What bosses can learn from a worker's unfair dismissal over his Facebook posts

A RECENT DECISION by the Employment Appeals Tribunal found that the dismissal of an employee for putting ‘derogatory’ comments on Facebook about a colleague was unfair.

Here I look at the facts of the case – and suggest some practical tips for employers to consider in similar instances.

In this case, the employee, a Mr Daly, had a telephone disagreement with the store manager. The tribunal heard conflicting evidence in relation to the content and tone of the conversation.

However the manager denied allegations that she had been “verbally abusive” to Daly, or that she had hung up on him 14 times following the incident when he tried to ring her back.

Initially following the incident, Daly sent an email to his superior complaining about the manager and requesting an apology for the “child-like behaviour from what was supposed to be a manager”.

Shortly thereafter, he put a ‘derogatory’ post on Facebook about her. Daly was later called into the office and told what he had done could constitute “bullying behaviour”.

While he offered his resignation, he was instead told to take time to “cool off”. Later that day, Daly sent an apologetic email to the manager – but she didn’t reply.

This incident was followed by an investigation and a disciplinary process. While Daly claimed that the manager had spoken to him in a condescending manner and he was not given an opportunity to address her concerns, he accepted his actions were “rude and demeaning”.

It was also accepted by the employer that Daly “put his hands up” and provided the employer with a fulsome apology, admitting his actions were “inappropriate and immature”.

In coming to the decision to dismiss Daly, although it was accepted that he had a good employment record, the employer acknowledged it “did not consider any other sanction as what (he) had done was to put content on Facebook that was a public forum and (the employer) considered it was gross misconduct”.

Ultimately, the tribunal determined that there were flaws in the employer’s policies and procedures that rendered Daly’s dismissal unfair.

In particular, it appears that the finding of “gross misconduct” was conclusive. The employer’s failure to consider other, more appropriate sanctions at any stage throughout the disciplinary procedure was a flaw that weighed heavily against the employer in the tribunal’s decision.

However, it also determined that Daly had significantly contributed to his own dismissal as his actions were offensive and inappropriate. The tribunal awarded him €5,000.

Conclusion

What is clear from the above case is, although Irish law allows employers to take an employee’s use of social media into account when disciplining an employee, this right is secondary to the employee’s right to fair procedures. The employer must always ensure the punishment fits the crime.

Tips for employers

• It is absolutely vital that employers set some ground rules in relation to the use of social media with an ‘acceptable use’ policy and procedure in place
• Ensure there is a policy and procedure in place for dealing with bullying, harassment and sexual harassment to include when such issues arise in a virtual sense
• When an employer is considering disciplining an employee for social media use, ensure there is a sufficient link between their activity and their employment

The content of this article is provided for information purposes only and does not constitute legal or other advice.

Orla O’Leary is a senior associate in the employment law team at Mason Hayes & Curran.

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