Case Number: ADJ-00027755. Workplace Relations Commission

• Judgment Date: 11 May 2022
• Docket Number: ADJ-00027755
• Date: 11 May 2022
• Hearing Date: 08 March 2022
• Court: Workplace Relations Commission
• Respondent: Nua Healthcare Services

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

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 The complaint under the Employment Equality Act was withdrawn and the complaint under the Minimum Notice & Terms of Employment Act is the subject of decision under ADJ-0026364.

Summary of Complainant’s Case:

(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...