No policy so dismissal over pornographic emails unfair
One of the earliest cases on the point is Mehigan v Dyflin Publications Limited (2004) in which the Employment Appeals Tribunal (EAT) held that an employee was unfairly dismissed despite having used his employer's email to forward pornographic material to fellow employees. In this case, the Tribunal was heavily influenced by the company’s failure to have a policy highlighting the disciplinary risks of misuse of email and internet facilities. The Tribunal held that the employee had been unfairly dismissed due to the absence of such a policy. However, he had made an enormous contribution to his own dismissal and compensation was restricted to €2,000 plus €2,856.90 in respect of notice.
The Tribunal was keen to point out that there is a duty on employees to act responsibly in using technology. This duty is particularly serious for senior or established employees. The duty is more likely to be breached where there is repeated misuse as opposed to a one-off incident. A clear policy makes it difficult for employees to claim they were unaware of the seriousness of their activity.
While not mentioned by the Tribunal in Mehigan, other consequences of having no policy, aside from the risk of harassment, bullying, defamation and so on, can include the accidental creation of contractual relations or the failure to properly record important transactions and communications.
Dismissal disproportionate for disrespectful comments...
With regards to social media-related disputes in the workplace, one of the earliest cases to come before the Irish Tribunals was Kiernan v A Wear (UD643/2007). Here, the Employment Appeals Tribunal (EAT) had to decide whether the dismissal of an employee for posting disrespectful comments about her manager on the social networking site Bebo was proportionate. One aspect of the employee’s argument was that her posting was private, being a message to her friend. In response, the employer said that the site was linked to the employer’s website. When the employer became aware of the postings, it initiated disciplinary proceedings. A disciplinary meeting was held in accordance with the usual procedures and the employee was subsequently dismissed for gross misconduct.
The employee then initiated unfair dismissal proceedings. The EAT held that, while the company’s disciplinary procedures were fair, the sanction imposed was not. It said that the sanction of dismissal was disproportionate to the offence. The misconduct deserved strong censure but was not gross misconduct. The EAT directed that €4,000 be paid to the employee. This case clearly illustrates that, even if they have a fair and objective disciplinary procedure in place, employers must also ensure that the sanction applied is proportionate to the offence.
Similarly in the case of Walker v Bausch & Lamb (UD179/2008), the dismissal of an employee for posting a comment on the company's intranet site that 500 jobs were to go was held to be disproportionate, particularly as the employee did not seem to be aware of the company's internet policy.
...but not always
In contrast, in the decision of O’Mahony v PJF Insurance Limited (UD933/2010), the EAT found that the posting of derogatory comments by the employee about her employer amounted to a breach of trust justifying her dismissal.
Dismissal for use of social media at work
Another case from the EAT, Jane Loughran v Mullingar Electrical Wholesale Ltd UD1098/2012), saw an award of €7,000 being directed to a marketing assistant for her dismissal for use of social media during the working day. The EAT found that the dismissal was unfair as there was no social media policy in place and was also lacking in procedural fairness as no warnings were given.
The case of McCamley v Dublin Bus (ADE/15/37) addressed the issue of harassment online. In this case, the company's rule prohibiting conduct prejudicial to the reputation and welfare of fellow employees was held to be an effective provision to protect employees from harassment. While the company rule was not an adequate substitute for a well-defined policy against the use of social media as an instrument of harassment, it was nonetheless a comprehensive provision aimed at protecting employees. It was held that the employer could avail of the defence that preventative measures were taken before the occurrence of the offending conduct.
Flawed procedures over offensive post
One of the most recent cases on social media in the workplace is Daly v Donnybrook Fair (UD334/2015). In this case, the employee posted a derogatory statement about his manager following an argument over the phone. He subsequently apologised twice and offered his resignation, but was told to cool off. Following this, he was dismissed with the company considering no other option. In June 2016, the employee was awarded €5,000 from the EAT who determined that although the social media post was offensive and rude, there were inexcusable flaws in the internal disciplinary policies and procedures of the company.