Complainant

Respondent

Parties

Irene  Glynn

Carlow Dental Centre Cdc

Representatives

  Self

 Self

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-00054596-001

17/01/2023

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

CA-00054596-003

17/01/2023

It is the respondent’s case that the complainant was summarily dismissed on 9 January 2023 for gross misconduct. It is the complainant’s case that her dismissal was both substantively and procedurally unfair. The complainant also contends that the employer breached the Minimum Notice and Terms of Employment Information Act 1973 in failing to provide her with notice of the termination of her employment.

The complainant commenced employment with the respondent on 20 February 2015 and was dismissed without notice on 9 January 2023. The complainant outlined that she was absent from work on certified sick leave when she received a text message from a member of management on Friday 6 January 2023 requesting that she remove a comment she was accused of having posted on a Facebook page. The complainant stated that as she was on certified sick leave, it was inappropriate for the respondent to contact her. The complainant outlined that her partner “Mr X” had her mobile phone that day as his phone was broken. Mr X saw the text from the respondent and took it upon himself to respond to the text message. The complainant was due to return to work the following Tuesday; however, she received an email on Monday 9 January 2023 from the respondent to advise her that she had been dismissed for gross misconduct. The complainant submitted that she was not given an opportunity to defend herself and that she was not given notice of termination of employment.

The complainant stated that she was not a member of a political group; that she was free to share her opinions; and that she was entitled to freedom of speech. The complainant stated that she was not told by the respondent to desist from posting comments at any stage previously. The complainant stated that her social media account could have been hacked for all the respondent knew and what that member of the public had seen and reported to the respondent may not have been a posting made by the complainant. The complainant outlined that she felt she was managed out because her Facebook page was an issue of contention for the respondent. The complainant stated that in her seven years working for the respondent, she had never been reprimanded and that her performance, conduct, and attendance was always excellent. The complainant was earning €2,180 gross per month at the time of her dismissal.

Ms Polonkai declined the invitation to cross-examine the complainant.

On Friday 6 January 2023 the respondent received a message to its Facebook page from a member of the public which read: “Hello just so you know memebers [sic] of your staff have very extreme views when it comes to refugees coming into Ireland”. It included a screenshot of a comment made on a Facebook site called “Irish Supporters of Ukraine” which read: “Ireland is on its knees, Irish working people can’t afford heating or food yet refugees think it’s a free for all, stay fight for your country our grand parents fought against the English do the same”.

The respondent submitted that this member of the public was not a patient of the respondent and so this person must have been triggered to check the complainant’s private Facebook page which subsequently must have led this person to the complainant’s employment information and consequently the respondent’s business page. The respondent argued that the line between private and professional had been crossed and that it did not want to risk any negative associations with the respondent business. The respondent is also a multicultural employer and has zero tolerance towards any written or spoken hate speech, racial remarks or anything that could cause any incitement towards minority groups in Ireland. A member of the management team immediately sent a text message to the complainant requesting that she remove the posting. A reply was received from the complainant’s phone. This reply was written by the complainant’s partner Mr X and the message inter alia advised the respondent not to text the complainant’s phone again.

On Monday 9 January 2023 the two business owners called a meeting which was also attended by the Patient Experience Manager and the Business & HR Manager. A decision was reached at this meeting to dismiss the complainant on the grounds of “serious and gross misconduct”. The respondent regarded the complainant’s posting on the Irish Supporters of Ukraine Facebook page as falling within the definition of hate speech under s 2(1) of the Prohibition of Incitement to Hatred Act 1989, as “… the written material, words, behaviour, visual images or sounds, as the case may be, are threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred”. Based on the gravity of the offence; the instant denial contained within the response text message from the complainant’s partner; the lack of remorse and the lack of co-operation from the complainant, the respondent determined that it had no other option but to dismiss the complainant immediately.

