FACTS: An employee of DTE Energy Co. posted the following post on Face Book: The Facebook
post read: Got to work this morning and we currently have 275,000 customers without power!
White people in Oakland county are b****** right now ... they got f***** up lol...And don't call
me acting a g****** fool...I will hang up on yo a**! ***THIS HAS BEEN YOUR DTE
REPRESENTATIVE PUBLIC SERVICE ANNOUNCEMENT***. DTE says the company has
a zero-tolerance policy for the kind of behavior she showed in her post, so they called the employee
(Rachel Burnett) into a meeting and confirmed it was her posting. DTE then immediately
terminated her employment. Rachel Burnett now says she was "joking" and letting off steam in
the post, after hundreds of thousands of people lost power after the weekend's storm and were
calling to complain. Please advise Rachel Burnett.
ISSUE: Was the dismissal of Rachel by DTE contrary to good industrial relations practices as she
was not given a proper opportunity to be heard?
Was the dismissal of Rachel by DTE harsh and oppressive having regard to the offence allegedly
committed?
RULE/LAW: Article 4 -The employment of a worker shall not be terminated unless there is a
valid reason for such termination connected with the capacity or conduct of the worker or based
on the operational requirements of the undertaking, establishment or service. Termination of
Employment Convention, 1982 (No. 158). Dismissal as define by the International Labour
Organisation is the ‘termination of employment by the initiative of the employer’. Further
defined, it is the termination of employment by an employer against the will of the employee.
There are various types of dismissal that exist including Summary Dismissal, Non-Summary
Dismissal and Constructive Dismissal.
Unfair Dismissal
This occurs when employers act contrary to good industrial relations practices and become harsh
and oppressive. This statutory claim is available to all employees who believe that their dismissal
was unfair and/or unreasonable, harsh, or resulted from improper disciplinary procedures. Unfair
termination is likely to be found if the proceedings of a summary or non-summary dismissal was
found to under any of the aforementioned.
Summary Dismissal
This form of dismissal is instant and occurs due to gross misconduct on the part of an
employee. Immediate termination without notice and without a payment in lieu of notice is
therefore justified on the part of the employer. Summary dismissal does not follow the
principle of good industrial relation practices whereby the accused is not afforded natural
justice before being dismissed from their employment. Natural justice dictates that discipline
should be progressive and that an accused has the several rights which includes the right to
adequate notice about the proceedings as well as the right to adequate time to prepare and to
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full information to prepare a response. It also includes the right to legal representation, to be
heard, to ask questions and contradict the evidence of the opposing party. Finally, the right to
reasons for a decision and to be heard by an unbiased tribunal. Summary dismissal may bypass
these rights and dismiss an employee where necessary especially in incidents where the
employee commits serious infractions. In the case of All Trinidad Sugar and General
Workers' Trade Union v Trinidad Textile Manufacturing Company Limited, the union
represents Ms. Cynthia Winters, a machine operator who was employed under the defendant
(Trinidad Textile Manufacturing Company Limited). The union claimed that the dismissal of
Ms. Winters was the culmination of harassment by the defendant. However, the defendant
argues that Ms. Winters was issued two warning letters in which the last explained that she
would need to considerably change her performance output and attitude by the end of the
month, or the company would be forced to terminate her employment. Soon after being issued
the letters of reprimand Ms. Winters verbally assaulted her supervisor, Mrs. Belle, and
threatened to do her physical harm in which point her employment was terminated
immediately for gross misconduct. Upon reviewing the evidence brought forward, the court
saw no purposeful acts performed by the company to frustrate Ms. Winters into committing
her acts. The court therefore favoured the defendant and saw no reasons to fault their dismissal.
The dispute was thereby dismissed.
Non-summary Dismissal
This form of dismissal, unlike that of summary dismissal, occurs when an employee is given notice
of his dismissal. This form of disciplinary action is progressive and is usually performed as a last
alternative/ resort strategy from an employer to correct an employee’s behaviour or proficiency.
