A bio-pharma firm employee who sent a female worker a “seriously ill-advised” Facebookmessage has been awarded €40,380 for unfair dismissal.
The message contained inappropriate language of a possible sexual innuendo nature.
The Workplace Relations Commission (WRC) adjudicator, Peter O’Brien, found the main Irish arm of US firm Regeneron unfairly dismissed Robert Libera for gross misconduct on March 20, 2019.
Regeneron has its manufacturing base at the former Dell site in Limerick. Mr Libera worked as a manufacturing support lead with the company.
Regeneron Ireland DAC dismissed Mr Libera after a 22-year-old woman employed by a third-party supplier on site made a complaint concerning a Facebook messenger exchange between the two on January 18, 2019.
In her initial complaint, the woman said that after Mr Libera had given her a fruit juice, he hinted it may have contained a biological fluid or otherwise and messaged her about “part of him” being “inside of her” and “if she felt part of him inside her”.
In his findings, Mr O’Brien determined the text message may have been intended to be humorous but could be considered, in isolation “as inappropriate, offensive, and contain possible sexual innuendo”.
Mr O’Brien said whatever Mr Libera intended, “the message was seriously ill-advised and contained inappropriate language of a possible sexual innuendo nature”.
Mr O’Brien said Mr Libera’s case “is very weak on the substantive issue” but primarily succeeds on procedural grounds.
In making the award, Mr O’Brien weighed Mr Libera’s contribution to his loss at 40%.
Mr O’Brien said: “Sending a message like he did to a female work colleague, no matter how the complainant [Mr Libera] deemed it to be trivial or funny was inappropriate, ill-judged, and resulted in serious consequences for Mr Libera.”
The woman made a complaint concerning the message and met with Regeneron investigators, where she initially described the exchange as having “a big impact on her that weekend and was the worst weekend of her life”.
The woman initially said she was terrified and felt physically ill as a result of the exchange with Mr Libera.
However, Mr Libera told the WRC that he accompanied the text with a clip from US cartoon,, which almost exactly states what Mr Libera said in the text exchange.
Documents provided to Mr Libera show the woman had not seen theclip before making her complaint, while all three Regeneron decision makers who dismissed Mr Libera confirmed they did not see the YouTube clip.
Legal representatives for Mr Libera say theclip “proves that no bad intentions existed in the communications and was intended as a joke”.
Describing himself as a “bigfan”, Mr Libera expected the woman would know the context of his comments as they were well-known and common phrases in .
Two days later, on January 20, the woman emailed Regeneron to say she was withdrawing her complaint and that she now had a different view of the messages.
Mr O’Brien said that nearly all of the woman’s comments in the January 20 email favoured Mr Libera and that the woman did not want the investigation to proceed.
However, Mr O’Brien said the email was never made available to Mr Libera during the investigation of the initial complaint and not made available to the Regeneron decision-makers, who decided Mr Libera should be dismissed.
Mr O'Brien said it was indeed questionable if any investigation at all should have commenced into the allegation based on the clarifying comments by the woman who made the initial complaint.
Mr O’Brien said the failure to provide the January 20 email to Mr Libera was a serious natural justice omission, which put him at a serious disadvantage in defending his position.
He said it was a very serious flaw in Regeneron’s case as the woman who received the text had subsequently significantly amended her views on the issue and did not want an investigation to proceed.
The January 20 email was only made available to Mr Libera’s solicitors, Keating Connolly Sellors Solicitors, after they had made a GDPR data application following his dismissal.
The legal representatives said the actions of Mr Libera, with his good prior record, should have resulted in a much lesser sanction than dismissal.
They said Mr Libera’s career has been derailed and he had suffered financially and there was long-term damage to his career prospects.