The respondent’s Disciplinary Procedure provides: “[T[here are certain actions, which might impair the operations of the practice or jeopardise patient or employee safety or our reputation. Such violations could subject a staff member to dismissal, with or without notice”. The complainant was dismissed in accordance with this provision of the company procedure. The respondent outlined that the views of the complainant could not be categorised as ‘political views’ and could not be regarded as a ground for unfair dismissal under the Unfair Dismissals Act 1977. The respondent requested that ‘exhibits E, F, G & H’ were admitted in evidence and considered by the Adjudication Officer and that they would be given weight. The respondent referred to s 8 of the Minimum Notice Act 1973 and the right of the employer to terminate a contract of employment without notice because of the misconduct of an employee.

Ms Polonkai stated that there was nothing to be investigated in relation to the complainant’s posting on the Irish Supporters of Ukraine Facebook “as it was there for everyone to see”. Ms Polonkai also submitted that adherence to the procedures outlined in the respondent’s Disciplinary Procedure were also not necessary as the conduct fell under the Gross Misconduct clause of the Disciplinary Procedure entitling the respondent to dismiss immediately and without notice. 

In response to the complainant’s claim that her Facebook account could have been hacked, Ms Polonkai stated that she was aware that the complainant held strongly negative views on immigrants which she posted on her private Facebook page, but that she had decided not to reprimand the complainant for these views given the very fine line when it comes to an employee’s private social media page. In any event this did not form part of the decision to dismiss the complainant and it was not made known to the owners of the business at any time including the meeting of 9 January 2023.

In cross-examination the complainant challenged Ms Polonkai on her definition of hate speech and put it to Ms Polonkai that it was just her opinion that the posting on the Facebook page constituted hate speech. This was denied by Ms Polonkai who stated that the posting fell within the definition under s 2(1) of the Prohibition of Incitement to Hatred Act 1989. The complainant also put it to Ms Polonkai that she had been monitoring the complainant’s Facebook page since December 2022 and that a decision had been made to manage her out. This was denied by Ms Polonkai who stated that she was aware of the previous postings because she herself was connected to the complainant’s Facebook page but that she was not actively monitoring the complainant’s postings. In response to the questions of whether the complainant has the right to freedom of speech, Ms Polonkai answered in the affirmative but added that this had to be balanced against the common good. In reply to the question “why do you want to blacken my name as a racist?”, Ms Polonkai stated that she had never referred to the complainant as a racist. Ms Polonkai was asked why she did not give the complainant an opportunity to defend herself or to be given a statement of wrongdoing to which Ms Polonkai replied that the complainant’s conduct warranted immediate dismissal. Ms Polonkai also refuted that other factors came into the respondent’s decision to dismiss the complainant.

Law

CA-00054596-001 - Dismissal

The Unfair Dismissal Acts 1977-2015 (“the Acts”) defines “dismissal” in relation to an employee as including the termination by the employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.

Section 6(1) of the Acts provides:

“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”.

Section 6(4) of the Acts provides:

“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: (b) the conduct of the employee . . . .”

Section 6(6) of the Acts provides:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

In Glover v. B.L.N. Ltd. [1973] I.R. 388 it was held that “[i]t is impossible to define the misconduct which justifies immediate dismissal... There is no fixed rule of law defining the degree of misconduct which justify dismissal... What is or is not misconduct must be decided in each case without the assistance of a definition or a general rule. Similarly, all that one can say about serious misconduct is that it is misconduct which the court regards as being grave and deliberate. And the standards to be applied in deciding the matter are those of men and not of angels” (per Kenny J at page 405). In Frizelle v New Ross Credit Union [1997] IEHC 137, Flood J stated that in cases of misconduct “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”. In Governor and Company of Bank of Ireland v James Reilly [2015] IEHC 241, Noonan J held that if a company has a zero-tolerance approach to certain conduct “its employees were entitled to some notice of this policy shift” (at [55]).

