Worker

Employer

Anonymised Parties

A Manager

A Financial Services Company

Representatives

Michael Kinsley BL

Lauren Tennyson BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00065514-001

20/08/2024

In March 2021, the complainant commenced working for the respondent on a fixed term contract as an operations officer.  In October that year, he was promoted to a permanent job as operations manager.  In this capacity, he reported directly to the chief executive officer (CEO).  In March 2023, on the retirement of the assistant manager, he moved into that role, incorporating his previous role as operations manager.  I note from documents provided at the hearing that he was considered to be “number 2” to the CEO.  His annual salary was €60,000.

The complainant had around 12 people reporting to him, one of whom was “Employee A.”  Just before finishing work at around 16.00 on Tuesday, January 30th 2024, the complainant took Employee A’s mobile phone from her desk and sent a sexually explicit WhatsApp message to her husband.  Employee A discovered the message as she left to go home.  The complainant owned up to sending the message, claiming it was meant to be a joke.  Later that evening, Employee A contacted the CEO and asked for a meeting to discuss what had happened.  We know from the evidence of the CEO that he was on leave for two days and, when he returned to the office, Employee A told him that, on January 30th, the complainant had taken her phone and about the contents of the message.  She said that she found the message vulgar and disgusting, as did her husband.  She said that she was unsure what other content from her phone had been accessed by the complainant and she felt that her privacy had been invaded.  The CEO said that Employee A told him that she wanted to make a formal complaint and he advised her to put her concerns in writing.  A copy of Employee A’s complaint dated February 6th 2024 was included in the documents submitted at the hearing.

Next in line to the complainant in the organisation’s hierarchy is a member of the finance department, who, in the context of this complaint is referred to as “Employee B.”  In his evidence, the CEO said that, on February 6th, he asked Employee B to attend a meeting with him as a witness.  The purpose of the meeting was to tell the complainant that he was suspended on full pay, pending an investigation into his conduct on January 30th.  The evidence of the CEO is that, after the meeting, Employee B said something along the lines of, “I can’t believe this is happening again.”  The CEO said that he had forgotten that there had been a previous incident, in September 2022, when the complainant accessed Employee’s B’s phone when she was on holidays.  He said that he told Employee B, “If we’re to do anything about this, I need it documented.”

The CEO said that Employee B “took a couple of days to see if she wanted to make a written complaint,” and, on February 12th, she wrote a note with the title, “Complaint letter re Improper Use of Mobile Phone etc.”  In her note, Employee B explained that she had the credit union online banking app on her phone and, before she went on holidays in September 2022, she left her phone with a colleague, “CD,” in case he or the CEO needed to authorise bank transactions using the app.  CD shares an office with the complainant.  Employee B brought an old phone on holidays and when she checked her social media, she noticed that someone had accessed her account and had posted two sexually offensive messages as if they were from her.  A message was also sent to a friend in her list of contacts, saying, “Hi, how are you?”  Her friend did not reply.  Employee B was concerned that the credit union banking app had also been accessed.  She contacted the complainant and told him that she suspected that her phone had been hacked and she instructed him not to use the banking app.  He pretended to be serious at first and then he began laughing and told her that he had posted the messages as a joke.  Employee B was on holidays at the time with her husband and her father, who were aware of the messages and were disgusted by them.    

When she returned from her holidays, Employee B went immediately to the complainant and CD and confronted them about her social media being accessed.  The complainant again confessed that he had posted the message and that he had done so as a joke.  In her note of the incident, Employee B said that she was extremely annoyed that someone accessed her personal accounts.  She told the complainant never to take her phone again and she said that she didn’t accept that what he had done was a joke.  She then arranged with the CEO to purchase a separate “finance phone” to use the banking app.  Employee B said that she didn’t take the matter any further at the time. 

