For employers, the vast majority of situations where social media issues will come to their attention are where disciplinary matters arise because of its misuse by employees.
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.
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.
The most recent case from the EAT, Jane Loughran v Mullingar Electrical Wholesale Ltd (UD1098/2012), in April 2014 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.