Acts 1977 - 2015, the dismissal of an employee shall

be deemed not to be unfair if it results wholly or mainly from the conduct of the employee.

Having considered all the facts, the responses and explanations of the Complainant were not

considered reasonable nor sufficient such as to mitigate the extreme seriousness and far reaching

implications of his actions.

The Complainant’s actions amounted to gross misconduct.

When considering what sanction to apply the company had regard to the seriousness of the

allegations and also the representations made by the Complainant within the process itself.

In relation to the sanction imposed by the Respondent, the principles to be applied in cases of

gross misconduct have been clearly established over time, and the test as set out in Looney &

Co. Ltd v Looney, UD 843/1984 is as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor

is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have

acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would

substitute our mind and decision for that of the employer. Our responsibility is to consider

against the facts what a reasonable employer in the same position and circumstances at that

time would have done and decided and to set this up as a standard against which the employer’s

action and decision be judged.”

It is the Respondent’s position that a “reasonable employer in the same position and circumstances”

would have reached the same determination in the circumstances of the within case. As such

the company’s decision to dismiss was reasonable and fair in the circumstances, and no unfair

dismissal took place.

The actions of the Complainant destroyed the company’s trust and confidence in him and

rendered the continuation of the employment relationship impossible, therefore justifying

dismissal. This position has been upheld by the Employment Appeals Tribunal on a number

of occasions, including in Knox Hotel and Resort Ltd, UD 27/2004.

The Complainant posted comments on a “Social Care Workers of Ireland” group, which is advertised as a private group for social care workers to share employment opportunities, current development, and support. It asks that members respect each other along with their views and opinion. At the time of writing, this group has in excess of 13,000 members – many of whom are past or current

Employees of the Respondent; and others who may be prospective employees.

The Complainant was clearly identifiable, as was his employer, and more concerning is the

fact that he shared confidential information regarding a situation involving a vulnerable

Service User in the care of Nua Healthcare, and confidential information regarding the

Respondent - his post was notified to the Respondent by a colleague reiterating this point.

Not only was the Respondent recognisable, but many of the representations shared by the

Complainant were completely wrong, inaccurate, and misleading, with many of the

Respondent’s positive endeavours portrayed in an unjustifiably negative light.

The Complainant’s actions clearly jeopardised the Respondent, their Service User’s and their

reputation as both an employer and a business.

The Respondent’s policies are also clear and unambiguous with regard to the use of social

media. Their Code of Conduct highlights that employees should “conduct themselves in a

manner that enhances confidence in Nua Healthcare Services. . . are expected to adhere to the Company Social Media Policy. . . taking care not to engage in public forums”. Whilst the Social Media Policy itself is explicit in stating that “all staff are prohibited from publishing information on any social media site where such information could negatively affect the Respondent’s Services. . .”. Should any doubt remain as to the seriousness of such a breach, the Company disciplinary policy is direct in noting, as an example of behaviour that amounts to Gross/Serious Misconduct that may

result in dismissal without notice – “using social media or the Internet or other media in a manner

that could reasonably be expected to have negative effect on the reputation of the company or its team members, or in a way that does not respect the dignity and privacy of others”.

In relation to the procedures used to implement this dismissal, the Complainant was afforded

all benefits of fair procedure, in line with the company’s policy, the WRC Code of Practice on

Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural

justice.

Sworn evidence was given by Manager D who was part of the Investigation Team in the first stage of the process.  She stated that she and the other Manager involved were struck by Complainant’s lack of engagement and his vague answers to their questions.  They concluded that on balance the Complainant was referring to the Respondent in his posting and that he had a case to answer.          Sworn evidence was given by Manager K who conducted the disciplinary meeting.  She stated that she prepared thoroughly for the meeting, consulted the Respondent’s Disciplinary procedure, Investigation Report and documents relating to the issue and the Social Media policy.  She reminded the Complainant of his right to representation but he declined.  When questions were put to him in the meeting, the responses from the Complainant ranged from “could be..”, “mightn’t be..”, “that’s your opinion..”  The Complainant had no engagement in the process and failed or refused to defend himself in the matter. Having reviewed the minutes of the meeting, and reviewed the code of conduct, behaviours expected of employees, social media policies and disciplinary policy and procedure, the conclusion was that there was a complete breach of trust in the employment relationship and no option but to summarily dismiss the Complainant.