In February 2024, the CEO engaged an independent HR consultancy to conduct an investigation into the complaints of Employee A and B in accordance with stage 3 and 4 of the respondent’s policy on the prevention of bullying and harassment.  Stage 3 provides that a complaint is dealt with formally and stage 4 sets out the steps of a formal investigation.  Terms of reference for a formal investigation were sent to the complainant on February 14th 2024.  The terms of reference state that the purpose of the investigation was to determine,

1.       Whether each complaint falls within the definition of bullying, harassment, or sexual harassment;

2.       The facts and the credibility, or otherwise, of each complaint and to ascertain whether, on the balance of probabilities, the behaviour complained of occurred and whether each complaint is upheld or not upheld, and,

3.       Whether each complaint was malicious or vexatious.   

The investigator met Employee A and B on February 19th and 20th respectively.  She met the complainant on February 21st.  Copies of the transcripts of the meetings were shared with the participants and were included in the documents submitted by the respondent at the hearing.  A draft report was issued to the complainant on February 26th and a final report was produced on February 29th 2024.  The investigator concluded that the conduct described by both employees did occur and that it came within the definition of sexual harassment.  In emails in response to the investigator’s findings, the complainant told the CEO that he accepted that he did “two stupid things” but that he had concerns about the report’s conclusions.  He said that he was friends with Employee B and that they had cleared up the impact of him accessing her phone when she was on holidays.  He felt that the inclusion of her complaint with that of Employee A was unfair.   He said that he went out of his way to support staff in the organisation and that the report portrayed him as someone he was not.

Considering the complaint of Employee A, the investigator found as follows:

“On the basis of the evidence, which is not disputed, and considering the Prevention of Bullying and Harassment policy …the Investigator finds that the Respondent[1] has engaged in conduct which does not comply with the policy and has sexually harassed the Complainant (Employee A).  The severity of the sexual harassment is high given the definition of sexual harassment above.  Taking ownership and responsibility after the event does not reduce the severity of the issue or mitigate the situation.

Given the Respondent’s role as a senior manager, as the Assistant Manager (including Operations Manager), reporting to the CEO, and a member of the senior management team …the onus and expectation is that (the respondent) would role-model professional behaviour and would at the very least demonstrate behaviour aligned with the policy.

Given that the behaviour was demonstrated towards one of his team members, it would have not just impacted her right to respect and dignity at work but also would have created a seriously compromised environment for her to work successfully in, thus, ‘violating a person’s dignity’ in creating an intimidating, hostile, degrading, humiliating or offensive environment for the person”.

Given that the behaviour is a repeated violation of a colleague’s right to respect and dignity at work, and given that on a previous occasion another senior colleague made it absolutely clear to him that this was a behaviour that was totally unacceptable, and given that the Respondent committed to never repeating the offence again (which for the record he didn’t repeat with that particular Complainant), the severity of the issue is very high.”

With regard to Employee B’s complaint, the investigator reached the following conclusion:

“On the basis of the evidence, and the balance of probability, and considering the Prevention of Bullying and Harassment policy …the Investigator finds that the Respondent has engaged in conduct which does not comply with the policy and has sexually harassed the Complainant (Employee B). The severity of the sexual harassment is high given the definition of sexual harassment above.”

A disciplinary hearing took place on March 11th 2024.  The meeting began at 11.00am and the hearing was conducted by the CEO and a member of the board of directors.  The complainant attended with his colleague, CD.  He apologised for his conduct, and he also outlined the impact on him and his family of the investigation and his concern at the prospect of losing his job.  He felt that the investigation into the complaint of Employee B was unfair and he was confused about why there was an investigation into Employee A’s complaint, when he had admitted what he had done at his meeting with the CEO on February 6th.     

When the complainant had made his statement, and when CD had made a brief statement in support of his overall conduct, the CEO asked them to leave for a few minutes.  At 11.40am, he was called back into the meeting.  He was informed by the CEO that he and the board member had reached the conclusion that, because of his conduct, which was considered to be at the high end of sexual harassment, he should be dismissed. 

On March 12th, in an email to the CEO, the complainant appealed against his dismissal and a meeting to consider his appeal was held on March 15th 2024.  Six members of the board of directors attended, including the chairperson.  The complainant sent a voice recording which was transcribed and re-produced in the respondent’s book of documents at the hearing.  In his statement, the complainant apologised again for his behaviour, which, he said was not malicious.   He said, “in the heat of the moment, I made two bad choices” but he claimed that his actions were in line with “jokes or stuff” between staff.  He suggested that, with regard to Employee B, she had used what she heard in the meeting on February 6th to make a complaint against him, and he claimed that she was conflicted in this regard.  He claimed that Employee A and B lied to the investigator, and that he was the only person she interviewed who told the truth.  He said that the use of the term “sexual harassment” to describe him was grossly untrue.  He said that he feels like he was the “fall guy” for the widespread sexual comments and innuendo between staff and he thinks that he shouldn’t have been the one to lose his job.  He asked the appeal committee not to let “two moments of madness” define him.