However, before this action can be taken, the employer must ensure that he is unbiasedly fair and
have followed proper procedural actions and have considered all other alternative disciplinary
action. Good Industrial Relations Principles and Practices. The use of good industrial practice
and the compliance of employers with fair and reasonable dismissal procedures is critical to a
determination of fair dismissal, according to tribunals. Good industrial practices include sufficient
investigation, consultation, opportunity for representation, credible evidence and impartiality and
fairness.
This can be seen in the case of Elisa Morris V. Ambassador Hotel, as the claimant, Ms. Morris
was terminated for getting a phone call on work and questioned her boss’ motives behind picking
up the call and loudly speaking to the caller in which her boss (Mrs. Evelyn Geriod) proceeded to
tell the caller to not call again. After Ms. Morris questioned her boss’ actions she proceeded to
explain to Mrs. Geriod that her mother was very ill and that the call may have been from her
mother’s doctor or pharmacist, in which case Mrs. Geriod should not have done what she did.
Subsequent to explaining the circumstance of her situation Ms. Morris was ordered to go home
immediately and to wait for a call instructing her as to when she could return, however, Ms. Morris
was never called again. Ms. Morris’ boss justified the dismissal as they claimed Ms. Morris’
behaviour and attitude to be rude and that she should have not questioned her. However due to a
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witness’ testimony and further evidence findings the court saw that there was no basis for the
sanctions imposed on Ms. Morris and furthermore, that her dismissal was harsh and oppressive
and not in accordance with good industrial relation practices. Hence the court ruled in Ms. Morris’
favour and awarded her $5,000 in damages.
Proper Procedural Action when dealing with dismissal in accordance with Good Industrial
Relations Practices and Natural Justice:
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Full particulars of charges
Full disclosure of documents / evidence
Adequate time to prepare
Right to contest adverse information
Right to legal representation
Fair and impartial tribunal
Reasons for decision
Wrongful Dismissal
Wrongful dismissal occurs when there is a breach in the employment contract from an employer.
Constructive Dismissal
Constructive dismissal results from unbearable working conditions, and a harsh/hostile working
environment. This form of dismissal is usually due to an employee being falsely accused of
misconduct, having unreasonable changes to an employee’s work (scope or shift times),
discrimination, being harassed, not being paid on time or at all etc. This can cause an employee to
become too overwhelmed by misery or discontent within their jobs to continue employment and
thus resigns in response to these factors. However, sometimes workers resign due to being pushed
and advised by employers to do so, either by the employer’s conduct or by explicit request.
According to Lord Denning, M.R. in Western Excavating Ltd v. Sharp [1978] 1 Q.B. 761;
“If the employer is guilty of conduct which is a significant breach going to the root of the contract
of employment, or which shows that the employer no longer intends to be bound by one or more
of the essential terms of the contract, then the employee is entitled to treat himself as discharged
from any further performance. If he does so, then he terminates the contract by reason of the
employer's conduct. He is constructively dismissed. The employee is entitled in those
circumstances to leave at the instant without giving any notice at all or, alternatively, he may give
notice and say he is leaving at the end of the notice. But the conduct must in either case be
sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after
the conduct of which he complains: for, if he continues for any length of time without leaving, he
will lose his right to treat himself as discharged. He will be regarded as having elected to affirm
the contract.”
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In the case of Banking, Insurance and General Workers Union v PriceSmart Trinidad Limited,
the union argues that Michelle Shivonne Cheng Wing, a Human Resource Manager for PriceSmart
(the defendant) was constructively dismissed by the company’s Vice President of Operations, Mr.
Bill Gough. Ms. Wing stated that she was asked to immediately resign and if she had failed to do
so that she would be dismissed. When Ms. Wing questioned the reason for her requested dismissal
she was denied an answer but was informed that upon completing her resignation she would (in
addition to her outstanding salary and allowances) she would be paid six weeks as a ‘severance’
totalling to $18,908.87. The court investigated the matter and saw that evidence showed that the
defendant did not enter into negotiations into a suitable financial settlement for a resignation and
nor was the decision of Ms. Wing’s resignation that of a mutatis mutandis agreement. Evaluations
of the evidence further showed that Ms. Wing was forced to choose the better of the evils (resign
or be dismissed) and hence choose the obvious choice under duress. Hence, the court found that
Ms. Wing was indeed dismissed contrary to good industrial relations practices and awarded an
additional $120,000.00 in damages to what she had already been paid by the defendant. PriceSmart
(the defendant) was ordered to pay this sum to Ms. Wing within a stipulated period of time.