S.27 of the Organisation of Working Time Act 1997 – Sunday Premium

CA-00035498-003

Without Prejudice – Time Limits

Acknowledging the repeal of Section 27 of the 1997 Act by the Workplace Relations Act, 2015,

The Respondent refers to section 41 of the 2015 Act which similarly states:

S 41. (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint

referred to him or her under this section if it has been presented to the Director General after

the expiration of the period of 6 months beginning on the date of the contravention to which the

complaint relates…….

(8) An adjudication officer may entertain a complaint or dispute to which this section applies

presented or referred to the Director General after the expiration of the period referred to in

subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if

he or she is satisfied that the failure to present the complaint or refer the dispute within that

period was due to reasonable cause.

The Respondent submits that there is no discretion under the Act in any event to further

extend the time limit past the initial 6-month period, unless “reasonable cause” is proven.

The Acts refer to “reasonable cause” as permitting an extension of the statutory time-limits.

The tests applied by the Labour Court for extensions of time under the Organisation of

Working Time Act have been well established e.g. the case of Cementation

Skanska v Carroll, DWT0338.

The claim was submitted on 30 March 2020. The scope of this claim therefore is the six months,

back to 01 October 2019. The Complainant did not work any Sunday during the period of 01

October 2019 to 7 November 2019 when his employment was ultimately terminated.

Notwithstanding, the respondent refutes the allegation in its entirety as the complainant receives a

composite rate inclusive of Sunday premium and this is outlined in his contract(s) as follows:

2 September 2016:

The salary quoted includes premium for Sundays and Public Holidays and unsociable hours

21st August 2019:

“The hourly rate has been determined taking into account the fact that you are required to work

Sundays. You will be paid an additional €2 per hour allowance for all hours on a waking night

shift (ie. 23.00 to 7.00 or 00.00 to 8.00). You will be paid a set rate of €78.40 for a sleepover.

Taking the minimum hourly rate of €9.80 per hour in the year 2019, there is a €2.70 differential

between the minimum wage and the complainant’s basic hourly rate of €12.50 per hour. The

Sunday premium is contained within this differential. 

The subject matter of this hearing has been considered at length in the High Court case of

Trinity Leisure Holdings Limited -v- Sofia Kolesnik and Natalia Alfimova [2019] IEHC 654.

Here, Binchy J stated that,

“ … The language used in the contracts is plain English and could not be more clear. The

contracts state that the hourly rate of pay “includes your Sunday premium based on you getting

every third Sunday off”. The wording is not buried in small print somewhere in the middle of

the contract, but appears on the front page thereof, in the third clause of the contract.

It is the respondent’s position that no breach of the Organisation

of Working Time Act 1997 has occurred and as such this claim should be dismissed.

The complainant was in receipt of a composite rate of pay and therefore no breach of Section

14 of the Act has occurred.

S.27 of the Organisation of Working Time Act 1997 – Rest Breaks

CA-00035498-004

Without Prejudice – Time Limits

The claim was submitted on 30 March 2020. The scope of this claim therefore is the six months,

back to 01 October 2019. The Complainant did not work any shifts during the period of 01

October 2019 to 7 November 2019 when his employment was ultimately terminated. The

Complainant was on paid suspension as and from 13 September 2019.

In light of such and with reference to both the Legislation and Case Law set out in response

to complaint -003 above, the Respondent once more submits that this complaint is wholly out

of time and that the Workplace Relations Commission does not have the requisite jurisdiction

to hear this claim. S.27 of the Organisation of Working Time Act 1997 – Rest Breaks

Substantive Response

The Respondent operates its break and rest period practices in accordance with those set out

in the Organisation of Working Time Act 1997. That being said, all rest breaks are subject to

service user requirements meaning that in certain circumstances, employees may have to avail

of compensatory rest where they do not get an opportunity to take a break – per S.I No. 21 –

Organisation of Working Time (General Exemptions) Regulations 1998 (Appendix B). Team

members are asked to inform their line manager if they do not get such an opportunity due to

the continuity of care of the service user.