After reflecting on the complainant’s appeal, the committee decided to concur with the initial decision to dismiss him and his appeal was unsuccessful.

On behalf of the complainant, Mr Kinsley argued that he was subjected to a process that was pre-judged, biased and procedurally flawed.  He said that the respondent failed to adhere to its own procedures or to the requirements of fairness and natural justice.

In her submission, Ms Tennyson said that the complainant was dismissed for gross misconduct arising from two findings of sexual harassment following an investigation and a disciplinary process.  The respondent’s position is that the investigation was properly conducted in accordance with the organisation’s Policy on the Prevention of Bullying and Harassment and that the dismissal of the complainant was not unfair.

It is the respondent’s case that the dismissal of the complainant was fair and proportionate, and, as it resulted from the conduct of the complainant, is consistent with s.6(4)(b) of the Unfair Dismissals Act.  Ms Tennyson referred to several legal precedents to support the respondent’s case that the dismissal of the complainant was not unfair:

In the High Court decision in TheGovernor and Company of the Bank of Ireland v Reilly[2], considering the role of a court in determining if a dismissal was unfair, Mr Justice Noonan stated that,

“…the onus is on an employer to establish substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in Section 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal.  Section 6(7) makes clear that the Court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal.  That is however, not to say that the Court or other relevant body may substitute its own judgement as to whether the dismissal was reasonable for that of the employer.  The question is rather, whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned – see Royal Bank of Scotland -v- Lindsay UD EAT/0506/09/DM.

I respectfully agree with the views expressed by Judge Linane in Allied Irish Banks -v- Purcell 2012 23 ELR 189, where she commented (at page 4):

References made to the decision of the Court of Appeal in British Leyland UK Limited -v- Swift 1981 IOLR 91, and the following statement of Lord Denning MR at page 93:

‘The correct test is:  was it reasonable for the employers to dismiss him?  If no reasonable employer would have dismissed him, then the dismissal was unfair.  But, if a reasonable employer might have reasonably dismissed him, then the dismissal was fair.  It must be remembered that, in all these cases there is a band of reasonableness, within which one employer might reasonably take one view and another quite reasonably take another view.’

It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view, but to ask was it reasonably open to the Respondent to make the decision it made rather than necessarily the one that the EAT or the Court would have taken.”

In Dunne v Securitas[3], Mr Dunne appealed to the Circuit Court against a determination of the former Employment Appeals Tribunal (EAT) that found that his dismissal was not unfair.  Mr Dunne was a security guard and was dismissed when it was discovered that he failed to monitor cameras and buildings during certain times.  In her decision in the Circuit Court, Ms Justice Fergus held that the approach to by adopted by a court, and now by me as the adjudicator in this matter, is to consider whether the employer’s decision to dismiss the employee was reasonable at the time it was taken, and whether there was sufficient reason to dismiss for gross misconduct. 

Ms Tennyson submitted that, where an employee has admitted to the conduct complained about, an employer is not required to undertake the same degree of investigation that may otherwise be required.  In this regard, she referred to paragraph 16.14 of the publication, “Redmond on Dismissal Law” by Dr Des Ryan:[4]

“Where an employee admits to dishonest conduct, self-evidently to allow an employee the opportunity to show cause as to why the employer should not it will not be necessary for an employer to embark upon the sort of investigation that would be necessary if reasonable grounds were needed to confirm its suspicions.  However, it will still be advisable dismiss.  This will enable the employer to form a view on the reasonableness of its decision to dismiss in the light of all the circumstances.”

Ms Tennyson also referred to UK Employment Tribunal case, The Royal Society for the Protection of Birds v Croucher[5].  Mr Croucher had admitted to financial misconduct and he was dismissed after a brief disciplinary investigation.  The Tribunal found that the employer was entitled to dismiss him and that his dismissal was not unfair.  Ms Tennyson noted that this authority has been accepted by the Labour Court in a recent decision in Dunnes Stores v Kati Kipli[6].

In a decision of the former EAT, O’Callaghan V Dunnes Stores[7], the Tribunal considered the adequacy of the employer’s investigation and disciplinary procedure following breaches of the policy on customer refunds.  Mr O’Callaghan was a manager; he admitted to the breach of procedure and he was summarily dismissed.  He argued that he had an unblemished record over 15 years and had been under pressure to meet sales targets.  The EAT took account of the fact that he was a manager and that he was responsible for implementing policies and for training other employees and, based on this breach of trust, they rejected his claim that his dismissal was unfair.