Harsh and Oppressive
The words “harsh” and “oppressive” refers to cruel tyrannical behaviours and actions used to
maliciously exercise power over someone who is seen as inferior. This power imbalance is
typically seen when persons of a higher position abuse their position and influence to treat a person
with “lesser” standing unjustly. The term harsh and oppressive is used when a sanction imposed
is disproportionate to the offence committed. As seen in the case of Banking Insurance and
General Workers Union v CL Communications Limited, the union argues that Ms. Tiffany
Pereira was unfairly dismissed by the defendant’s (CL Communications Limited) Chief Executive
Officer, Mr. Anthony Maharaj. Whereby Mr. Maharaj did so due to Ms. Pereira’s alleged writing
deficiencies. However, due to the precedents created by the Scotia Bank case supra, the court found
that progressive discipline should have been applied and that Ms. Pereira should have been warned
both verbally and written and allowed time to improve on this alleged writing skill deficiency. The
court observed none of these actions displayed by the defendant and thus determined that Ms.
Pereira was dismissed in circumstances that were harsh and oppressive and contrary to the
principles of good industrial relations practice. The court ruled in favour of Ms. Pereira and
awarded her damages in the sum of seventy-five thousand dollars ($75,000.00) to be paid by the
defendant.
According to Section 10(4) and (5) of the Industrial Relations Act, Ch. 88:04, (“the Act”). The
Court's power to award damages including exemplary damages is based on statute.
“(4) Notwithstanding any rule of law to the contrary, but subject to subsections (5) and (6), in
addition to its jurisdiction and powers under this Part, the Court may, in any dispute concerning
the dismissal of a worker, order the re-employment or reinstatement (in his former or a similar
position) of any worker, subject to such conditions as the Court thinks fit to impose, or the payment
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of compensation or damages whether or not in lieu of such reemployment or reinstatement, or the
payment of exemplary damages In lieu of such reemployment or reinstatement
(5) An order under subsection (4) may be made where, in the opinion of the Court, a worker has
been dismissed In circumstances that are harsh and oppressive or not in accordance with the
principles of good industrial relations practice; and In the case of an order for compensation or
damages, the Court In making an assessment thereon shall not be bound to follow any rule of law
for the assessment of compensation or damages and the Court may make an assessment that is in
its opinion fair and appropriate.”
ANALYSIS:
From the facts, it is clear that Rachel utilized a post on FaceBook in a disrespectful way that could
only have brought the company into disrepute. It is clear that DTE has a zero tolerance policy on
this type of behaviour on social media. Rachel from the facts can be assumed to be aware of this
policy. Rachel was called into a meeting and only asked to confirm that she in fact issued the post.
When this was confirmed she was immediately dismissed. This dismissal was based on only one
element of good industrial relations practices in that she was asked to confirm that she was the
author of the post. There is no evidence that she was allowed representation; given full particulars
of charges; given time to prepare; or was summoned before an impartial tribunal. Therefore the
facts suggest that this was a summary dismissal in form and substance although she did have one
meeting prior to being dismissed. Being a summary dismissal, the question whether the behavour
of Rachel amounted to gross misconduct and so justified being without notice and without a
payment in lieu of notice. The facts suggest a zero tolerance policy for which Rachel was aware
therefore the only requirement was to confirm that she in fact made the post. Rachel defence
that she was joking is not acceptable as it would be contrary tolerance policy which makes no
allowance for joking. The nature of the post mocked the consumers who suffered tremendously
due to the blackout and therefore it would have the company look extremely bad when one of
its employees engaged in mocking the consumers. There it amounted to gross misconduct and
was not disproportionate to the offence committed.
CONCLUSION
DTE was entited to summarily dismiss Rachel and the dismissal was not harsh and oppressive as
she engaged in gross misconduct contrary to the well stated zero tolerance policy on the use of
social media.
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