“WHERE A TEAM MEMBER DOES NOT GET AN OPPORTUNITY TO TAKE A

BREAK (DUE TO CONTINUITY OF CARE OF A SERVICE USER), THEY SHOULD

INFORM THEIR MANAGER AS SOON AS POSSIBLE THEREAFTER, SO AN

ALTERNATIVE COMPENSATORY REST PERIOD CAN BE ASSIGNED.”

For the avoidance of doubt, the Complainant has made reference to an old version of the break

record sheet which he describes as requiring an employee to fill in “Y” / “N” beside their

break entitlements. Suggestions that this form covertly defaulted to Y are inaccurate and

irrelevant, particularly in circumstances where the majority of employees filled out these

forms by hand on printed copies, as opposed to using Excel, as the Complainant appears to

have done. The use of this form was discontinued in March 2019 more than 12 months prior

to the lodging of the within Complaint.

The Respondent since uses an employee break record sheet/Blank Break Record Sheet - to record employees rest periods. This sets out each employee’s shift time(s) and

associated break entitlement for that shift. The employee is asked to sign the sheet in

acknowledgement when they take their indicated break entitlement.

The Complainant never signed the sheet beside his name, shift and break entitlement. Sworn evidence was given by Manager D who stated that the house the Complainant worked in was a low dependency unit, and she was very keen on staff getting their breaks.  She also tried very hard to get the break sheets signed by the Complainant.

S.24 of the National Minimum Wage Act, 2000 – Penalisation

CA-00035498-005

At time of cessation, the Complainant was on a basic hourly rate of €12.50 (€14.50 if he were

to work a waking night shift) which was significantly over the national minimum wage of

€9.80 at that time – it is impractical to suggest he therefore could have been penalized in

asserting his rights to a minimum wage he already received.

The Respondent also notes Section 23 of the Act which provides that:

“an employee may request from his or her employer a written statement of the employee’s

average hourly rate of pay for any pay reference period (other than the employee’s current pay

reference period) falling within the 12-month period immediately preceding the request.”

No such request was ever made by the Complainant and as can be viewed from a review of

his payslips and hours worked, it is clear that the Complainant received an hourly rate well

in excess of the national minimum wage at that time.

It is suggested this claim is misguided in law – this is clear from the ‘specifics’ section of the

WRC Complaint form where the Complainant alleges discrimination due to requesting a pay

increase – details which are not representative of a complaint that one might or can in fact

pursue under this Act, particularly in circumstances where his evidenced earnings far

exceeded the national minimum wage.

However, as per the letter dated 19 June 2019 regarding the only pay award issued to staff in

that year, the Complainant was communicated with in writing, advising him that the rate he

was earning (€12.50) exceeded the Nua Healthcare rate of pay for the associated role which

was only increased and brought to €12.25 at the time – effective 1 August 2019

CA-00035498-001   Unfair Dismissals Act 1977

The Complainant was dismissed from his employment with the Respondent for gross

Misconduct following the posting of comments on a social media site which the Respondent believed caused damage to its reputation and were posted in contravention of its social media policy.  

Section 6 (4) (b) of the Act provides that a dismissal shall be deemed not to be unfair if it arises wholly or mainly from the conduct of the employee.

In O’Riordan v Great Southern Hotels UD1469/2003, the EAT set out the appropriate test for determining claims relating to gross misconduct:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing.  The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

In assessing the proportionality of the sanction, Noonan J. in Bank of Ireland v Reilly IEHC 241 stated:

“The question.. is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

BHS v Burchall [1978] IRLR 379 is also one of the key decisions in Unfair Dismissal cases when considering a dismissal arising from misconduct.  

In that case, the Employment Appeals Tribunal determined that where misconduct is alleged, an employer has to genuinely believe that the employee is guilty, and has to have reasonable grounds for that belief, which must have been reached following a reasonable investigation.  The employer does not have to prove guilt to a criminal standard and does not have to adopt a procedure comparable to a criminal investigation.  Further it was not the role of the Tribunal to consider whether the employee was actually guilty of the alleged misconduct when deciding if the dismissal was fair.  

In this instant case, I base my findings and conclusions on three key questions

 (1) Did the Respondent have a genuine belief based on reasonable grounds arising from a fair investigation?,

(2) Was there a fair investigation? and

(3) was the penalty proportionate? 