In the instant case, at the disciplinary hearing and at the appeal, the complainant emphasised his good record with the respondent and his positive working relationships with colleagues.  However, Ms Tennyson said that the respondent’s Policy on the Prevention of Sexual Harassment means that a one-off incident may constitute sexual harassment and sexual harassment is considered to be gross misconduct that may result in summary dismissal.

Ms Tennyson submitted that the respondent is a well-known organisation with a reputation to protect and is bound by its standards of conduct and ethics and employees are required to behave with dignity, respect and honesty in respect of internal work-related matters.

Following a full investigation in which the complainant was afforded fair procedures, and a disciplinary hearing at which he was given an opportunity to address the findings of the investigation report, the respondent’s managers decided that the complainant’s behaviour was properly categorised as gross misconduct and that “trust had been irremediably breached.”

Ms Tennyson submitted that the decision to dismiss the complainant was “an inherently reasonable decision,” given as it was on foot of two findings of sexual harassment against two employees.  As set out in the High Court case in Bank of Ireland v Reilly, it is not for me, as the adjudicator, to come to a view on whether it would have undertaken an investigation, how it would have conducted an investigation or what disciplinary sanction would have been appropriate.  Rather, the question for me is whether it was reasonably open to the respondent to take the decision to dismiss the complainant.  

The final precedent cited by Ms Tennyson was that of Maranan v Beechfield Nursing Home Limited[8].  Ms Maranan was dismissed for a grave breach of the privacy and dignity of a nursing home resident.  When the incident was discovered, she was called to a meeting and suspended with pay pending the outcome of an investigation.  A disciplinary hearing was conducted by the person who suspended her, and this person decided that her actions constituted gross misconduct.  Finding that Ms Maranan’s dismissal was not unfair, the Tribunal stated,

“The claimant accepts that her actions were in breach of company policy… She stated that she had received that policy and had made herself familiar with it.  She did however underestimate the gravity of the breach.  She, unlike the respondent, did not equate her actions with actions that could amount to gross misconduct.

The Tribunal notes that there were flaws in the respondent’s disciplinary process.  MMcG who was the investigating officer also carried out the disciplinary meeting and made the decision to dismiss. The investigation and the disciplinary hearing should be conducted by two individuals. However, in this situation we find the claimant was not prejudiced by the flaw as there was agreement in relation to the issue between all parties.  The only non-meeting of minds was in relation to the gravity of the situation.”

Ms Tennyson remarked that the complainant has taken the view that his dismissal was not warranted, but she said that the respondent’s position is that the findings of the external investigator were extremely serious and at the higher end of the scale of sexual harassment “and consequently warranted dismissal for gross misconduct.”

The Burden of Proof

Asserting that the dismissal of the complainant was unfair, Mr Kinsley referred to the onus of proving that it was not unfair which rests with the respondent.  Addressing the issue of procedural fairness, Mr Kinsley referred to several legal precedents which outline the obligations of an employer in this regard.

In a decision of the EAT in 1979, Dunne v Harrington[9], the Tribunal stated that, an employer should,

(a)    Personally, and in a fair and reasonable manner, ie, as fully as is reasonably possible, confront the ‘suspected’ employee with ‘evidence,’ checking on and giving fair value to the employee’s explanation or comments and allowing the employee to be represented at all such meetings / confrontations if the employee requests it or a union/management agreement requires it and to produce ‘counter evidence’ or he may:

(b)    Rely on the reports of others.  If he does so without confronting the accused employee with the contents of the same, without hearing, investigating and giving value to his replies, giving him reasonable opportunity to produce rebutting ‘evidence,’ and to be represented if the employee feels this to be desirable, then such employer breaches a fundamental rule of natural justice, viz, that the other party (ie, the employee in these circumstances) should be heard.  In short, an employer acting on the reports of third parties and not acquainting the employee with same does so at his peril if it results in the dismissal of that employee.”

In a 1973 decision of the Supreme Court, Glover v BLN[10], it was held that any disciplinary process must be carried out in accordance with the principles of natural justice:

“This Court in In Re Haughey [1971] IR 217 held that Article 40.3 of the Constitution was a guarantee of fair procedures.  It is not, in my opinion, necessary to discuss the full effect of this Article in the realm of private law or indeed of public law.  It is sufficient to say that public policy and the dictates of constitutional justice require that statutes, regulations or agreements setting up machinery for taking decisions which may affect rights or impose liabilities should be construed as providing for fair procedures.  It is unnecessary to decide to what extent the contrary can be provided for by agreement between the parties.”