Although no cases where brought to my attention by the respondent in this case, as part of my statutory duty to inquire I reviewed a number of Irish and UK cases which have considered the dismissal of an employee for posting on social media platforms contentious or offensive material relating to their employer, colleagues or customers, and also postings unrelated to the employee’s employment (for example: Emma Kiernan v A Wear Limited, UD643/2007; O'Mahony v PJF Insurance, [2012] 23 E.L.R. 86; Crisp v Apple Retail (UK) Ltd, ET/1500 258/11); Preece v JD Wetherspoons Plc, ET/2104806/10; Teggart v TeleTech UK Ltd, NIIT/704/11; Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch); Trasler v B&Q Ltd; ET/1200504/2012; Game Retail Ltd v Laws UKEAT/0188/14; and Weeks v Everything Everywhere Ltd ET/2503016/2012).  I note examples of Irish cases and particularly UK cases, which establish an employer’s right to take disciplinary action even where the post is on a private social media account. In the UK case of Game Retail Ltd the Tribunal pointed out that cases are fact-sensitive, and that the usual “range of reasonable responses” test applies. I also note from the case law the importance of implementing a social media policy and impressing upon employees the importance of adhering to its terms. In O'Leary v Eagle Star [2003] E.L.R. 223 it was held that “[i]f an employee is to be dismissed for breaking the rules he should know or have an opportunity to know what they are. In a plethora of documents dealing with abuse of IT systems there was not a single document clearly outlining the consequences of departing from approved procedures.” As far as I am aware the extent to which an employee's postings in their own time or on so-called ‘private’ sites are protected by privacy rights and freedom of expression has yet to be considered by an Article 34 Court. 

Section 6(7) of the Acts provides:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so— (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) of section 7 (2) of this Act” (emphasis added).

In Hennessy v Read & Write Shop Ltd (UD 192/1978) the Employment Appeals Tribunal (EAT) described ‘the test of reasonableness’ and applied it to: (i) the nature and extent of the enquiry carried out by the employer prior to the decision to dismiss the complainant and (ii) the employer’s conclusion following such enquiry that the complainant should be dismissed. In Noritake (Ireland) Ltd v Kenna (UD88/1983) the EAT posed three questions: (i) did the company believe that the employee mis-conducted himself as alleged? If so, (ii) did the company have reasonable grounds to sustain that belief? If so (iii) was the penalty of dismissal proportionate to the alleged misconduct?

In Pacelli v Irish Distillers Ltd (UD571/2001) the EAT held that “[i]t is a prerequisite to any dismissal to conduct an investigation and such an investigation should have regard to all the facts, issues and circumstances surrounding a case warranting serious chastisement or reprimand, such as dismissal.”

In White v Cadbury (Ireland) Ltd (UD 44/79) a decision was taken to dismiss without an investigation. The EAT held: “[t]he denial to the appellant of the opportunity to make or present his counter arguments prior to . . . [the] decision to dismiss him was, in our opinion, a breach of his fundamental right to be confronted with the evidence against him and to make counter-arguments, explanations, pleas etc as may be relevant. We are accordingly of the opinion that the denial of this fundamental right to the appellant had the inevitable result of rendering this dismissal an unfair dismissal . . . .”

 In Dunne v Harrington (UD166/1979) the EAT stipulated that an employer may investigate either: “(a) personally in a fair and reasonable manner ie as fully as is reasonably possible, confronting the ‘suspected’ employee with ‘evidence’, checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings/confrontations if the employee requests it or a union/management agreement requires it and to produce ‘counter evidence’; or (b) he may rely on the reports of others”. However if the employer does the latter “. . . without confronting the accused employee with the contents of the same, without hearing, investigating and giving value to his replies, giving him reasonable opportunity to produce rebutting ‘evidence’, and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice viz that the other party (ie the employee in these circumstances) should be heard. In short, an employer acting on the reports of third parties and not acquainting the employee with same does so at his peril if it results in the dismissal of that employee.” 

In Gearon v Dunnes Stores Ltd (UD 367/88) the EAT held: “[t]he right to defend herself and have her arguments and submissions listened to and evaluated by the respondent in relation to the threat to her employment is a right of the claimant and is not the gift of the respondent or this Tribunal . . . the right is a fundamental one under natural and constitutional justice, it is not open to this Tribunal to forgive its breach”.

In The State (Gleeson) v. Minister for Defence and Attorney General [1976] I.R. 280, it was held that “it would be an affront to justice if the law held that a decision with such drastic consequences for the man involved . . . could be made behind his back”.

