Sanction of Dismissal was Disproportinate for Bebo Comments

Background to Complaint

In late March 2007 a customer contacted A Wear and drew their attention to comments posted on that Bebo site by the claimant. The full comments read as follows:

“heya no I was in bits this morning getting sick! !dunno y!!!! tried ringin work from 7.30 but couldn’t get through wit the phone bein broke and was rinin head office but no body was in. gotthrough 2 h.o. at about 9 and they transferd me down but no body answered so I rang Y and toldher 2 tell X (the manager in question), she rang me at 9.30 askin y iwasn’t in and I told her the whole story and she called me a lier and said the phone never rang on the floor all morning…headoffice even got back 2 meand said that no body was in and 2 ring back later!!! I f**in hate thatc**t. I’m gonna go in2 here 2 mro and show her all the times I rang in the morning. callin me a lier f**kin cheek!!”

Those comments were in turn brought to the attention of the Human Resources Manager of A Wear.
The Human Resources Manager noted that A Wear had an official presence on the Bebo website and that, although the claimant had her own Bebo site, this personal site was linked to the official site and thus content could be seen by the general public.

The Human Resource Manger met with and spoke to the claimant that day. During the course of that meeting, the claimant confirmed she wrote the comments in question. In treating the issue as a very serious matter the Human Resource Manager suspended the claimant pending a disciplinary hearing. Up to that time the respondent had no disciplinary issues with the claimant.
A disciplinary meeting took place attended by the Human Resources Manager, another employee, the claimant, and her representative. When asked for an explanation for her unwelcome comments posted on a particular site, the claimant claimed that she was having “a bad day” and was reacting to a false contention made by that particular Manager. Following a review of that meeting and in consultation with others the claimant’s behaviour was viewed as gross misconduct and accordingly dismissed her by way of a mobile call the next day. The claimantappealed this decision using the internal appeals process, however, this appeal failed.
The claimant argued that she regarded her message as a message to her friend but accepted that this message was accessible to the general public due to the nature of the Bebo website and its links. However, the claimant accepted that other comments she made – found later by the Company during its investigation of the matter – were more directly linked to the A Wear Bebo website.
Finally, while conceding that the claimant’s comments on the Bebo website did not directly name the Manager or A Wear, the Company observed that those comments were in the public domain and linked to the Company “in other ways”. However, the Company stated that no damage was done to the its reputation as a result of those comments.

Employment Appeals Tribunal Decision

The Tribunal unanimously found that A Wear Ltd. acted inappropriately in dismissing the claimant in this case.
While the Company’s disciplinary procedures were fair and proper, their sanction was not, it said.
The EAT concluded that the claimant’s comments deserved strong censure and possible disciplinary action but they did not constitute gross misconduct in the circumstances.
However, it said, the comments made by the claimant concerning her supervisor were indeed disrespectful, inappropriate and damaging the employment relationship and to that extent, the claimant’s contribution to her dismissal was not insignificant. Accordingly, the Tribunal awarded the claimant €4,000 under the Unfair Dismissals Acts, 1977-2001.
Case: Emma Kieran v A Wear Ltd, Employment Appeals Tribunal, 2008

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