In the Labour Court in, Kilsaran Concrete, Kilsaran International Limited v Vitalie Vet[11], it washeld that an employee is entitled to be made aware, in detail, of the allegations against them at the commencement of an investigation.  This is necessary to comply with the requirements of fair procedures set out in the Supreme Court in Glover and to give the accused employee an opportunity to prepare a defence.

Mr Kinsley submitted that the transcripts of the independent investigation and the disciplinary meeting demonstrates that the respondent was not acting impartially and did not discharge its obligations to consider and examine the matters put forward by the complainant.  In particular, Mr Kinsley said that the respondent failed to examine the explanations given by the complainant regarding the culture and behaviour of staff in the organisation.  Mr Kinsley said that the complainant’s submissions in this regard were treated dismissively by the investigation, disciplinary panel and appeal.

Mr Kinsley said that the failure of the respondent to provide the complainant with documents and evidence used during the investigation process renders the process unfair.  He said that the complainant was presented with generalised assertions and wasn’t given the time or opportunity to properly consider and challenge the evidence against him.

No consideration was given to the complainant’s efforts to raise his concerns about the fairness of the investigation process and no remedial action was taken by the respondent to address his concerns.  When it came to dismissing the complainant, no consideration was given to the proportionality of the sanction.  The managers failed to engage with the complainant’s submission in this regard and acted in a prejudged manner.  The complainant asked for his own actions to be considered in the context of the actions of other employees and the culture in the workplace, but the respondent dismissed this request without consideration.

Appeal

Considering the complainant’s appeal of the respondent’s decision, Mr Kinsley submitted that the failure of the respondent to offer the complainant an adequate appeal of the decision to dismiss him and the failure of the board members to engage with all the matters he raised in his appeal, amount to a denial of his procedural rights to an adequate appeal.

Proportionality

It is the complainant’s position that the respondent failed to have regard to its own written policies when it made the decision to dismiss him.  Based on his long work record and, in light of the issues he raised during the disciplinary process, Mr Kinsley submitted that the decision to dismiss him was wholly unfair and disproportionate.  He submitted that the investigations carried out by the managers were biased and pre-judged and were intended to enhance the case against the complainant.  In this regard, Mr Kinsley referred to the decision of the EAT in Kelly v An Post[12], which held that, to meet the requirements of fair procedures, it is necessary that an investigation seeks out evidence that exonerates and well as tends towards guilt.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that,

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

It is apparent from this that every dismissal is unfair until the employer demonstrates otherwise.  The burden of proof therefore rests with the respondent to set out the substantial grounds justifying the dismissal of the complainant in this case.  While the responsibility for proving that a dismissal is not unfair rests with the employer, s.6(4)(b) of the Act provides that,

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from …the conduct of the employee.”

The legislation therefore recognises the right of an employer to dismiss an employee for conduct that, considered by another reasonable employer in similar circumstances, is unacceptable or unreasonable. 

The respondent’s submission of November 14th 2024 states that the complainant was dismissed for gross misconduct, but his letter of dismissal of March 12th 2024 contains no reference to gross misconduct, or to sexual harassment, or to any specific reason for dismissing him.  The letter contains just one sentence:

“This letter is confirmation that your employment was ended by dismissal on Monday 11th March 2024.”

The note of the disciplinary meeting on March 11th 2024 records the CEO as saying,

“The decision of the Disciplinary Panel is summary dismissal, I’m afraid, we feel that the fact that there’s a couple of incidents, the fact that they constitute sexual harassment and the fact that they were found by an independent investigator to be of high severity of sexual harassment, under our policy we don’t really feel we have an awful lot of choice in the matter.” 

It is apparent from this that the complainant was dismissed because of two incidents considered to be in the “high severity” category of sexual harassment.

In tandem with the reasonableness of the decision to dismiss an employee, the Act also requires an employer to have regard to fair procedures.  Section 6(7) addresses this issue:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so -

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

Section 14(1) refers to the obligation on an employer to provide an employee with a written copy of the procedure that will be used “before and for the purpose of dismissing the employee.”  A copy of the respondent’s disciplinary procedure was included in the HR policy document issued to the complainant when he commenced work and was re-issued on February 6th 2024 when he was suspended.  Section 7(2)(d) of the Act is a reference to the Code of Practice on Grievance and Disciplinary Procedures which is given legal effect in Statutory Instrument 146 of 2000.