Section 7(1) of the Acts provides:

“Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances . . . . ”

Section 7(2) provides:

Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, 

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

Section 7(3) provides “within this section— “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”.

Findings

CA-00054596-001

The fact of dismissal is not in dispute and accordingly the burden of proof rests on the respondent in this case to show that there were substantial grounds justifying the complainant’s dismissal. It is not for me to determine the guilt or innocence of the complainant or substitute my own judgment for that of the respondent. Rather, I must apply the standard of ‘reasonable employer’. This requires a determination of the range of responses which a reasonable and prudent employer could have taken having regard to the nature of the case and then a consideration as to whether the respondent’s actions and decisions lay within that range (Governor and Company of Bank of Ireland v James Reilly [2015] IEHC 241; Pacelli v Irish Distillers Ltd UD571/2001; Bunyan v United Dominions Trust (Ireland) Ltd UD 66/1980; McGee v Peamount Hospital UD 136/1984; Looney & Co Ltd v Looney UD 843/1984).

In general a dismissal is deemed not to be unfair if it results wholly or mainly from the conduct of an employee. However, as noted by the EAT in Durnin v Building & Engineering Co Ltd (UD 159/1978) this is “. . . at best only a prima facie ‘justification’ and the substance of such ‘justification’ may be enquired into by the Tribunal which attaches the question of fairness to same”. In general therefore, the respondent must show that not only did it have substantial grounds to dismiss the complainant but also that it followed fair and proper procedures before dismissing the complainant.  Where a decision may adversely affect a person’s good name or livelihood a range of procedural protections are engaged.

In accordance with s 6(7) of the Acts, I may have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and the extent (if any) of the compliance or failure to comply by the respondent in relation to the dismissal of the complainant with the Company Disciplinary Procedure or with the provisions of Statutory Instrument No. 146 of 2000 of the Industrial Relations Act, 1990 (Code of Practice on Disciplinary Procedures). The right to fair procedures is not absolute, and the requirements of fair procedures will vary according to the circumstances of the case. There are circumstances, albeit rare, which are so exceptional that the procedural process normally followed could be disposed with. As noted by the EAT in Bunyan“[i]t may be argued that in relation to its functions under the Unfair Dismissals Act 1977, the Tribunal should consider that a substantive matter should override a procedural breach of natural justice. This view has been applied by the Tribunal in cases where it is satisfied that failure to comply with the rules of natural justice made no difference to the decision to dismiss. In such cases the Tribunal was satisfied that no injustice was caused by such failure”.

The respondent requested that ‘exhibits E, F, G & H’ were admitted as supporting evidence in this case. I note that ‘exhibits E, F and G’ relate to other social media posts allegedly made by the complainant prior to her dismissal; however, it was the respondent’s sworn evidence that these ‘exhibits’ did not feature in the decision to dismiss the complainant and that the owners of the business, who made the decision to dismiss, where not told about ‘exhibits E, F and G’ because Ms Polonkai “did not wish to cloud the business owners’ judgement on the 9 January 2023”. Therefore, I have disregarded these ‘exhibits’ in reaching my findings in this case. Further, ‘exhibit H’ is a social media posting allegedly made by the complainant after her dismissal. I find that ‘exhibit G’ is of no relevance and is therefore not admissible in evidence. Accordingly, I have also disregarded ‘exhibit G’.

It is the respondent’s case that the complainant was dismissed following one act of misconduct, namely, the uploading of a post on the Irish Supporters of Ukraine Facebook page. The respondent contended that this conduct constituted serious and gross misconduct and that it was entitled to dismiss the complainant in accordance with the following provision in the respondent’s Disciplinary Procedure: “[t]here are certain actions, which might impair the operations of the practice or jeopardise patient or employee safety or our reputation. Such violations could subject a staff member to dismissal, with or without notice”. It is common case that the respondent did not conduct any form of an investigation or verify how the post came to the attention of the respondent, because as far as the respondent was concerned the posting was there for everyone to see. It is common case that the respondent did not follow any procedural process before deciding to dismiss the complainant. It is the complainant’s case that she was not given any prior notice of the complaint and that she was denied an opportunity to defend herself before a decision was made to dismiss her. The respondent submitted that the latter was not necessary as the conduct of the complainant constituted gross misconduct.

