A recent decision of the Workplace Relations Commission highlights the importance of employers having a social media policy and giving an employee an opportunity to defend his or her actions.
In this case the employee had posted on her personal Facebook page a post which apparently was critical of Ukrainian refugees in circumstances where Irish working people were struggling to afford heating or food etc.
The post was brought to the attention of the employer by a member of the public and the employee was summarily dismissed without notice on the 9th of January 2023.
The employer did not have a social media policy. The employer deemed the employee’s posting on the Irish Supporters of Ukraine ‘hate speech’ under Section 2(1) of the Prohibition of Incitement to Hatred Act, 1989 the employee brought a case to the WRC claiming that she had been unfairly dismissed.
Section 6(1) of the Unfair Dismissals Act 1997-2015 provides that ‘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’.
The onus is on the employer, where the dismissal was justified by the behaviour of the employee.
In one of the earliest cases relating to unfair dismissal Glover v BLN Limited it was held ‘There is no fixed rule of law defining the degree of misconduct which justify dismissal’. What this case essentially decided was that misconduct must be decided in each case without the assistance of a definition or a general rule.
The adjudication officer hearing the case noted the examples of the Irish cases and particularly UK cases which established an employer’s right to take disciplinary action even when the post is on a private social media account.
However, in the case of O’Leary v Eagle Star the importance of having and implementing a social media policy was emphasised.
Having had no opportunity to defend her actions before being terminated the adjudication officer decided that the employee in this case was unfairly dismissed and awarded her a sum of €8,552.31 in compensation.
This case highlights the importance to employers of having a social media policy and clearly stating what an employee can and cannot do even on their own social media accounts.
For any employment advice please don’t hesitate to contact Brendan Dillon on 01 296 0666.