On behalf of the complainant, Mr Kinsely submitted that the respondent failed to adhere to its own written procedures and to the requirements of natural justice.  Before considering the issue of procedural fairness, I wish to examine the reasonableness of the respondent’s decision to dismiss the complainant and to consider if, having regard to the circumstances, there were substantial grounds for dismissing him.

Was it Reasonable to Dismiss the Complainant?

There are many precedents where the issue of the reasonableness of an employer’s decision to dismiss an employee are examined.  In her submission on behalf of the respondent, Ms Tennyson referred to the decision of the High Court in James Reilly v Bank of Ireland.  In 2009, when he was found to have distributed inappropriate emails to colleagues, Mr Reilly was dismissed from his job as a sales manager with the bank.  In his judgement, Noonan J observed that: 

“An assessment of the reasonableness and proportionality of the employer’s response must have regard to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee.” 

In the case of Pacelli v Irish Distillers Limited[13], the task of EAT, and now my task, is to consider if the respondent’s decision to dismiss the complainant was consistent with what “a reasonable, prudent and wise employer would have done having regard to the nature of the case.”

There is no dispute regarding the facts that led to the complainant being dismissed.

1.       On January 30th 2024, he opened the phone of a colleague who reported to him and sent her husband a sexually explicit message purporting to be from her;

2.       In September 2022, he accessed another colleague’s social media account and posted a sexually explicit message appearing to be written by her.

In his defence, the complainant argued that his conduct was, to some degree, in line with the culture in the organisation.  Apart from one strange email from Employee B which was not sexual in nature, he submitted no evidence to support his contention that sexual banter was commonplace among employees. 

Assessment of the Severity of the Conduct

The respondent’s Policy on the Prevention of Bullying and Harassment defines sexual harassment as,  

“… any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has a purpose or effect of violating a person’s dignity in creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.  Sexual harassment may occur between men and women or between persons of the same gender.  A single incident may constitute sexual harassment.”

In her report of February 29th 2024, the independent investigator concluded that the complainant engaged in conduct which did not comply with this policy and that he sexually harassed Employee A.  She went on to say that the “severity of the sexual harassment is high given the definition of sexual harassment above.”  Later in her report, she described the complainant’s conduct on January 30th 2024 as “a repeated violation of a colleague’s right to respect and dignity” and, for this reason, she said, “the severity of the issue is very high.” 

With regard to Employee B, the investigator concluded also that the complainant sexually harassed her and that “the severity of the sexual harassment is high.”

In the absence of any explanation in the letter of dismissal, we know that the disciplinary panel relied completely on the findings of the independent investigator and that the complainant was dismissed for a “high severity of sexual harassment,” as stated by the CEO at the conclusion of the disciplinary meeting.  The description of behaviour as “severe” means that it must be sufficiently grave for the victim to be intimidated and afraid or, it must be conduct that persists over time with the result that the victim is traumatised.

By pretending to be Employee A and sending a sexual message to her husband and by pretending to be Employee B and a posting a sexual comment online, the complainant’s actions could only have caused distress for the two women.  I think that any reasonable employer faced with this behaviour would have concluded that the complainant’s actions were grossly offensive and irresponsible.  In September 2022, Employee B was angry and embarrassed by what occurred.  She dealt with the complainant’s conduct with maturity and forbearance, putting him on notice that she would not tolerate it in the future.  It was apparent from her evidence that Employee A was upset and angry because of the WhatsApp message that was sent to her husband on January 30th 2024.  I have considered these two incidents carefully, and I think it was reasonable for the two women to be angry, embarrassed, shocked and disappointed by the complainant’s conduct.  I agree that his conduct meets the definition of sexual harassment in the respondent’s policy; he made unwanted sexual remarks which were offensive and degrading and which had no regard for dignity of his colleagues.  It is my view however, that the categorisation of what happened as “high severity of sexual harassment” was too extreme.

In reaching this conclusion, I do not wish to minimise the impact that the incidents had on the two employees.  However, I note the evidence of the complainant that he was friends with Employee B after the incident in September 2022 until he was suspended in February 2024 and the CEO acknowledged this at the disciplinary hearing on March 11th.  For the few days after the incident until he was suspended, the complainant said that he had a “normal” relationship with Employee A.  In her statement to the investigator, Employee A said that she “just kind of got on with things.” 

