Cases resulting in big awards of compensation or involving high-profile parties are usually the ones that attract most media attention. However, decisions that otherwise go 'under the radar' often involve interesting analysis of the problems that most often confront HR and employment law professionals. The recently published determination of the Labour Court in the case of Esker Property Holdings Limited v Tyrrell, ADJ-00029944, is one such decision. Here our Adrian Twomey highlights the key elements to which both employers and employees should pay attention.
The employer, Esker Property Holdings Limited, owned and operated a nursing home. The Complainant, Ms Sharon Tyrrell, worked as a care assistant at the home from 3 July 2017 until her dismissal for alleged "gross misconduct" on 9 November 2018.
Ms Tyrrell had made a complaint of bullying against her manager in September 2018. That complaint was the subject of an investigation, conducted by Peninsula, that apparently took eight months to complete. By that time, Ms Tyrell had already been dismissed. During the investigation, another employee gave a statement to the employer's Director of Operations. This second employee reported that she was a "friend" of Ms Tyrrell's on Snapchat and that she had seen a video posted by the Complainant of an event captured during working hours. It was apparently inappropriately captioned. The video included footage of residents at the nursing home.
The employee was promptly suspended pending an investigation before later being called to a disciplinary hearing and then dismissed on grounds of alleged "gross misconduct".
The employee took a case for unfair dismissal against her employer to the Workplace Relations Commission (WRC). Her case was heard in October 2019 and led to a decision dated 18 March 2020 to the effect that she had been unfairly dismissed. The WRC Adjudication Officer awarded her the equivalent of six months pay which, in this instance, amounted to a modest €7,800. Both parties appealed the decision to the Labour Court. The Court heard the appeal between January and April 2022 and a final decision issued last month (May 2022).
In deciding on the case, the Labour Court appears to have been influenced by a number of factors, including the following:
the Financial Controller, who made the decision to dismiss, said in evidence that she was leaning towards a finding of gross misconduct before she ever went into the disciplinary hearing and that she was not sure if the employee could have said or done anything at the hearing to change her mind;
both the financial controller and the person hearing the subsequent internal appeal simply did as advised by their external HR advisors, Peninsula, and failed to engage with the issues themselves;
witnesses gave evidence that the HR advisors had drawn up all correspondence and company management had simply signed what was presented to them; and
the decision maker and the person deciding the appeal incorrectly believed that the incident could only be classed as "gross misconduct" and that the only available sanction was dismissal.
The Court noted that:
"... these facts ... indicate a lack of independence in the process in a situation where the external HR advisors are determining how the allegation is framed, what questions should be asked at the disciplinary hearing and deciding the basis on which both the decision maker and the person hearing the appeal came to the conclusions that they came to."
The Court then highlighted that it was required to consider the reasonableness of the employer's conduct and the need to consider whether or not dismissal was within the range of reasonable responses of a reasonable employer in the circumstances. In this case, the Court concluded that the employer had not acted reasonably and that the decision to dismiss was disproportionate. The Court therefore concluded that the dismissal was unfair and upheld the earlier decision of the WRC.
It is worth considering the following points arising from the Labour Court and WRC decisions:
The employee filed her claim with the WRC five days after the six-month deadline for doing so had passed. The employer must, at that stage, have assumed that it would not have to defend any claim. However, both the WRC and the Labour Court seem to have taken the view that the employee did not "grossly misconduct" herself and was, therefore, entitled to notice of one week. They therefore effectively added one week to the period of her employment and calculated the six-month limitation period as running from then. The Complainant was, for that reason, permitted to proceed with her claim. We are not entirely convinced by the legal reasoning behind that decision but it is certainly worth noting.
It is always important to decide which of the metaphorical 'chicken' or or 'egg' came first. In this case, the employee made an allegation of bullying against her manager. The WRC and the Labour Court must inevitably have been concerned that within a matter of weeks the employer had 'discovered' the fact of the posting of the snapchat video and commenced a process that ended in the dismissal of the employee. It was also somewhat suspicious that the snapchat issue had been investigated and the employee had been dismissed months before the original bullying investigation was ever completed.
Unusually, the role of the employer's HR advisors, Peninsula, appears to have been the subject of particular scrutiny. Those advisors appear to have conducted the investigation into the bullying allegation, written all of the letters for the employer to sign, conducted the questioning of the Complainant at her disciplinary hearing, briefed the dismissal decision-maker and the individual who heard the internal appeal and represented the company at the Labour Court. As such, their fingerprints appeared at all stages in the process. Whilst employers who take legal advice from a solicitor can claim privilege in relation to that advice, it does not appear that the Respondent in this case was in a position to do so.
The snapchat video must surely have raised concerns in relation to data privacy issues and GDPR. The Labour Court's decision does not contain any detailed analysis on the point but does seem to assume that some form of disciplinary action, short of dismissal, could reasonably have been considered.
Employees should never post unapproved work-related content to social media. They might also be well advised to consider who are really "friends"!
The outcome highlights the importance of both employers and employees seeking and obtaining appropriate legal advice regarding claims before the WRC and the Labour Court. Those requiring such guidance or representation before the WRC or Labour Court can contact our Adrian Twomey.