In assessing the reasonableness of the employer's conduct in relation to the dismissal in this case, I have had regard to the surrounding circumstances, including the impact of the conduct on the respondent as against the impact of the dismissal on the complainant to determine the proportionality of the respondent's response, and I find that the dismissal of the complainant was substantively unfair for the following reasons.

The respondent stated that it reached a decision to dismiss because of the gravity of the complainant’s conduct which in the respondent’s view constituted an offence under s 2(1) of the Prohibition of Incitement to Hatred Act 1989; the instant denial contained within the response text message from the complainant’s partner; the lack of remorse from the complainant; and the lack of co-operation from the complainant. The respondent determined that it had no other option but to dismiss the complainant immediately. Following a review of relevant case law in this area, I note that an employer has the right to dismiss where this is necessary to protect its business interests and reputation; that postings made by an employee on social media platforms outside of working hours may warrant disciplinary action up to and including dismissal; and that while every person has the right to freedom of expression, this right is not absolute. However, I find on the facts of this case that the conduct of the complainant did not warrant dismissal as a course of first instance and that the sanction of dismissal was disproportionate. I am satisfied therefore that the reaction of the respondent and the sanction of dismissal imposed in this case did not lie within the range of reasonable responses of a reasonable employer for the following reasons.

It is common case that up to January 2023 the respondent had no disciplinary issues with the complainant. The complainant was then summarily dismissed on 9 January 2023 for posting one comment online outside of working time. The respondent was alerted to this posting by one member of the public who the respondent assumed traced the connection between the posting, the complainant’s Facebook account and the complainant’s place of employment.  I heard no evidence regarding the complainant’s Facebook profile and whether or how it was directly or indirectly connected to the respondent’s business. The respondent does not have a dedicated social media policy which prohibits its employees from making comments or acting in any way which might damage the respondent’s business interests or reputation. At no time was the complainant advised to be mindful of the making of comments outside of work which could affect the company’s image or cause offense on any ground including nationality.  The complainant was not given an opportunity to desist in the conduct which the respondent was concerned would bring its business into disrepute. I accept the respondent’s submission that there is a balance to be achieved by the respondent between professional and private employee matters; however, it was Ms Polonkai’s sworn evidence that she was aware of the complainant’s social media postings regarding immigrants, yet as the Business & HR Manager of a multi-cultural workforce, she never thought to draft a social media policy which may have gone someway to achieving that balance and protecting the respondent’s interests. I find that the complainant’s comments merited the respondent’s attention and perhaps a warning to desist or exercise caution in posting such comments on the grounds that they may impact on the respondent’s business interests and/or could cause offence; but they did not constitute gross misconduct in the circumstances of this case. In An Employee v An Employer (ADJ 0000381), it was noted that “[t]he decision to dismiss is the ultimate sanction an employer can take against an employee. Dismissal has substantial ramifications for an employee and a decision to dismiss should only be taken as a last resort, where no other sanction is possible or suitable”. The decision to dismiss followed a meeting of senior management during which no other options were considered. I heard no evidence in relation to the efforts made to assess a range of penalties or to consider any alternative other than dismissal. I heard no evidence that the respondent suffered any loss, damage, or detriment because of the conduct complained of. Against all this, the effect of the dismissal on the complainant must also be considered. In that regard, I accept the complainant’s submission that her abrupt dismissal left her in a precarious financial situation. I am satisfied that the respondent has failed to discharge the onus of establishing that there were substantial grounds justifying the dismissal in this case.

I also find that the respondent did not act fairly, properly, or justly in reaching its decision on 9 January 2023 to dismiss the complainant. I note from the case law that in rare cases a substantive matter (even where not expressly prohibited under company policy) could override the full requirements of natural or constitutional justice, and I note that in some cases an investigation may not be necessary. However, I find that the facts of this case do not fall within these categories. As noted by Redmond, “[t]he concept of fairness is located within a framework which accepts that the employer has the right to dismiss where this is necessary to protect its business interests. To that extent it adopts an employer perspective. At the same time, the law requires that employers should not remorselessly pursue their own interests. The employee’s interests must be considered as well. The function of fairness is to reconcile these interests.” (Redmond on Dismissal Law, 3rd ed., Bloomsbury Professional 2017 at [13.01]).