Retrieval of the September 2022 Incident

While the next issue I wish to address is partly a procedural matter, it is also related to the fairness or otherwise of the decision to dismiss the complainant.  In the context of the January 2024 complaint, it was understandable for Employee B to recall what happened in September 2022; however, in her note of February 12th 2024, she said that, when she told the complainant never to use her phone again, the matter “was done and dusted.”  When he agreed to purchase a “finance phone” in September 2022, the CEO knew why the phone was necessary, but he didn’t take any action to address the conduct that led to Employee B asking for a separate phone.

I think that any reasonable employer would find that the complainant’s conduct in September 2022 was an invasion of the privacy of a colleague and open to serious question.  Even in the absence of a formal complaint, I find it difficult to understand why the CEO did not, at the very least, have a conversation with the complainant about his conduct at the time.  His failure to do so lends some credibility to the complainant’s assertion that there was a culture of doing nothing about unacceptable sexual banter.  Having taken no action in September 2022, I am concerned that the disciplinary panel decided that “the fact that there’s a couple of incidents” was material to their decision to dismiss the complainant.  It is my view that the incident of January 30th 2024 was sufficiently serious to warrant consideration on its own and I find that the retrieval of the September 2022 incident to bolster a case for the dismissal of the complainant was unfair. 

Examination of the Procedure that Ended with the Complainant’s Dismissal

Having considered the submissions of both sides, I agree with the complainant’s case that there were serious failings in the approach taken by the respondent that led them to the decision to dismiss him.  I wish to address these failings in chronological order.

The Independent Investigation

In the first instance, I think it was unnecessary to submit the complainant and Employee A and B to the rigours of an independent investigation.  In her submission, Ms Tennyson referred to the recommendation of Dr Des Ryan in Redmond on Dismissal Law, that, where an employee admits to the conduct, “it will not be necessary for an employer to embark upon the sort of investigation that would be necessary if reasonable grounds were needed to confirm its suspicions.”  Almost immediately, when Employee A and B discovered that their phones had been interfered with, the complainant owned up and there was no need for an investigation to establish that fact.  As it was abundantly clear to the respondent what had happened and who had done it, the next step should have been a disciplinary investigation. 

An independent investigation did take place however, and the terms of reference provided that its purpose was to determine,

1.       Whether the conduct complained about actually occurred and if the complaints were upheld;

2.       Whether the conduct came within the definition of bullying, harassment, or sexual harassment;

3.       To consider if the complaints were malicious or vexatious.

Having agreed these terms of reference, it was not open to the investigator to reach a conclusion regarding the scale of the offence or the severity of the sexual harassment.  I have addressed this matter in the previous section; however, from a procedural perspective, I wish to note that it is my view that the departure of the independent investigator from these terms of reference led to an incorrect finding on the part of the disciplinary panel that he should be dismissed for “highly severe sexual harassment.”  When he was asked about this in cross-examining, the CEO said, “it’s not up to me to critique the report.”  I fundamentally disagree with this.  The role of the disciplinary panel was to examine the facts and to reach their own conclusions about the seriousness of the conduct and, based on those conclusions, to decide if the complainant should be dismissed.  It is my view that, by relying on the opinion of the independent investigator, they failed in their duty to properly consider the complainant’s defence.

Failure to Allow the Complainant to Appeal the Findings of the Investigation

At the hearing, Mr Kinsley raised an issue regarding the failure of the respondent to permit the complainant to appeal against the findings of the investigation report.  The Policy on the Prevention of Bullying and Harassment contains a provision for such an appeal:

“If either party is not satisfied with the outcome of an investigation, he/she has the right of appeal to the Executive committee of the board of directors, excluding any director involved in the Staff Liaison Committee.”

When she gave evidence on the first day of the hearing on November 18th 2024, the investigator was surprised to hear of this provision.  The board member who heard the complainant’s appeal of his dismissal said that the board did not consider the failure to allow the complainant to appeal the findings of the investigation report.  In his evidence, the CEO said that he commenced the process in accordance with the organisation’s disciplinary policy and then he moved to the Policy on the Prevention of Bullying and Harassment.  He said that he realised that the two policies “didn’t align.”  He said that the Staff Liaison Committee, which is referred to as a component of the appeal process, was a feature of the organisation before 2012.  He said that the policy on Bullying and Harassment is not aligned with the revised structures and “belonged to a time when the board got involved in operational issues.”

