Irwin vs Charles Hurst Limited
| Jurisdiction | Northern Ireland |
| Judgment Date | 22 July 2013 |
| Docket Number | 02254/12IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Charles Hurst Limited |
THE INDUSTRIAL TRIBUNALS
CASE REF: 2254/12
CLAIMANT: Stephen Irwin
RESPONDENT: Charles Hurst Limited
DECISION
a) The unanimous decision of the tribunal is that the claimant was unfairly dismissed.
b) The tribunal refuses to order reinstatement or re-engagement.
c) The tribunal orders the respondent to pay the claimant compensation in the sum of £1,566.16.
Constitution of Tribunal:
Chairman Ms J Knight
Members: Mrs E Armstrong
Mrs M Heaney
Appearances:
The claimant was represented by Mr Neil Richards, Barrister-at-Law, instructed by Haugheys Solicitors.
The respondent was represented by Ms Rosemary Lundy of Arthur Cox Solicitors.
ISSUES
- The issues to be determined by the tribunal were
a) Was the claimant unfairly dismissed?
b) If the dismissal was unfair, what is the appropriate remedy?
EVIDENCE
- Mr Gary Pickering, Mr Jeff McCartney and Mr Richard Stinson gave evidence on behalf of the respondent and the claimant, Mr Stephen Irwin, gave evidence on his own behalf. The tribunal also considered documentation to which it was referred during the hearing
FINDINGS OF FACT
- The tribunal found the following relevant facts to be proven on a balance of probabilities
BACKGROUND
- The claimant, Stephen Irwin, was employed by the respondent as a Parts Adviser in its Vauxhall franchise in Lisburn, for almost 22 years until his dismissal for gross misconduct, effective on 26 September 2012. At the effective date of dismissal the claimant was 52 years old. The respondent is part of the Lookers Motor Group. The claimant’s line manager was a Mr Cyril Morrison.
- The claimant had a Facebook page under the name ‘Stephen “Skin” Irwin’ on which he posted messages and comments to his Facebook “friends and family”. This activity was carried out by the claimant on his home computer and in his own time.
- On 7 September 2012 a Mr Brian Donnelly, a customer of the respondent, telephoned Mr Gary Pickering, the General Aftersales Manager, Vauxhall, to complain about comments posted by the claimant on Facebook about a collie dog named Cody which was seriously injured and eventually died after being set on fire by youths in Maghaberry. A Facebook page called “Justice for Cody” (JFC) was set up by the family which owned Cody which attracted widespread support in the Facebook community inside and outside Northern Ireland. Mr Donnelly was himself a friend of the JFC page. On 6 September 2012 he saw the comment, ““IT’S ONLY A FECKING DOG”” which had been posted by the claimant on the JFC page. A number of comments posted on the JFC page expressed disapproval at this comment, including “Not sure there’s any room for you here, Stephen! You’re entitled to your opinion but it’s NOT appropriate to force it on others with the sole aim of hurting! Give it up for god sake!”. Mr Donnelly was able to follow the link from the claimant’s comment to his Facebook page, where he was able to see other comments relating to Cody posted by the claimant and his friends, which he found offensive. Mr Donnelly could see from the claimant’s Facebook profile that he was employed by the respondent. As a consequence of the claimant’s posts he contemplated cancelling an order he had placed with the respondent for a new Astra.
- The comments on the claimant’s page to which he objected included:-
“ok ok...enough about this fecking dog....worse things happen to people on a daily basis and we don’t hear half this fecking crying..i know it was wrong but give it a rest and get your priorities right”.
A picture of a dead Korean dog on a barbeque which the claimant had downloaded from Google to his page and “liked” and posted the comment: “cody...count yourself lucky you don’t live in Korea”.
“how do you turn a cat into a dog – cover it in petrol, light a match and . ...woof”.
“2 Koreans having a barbeque” which elicited the response from his brother “Maybe it was the travelling Koreans that tried to bbq Cody”
“So a dog gets killed in magaberry (sic) .. tourist shot in france and a 4 year old...”
Other responses were posted by some of the claimant’s Facebook friends, some of which were disapproving of the claimant’s comments, others responding in kind.
- Mr Donnelly followed up with an email to Mr Pickering attaching screenshots of the offending comments and images posted by the claimant, in which he stated:-
“I am certain that throughout today other people will be raising complaints with you over this matter as this has caused a lot of anger and annoyance within the “Justice for Cody” group on Facebook ...Some of those who have supported the family and their children through this tragic event (51,000 people and counting) have been posting comments targeted at Charles Hurst and especially the Lisburn branch condemning Steve Irwin’s comments and his association with Vauxhall.
I hope Charles Hurst Vauxhall will implement disciplinary proceedings against this employee and advise him to issue an apology to the family for his hurtful comments and the anger he has caused. I would recommend you ask Steve Irwin to donate towards the dogs’ (sic) recovery rather than waste time and effort creating hate mail and stress for those already suffering.”
- Afterwards Mr Pickering received two or three telephone calls later the same day complaining about the claimant’s comments. He did not record any details of these complaints. Three further emails were received by the respondent from a Mrs Sharon Bridges, a Miss Hannah Bridges and a Mr Samuel Bridges, later that afternoon through its website, which were forwarded to Mr Pickering at 14.57, 15.52 and 15.54 respectively. At the time Mr Pickering noted that the senders had the same family name and had the same postal address although he did not at the time consider whether there could be any connection between the senders.
- These emails called on the respondent to take disciplinary action against the claimant for his comments, stating that they would not do business and would urge others not to have dealings with the respondent as a consequence of the claimant’s comments, which brought the whole name and ethos of the company into disrepute. Mrs Bridges suggested that she was due to change her car in 18 months time and had been considering buying an Astra but would not be doing any business with the respondent. The email from Samuel Bridges in particular was expressed in extremely pejorative terms. He stated that he had been about to buy a car from the respondent but had decided to take his business elsewhere, having seen the claimant’s comments and that, “I suggest you sack that disgusting excuse of a human being before you loose (sic) more customers. Here’s a link to that disgusting bastard’s Facebook page. I recommend that you look at it and I can guarantee that you will agree with me. I would like a response. If you ignore me it’s only going to get worse.”
- The respondent went onto the JFC page made on 7 September 2012 and made screenshots of several other postings by Mr Donnelly and others concerning the claimant’s comments. Mr Donnelly posted that the claimant worked at Charles Hurst, and that he had spoken with the claimant’s manager who he said was really annoyed and gave Mr Pickering’s telephone number and urged others to contact the respondent in order to “get the idiot disciplined”. He stated that he intended to cancel an order for a car he had placed with the respondent. He suggested that the Nolan show might “get in on the act”. In another post he said “I recommend phoning head office and asking for...
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