In the case of Andrew McDade v Norman Emerson Group Limited the respondent is a family-owned business which has operated for over 75 years in mid-Ulster. It provides sand, stone and other building materials to a wide range of customers across the island of Ireland, including the GAA, building contractors and members of the public. It employs a mixed workforce.
The claimant had been employed as a HGV driver for approximately eight years up to his dismissal on 10 June 2022. As a HGV driver delivering products to customers, and collecting returns from customers, he had been a direct point of contact between the respondent company and those customers. He had been the face of the respondent company.
On 28 May 2022 the claimant livestreamed a video on his Facebook account from Dundonald Orange Hall. This video included a clip of approximately 31 seconds which showed a group of individuals singing a sectarian song which mocked a young woman who had been murdered on her honeymoon. That Facebook account clearly identified the claimant as an employee of the respondent company.
That 31 second clip from the four-minute video “went viral” and provoked strong condemnation, not just in Ireland, but across the world.
The respondent company investigated the claimant’s conduct. Following a disciplinary procedure, the respondent summarily dismissed the claimant for gross misconduct on 10 June 2022. The claimant did not appeal against that dismissal.
On 11 August 2022, the claimant lodged a claim in the tribunal alleging that he had been unfairly dismissed. Mr McDade, a Portadown Orangeman at the time of the incident, had claimed he was “not aware” of offensive chanting about Mrs McAreavey when he streamed the video. He had claimed to be simply streaming to “show the atmosphere of the day”, adding he could not be responsible for the actions of others during a live stream.
But in rejecting Mr McDade’s case for wrongful dismissal, the tribunal noted that around 12 people had been singing the song “no more than three to four metres away from the claimant, without any intervening obstruction and at some volume”.
The president of the Industrial Tribunals and Fair Employment Tribunal, Noel Kelly, said the claim had been “always misconceived and without merit”.
Mr McDade’s employer became linked with the video because Mr McDade’s Facebook profile description included their name.
The tribunal report added: “It is clear, and the respondent Company had been entitled to conclude, that the claimant had heard and had understood the song and had heard and understood the lyrics, which had mocked the death of a young woman in tragic circumstances.
“It is clear… that the claimant could not have failed to hear and could not have failed to understand what had been sung in front of him on this occasion.
“The claimant could have objected to the singing. He could have intervened. He could have stopped the livestream at any point. He chose to do none of these things.”
“The decision to summarily dismiss the claimant was a decision which had been well within the range of reasonable responses open to the respondent in all the circumstances of this case. Indeed it is difficult to see how the respondent, or any reasonable employer, could have arrived at a different conclusion or penalty.”
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