I find on the facts of this case that the respondent laboured under the erroneous understanding that an employee has no right whatever to constitutional justice in cases where it finds that the employee has engaged in gross misconduct. It is common case that the respondent did not investigate the alleged misconduct as in the view of the respondent no investigation was necessary as the “comment was there for all to see”. It is also common case the complainant was not given any prior notice that the company was considering her dismissal for serious and gross misconduct: namely, that she had engaged in behaviour which in the respondent’s view was contrary to section 2 of the Prohibition of Incitement to Hatred Act 1989. The complainant was given no opportunity to refute that serious charge or to understand and reply to the charge that her posting had damaged or had the potential to damage the respondent’s business interests and/or to cause offence. At a very minimum the complainant was entitled to have the complaint put to her and be given an opportunity to respond at a properly convened disciplinary hearing, and to have the matter fairly and impartially determined before her dismissal was considered. The respondent submitted that the decision to dismiss was also based on “the instant denial contained within the response text message from the complainant’s partner”; “the lack of remorse from the complainant”; and “the lack of co-operation from the complainant”. Reaching a decision to dismiss the complainant (in part) for a text message she did not write or have any opportunity to explain, and for her lack of remorse and lack of co-operation was unjust given that the complainant was afforded no opportunity to co-operate in the disciplinary process. Constitutional justice was completely dispensed with in this case.  I find that this denial of constitutional justice was fundamental which also renders this dismissal unfair.

Section 7(1) of the Acts provides that where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress as set out under that section. I find that compensation is the most appropriate remedy in this case. I asked both parties to address the hearing in relation to the complainant’s loss and efforts to mitigate her loss. Neither party availed of that invitation. Section 7(1)(c) provides that if the employee incurred any financial loss attributable to the dismissal an award of compensation can be made as is just and equitable having regard to all the circumstances. There was a period of 21 weeks between the complainant’s dismissal and the hearing of the unfair dismissal complaint and during which the complainant had not secured employment. Section 7(2) provides that without prejudice to the generality of s 7(1) of the Acts, in determining the amount of compensation payable under that subsection regard shall be had to inter alia the extent to which the financial loss was attributable to an act, omission or conduct by or on behalf of the employer. I find that the complainant’s dismissal was substantively and procedurally unfair, and that the respondent shall pay to the complainant compensation of €8,552.31 (the equivalent of 17 week’s pay) which is just and equitable having regard to all the circumstances.

CA-00054596-003 (Minimum Notice)

Law

Section 4(2)(c) of the Minimum Notice and Terms of Employment Act 1973 (“the 1973 Act”) provides for a minimum period of notice of four weeks if the employee has been in the continuous service of his employer for five years or more, but less than ten years. Section 8 of the 1973 Act provides for the right to terminate contract of employment without notice as follows:

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

In Lennon v Bredin (M160/1978) the EAT stated “[w]e have always held that this exemption applies only to cases of very bad behaviour of such a  kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer . . . .”

Section 12(1) of the 1973 Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.”

Findings

Having considered the determination of the EAT in Lennon, I find that the respondent contravened s 4(2)(c) of the Minimum Notice and Terms of Employment Act 1973 and I direct the respondent to pay to the employee compensation for €2,012.31 (the equivalent of four week’s pay).

CA-00054596-001

I decide that the complainant was unfairly dismissed, and that the respondent shall pay to the complainant compensation of €8,552.31 which is just and equitable having regard to all the circumstances.

CA-00054596-003

I decide that the respondent contravened s 4(2)(c) of the Minimum Notice and Terms of Employment Act 1973 and I direct the respondent to pay to the employee compensation for €2,012.31.

Gross misconduct. Summary dismissal. Social Media. Minimum Notice.