I note the evidence of the Managers who conducted the investigation and disciplinary meetings that the Complainant did not engage and failed or refused to confirm that he was referring to the Respondent in his comments on the social media site.  I find that they came to a genuine belief that he was referring to the Respondent in the comments.  The Complainant did not express any regret or remorse for his actions, leading to the breakdown in the employment relationship and the trust required to continue or restore it.   I note the offer of representation made and I note the Complainant wished to have a solicitor with him in the meetings.  While some element of discretion may have been desirable, and the Respondent may have been more accommodating in that request, however the Supreme Court in McKelvey v Iarnrod Eireann/Irish Rail [2019] IESC 000ruled that legal representation during disciplinary proceedings will only be required in exceptional circumstances.    On review of the minutes of the meetings, I find that the Respondent’s Managers gave the Complainant every opportunity to defend himself but he refused to engage.  Having reviewed the evidence and submissions in relation to the investigation and disciplinary meetings, and the clear policy of the Respondent that employees are prohibited from publishing information on any social media site where such information could negatively affect the Respondent’s Services, the conclusion is that the Respondent formed a genuine belief that the Complainant was guilty of the alleged wrongdoing and had conducted a fair and open investigation and disciplinary process.  In relation to proportionality, the evidence shows that the Respondent had considered a lesser penalty but in light of the Complainant’s complete failure to express any remorse, or indeed admit to the wrongdoing, the Respondent was left with little alternative option, and had therefore acted reasonably in dismissing the Complainant.  I do not uphold his complaint that he was unfairly dismissed.

CA-00035498-003  Organisation of Working Time Act 1997 – Sunday Premium

Section 41 (6) of the Workplace Relations Act 2015 provides that a complaint may not be entertained unless it is submitted within 6 months of the date of the alleged contravention.  This complaint was received on 30 March 2020 and therefore the cognisable period is from 1 October 2019 to 7 November 2019.    No argument was submitted for an extension of time under Section 41 (8) of the Act.      I note the evidence that the complainant receives a composite rate inclusive of Sunday premium and this is outlined in his contract.

I find the complaint to be not well founded.

CA-00035498-004    Organisation of Working Time Act 1997 – Rest breaks

Section 41 (6) of the Workplace Relations Act 2015 provides that a complaint may not be entertained unless it is submitted within 6 months of the date of the alleged contravention.  This complaint was received on 30 March 2020 and therefore the cognisable period is from 1 October 2019 to 7 November 2019.  No argument was submitted for an extension of time under Section 41 (8) of the Act.   I note the Complainant was not in work during the period.   I note the evidence that (a) the employees are urged to inform management if they do not get their breaks so that compensatory rest can be provided as in S.I No. 21 – Organisation of Working Time (General Exemptions) Regulations 1998 and (b) the Respondent’s evidence that employees are required to fill in the break times on a record provided to them.  I note the evidence that the forms the Complainant referred to were discontinued a year before the Complainant’s complaint was lodged and I note the evidence that the Complainant refused to sign break forms.   I note that the Respondent uses an employee break record sheet for employees to record their rest periods.

I find the complaint to be not well founded.

CA-00035498-005  National Minimum Wage Act 2000

The complainant claims that he was penalised by the respondent having been dismissed on the grounds of gross misconduct for, in addition to what is set out above in relation to the claim of unfair dismissal, querying the fact that he did not receive a pay rise that other staff at his grade had received. This claim is specifically under Section 36 of the National Minimum Wage Act, 2000.

Section 36 of the Act provides:

36. – (1) An employer shall not cause or suffer any action prejudicial to an employee having –

(a) exercised or having proposed to exercise a right under this Act,

(b) in good faith opposed or proposed to oppose by lawful means an act which is unlawful under this Act…

No evidence has been provided that the Complainant exercised any right or opposed or proposed to oppose any act which is unlawful under the Act.  He therefore cannot avail of the National Minimum Wage Act 2000 to pursue his complaint.  In any case, as has been referred to his wage was in excess of the National Minimum Wage.  This complaint is misguided and I conclude the complaint is not well founded.

Unfair dismissal, social media posts, not well founded.  Breaks, Sunday premium, not well founded.