It was open to the respondent, at any time from 2012, to amend its Policy on Bullying and Harassment.  The fact that it did not do so means that the policy issued to the complainant should have been followed and he should have been informed of his right to appeal against the findings of the investigation report.  Considering the findings in the report, which were catastrophic for the complainant, it is my view that the failure to inform him about his right to appeal was a significant breach of procedural fairness.

Failure to Properly Consider the Complainant’s Case at the Disciplinary Meeting

The disciplinary meeting that ended with the complainant’s dismissal started at 11.00am on Monday, March 11th 2024.  The notes of the meeting show that the complainant did most of the talking.  He said that he was concerned that the report “painted me out to be some kind of evil predator,” which he isn’t.  He apologised several times for what he said was “a poor error of judgement,” and he asked for his record over the previous three years to be taken into account.  The CEO acknowledged that the complainant’s work was excellent and he said that he had appointed him as his “number 2” for a reason.  The complainant asked for consideration to be given to appointing him to a lesser role and he asked the panel not to let “two stupid things” define him.

The notes of the meeting show that the CEO asked the complainant and his colleague, JK to leave the meeting and they were called back in a few minutes later.  The complainant’s evidence is that they were out for seven or eight minutes.  The CEO said that they took a break of between 15 and 20 minutes.

Leaving aside the discrepancy in the recollections, a break of 20 minutes was not sufficient for the panel members to consider the complainant’s explanations and his case that the report reached conclusions that were out of proportion to his conduct.  No consideration was given to the possibility of a sanction short of dismissal or to the complainant’s suggestion that he be demoted.  In this regard, I note the findings of the Labour Court in the appeal of Ibrahim Salah against the decision of the adjudication officer regarding his dismissal by RCI Call Centre (Ireland) Limited[14].  Mr Salah was dismissed after a heated argument which was overheard by customers during which he was abusive to colleagues.  Three hours after the disciplinary meeting, the person who conducted the hearing, Mr Lombard, notified Mr Salah that he was dismissed.  The Labour Court was not satisfied that Mr Lombard gave sufficient consideration to imposing any lesser sanction on Mr Salah and, for this reason and others, his dismissal was found to be unfair.

Conclusion

Under the heading of “Gross Misconduct” the respondent’s disciplinary policy includes “harassment” and “failure to observe the dignity of others.”  It was therefore open to the disciplinary panel to conclude that the complainant was guilty of gross misconduct.  It is my view that most employers would have decided that impersonating a colleague and sending a grossly offensive text message to her husband was gross misconduct.  While it was reasonable to dismiss the complainant, the conclusion of the disciplinary panel that they hadn’t got “an awful lot of choice in the matter” was a failure on their part to properly consider the complainant’s defence.  I find also that their conclusion that his conduct was highly severe sexual harassment was not proportional to the offence.

In the very strange circumstances of this complaint, I am mindful of the approach of Mr Justice Noonan in Reilly v The Bank of Ireland and the requirement to assess the impact of the conduct on the organisation against the impact that a dismissal might have on an employee.  I have concluded that the disciplinary panel reached conclusions that were out of proportion to the complainant’s conduct and that they failed to consider the impact on him of being dismissed.  Considering the advice of the EAT in Pacelli v Irish Distillers, it is my view that a reasonable, prudent and wise employer may have reached a different decision and the complainant may have gone on to make a positive contribution to the organisation.

I have examined the procedures followed by the respondent that ended with the decision to dismiss the complainant and it is my view that, from beginning to end, the procedures were flawed and unfair.  In this regard, I find the decision of the Labour Court in Smurfit Kappa Ireland Limited v Nicholas Foran[15] useful, where the Court found that it could “…not be satisfied that the process used by the Respondent was fair or that it met the most basic of requirements.”  Mr Foran was dismissed because he assaulted a work colleague, but arising from the flawed procedures, the Court determined that his dismissal was unfair.  I, likewise, have concluded that the dismissal of the complainant was procedurally unfair and his complaint under the Unfair Dismissals Act is therefore upheld.

Based on the conclusions set out above, I decide that this complaint is well founded.  Considering the issue of redress, I note the complainant’s evidence that he was unemployed for six months and that he started a new job in September 2024.  A document submitted after the hearing shows that his current wages are €314 per week less than what he earned with the respondent.  I estimate his loss of earnings over the two years following his dismissal to be €74,500 (six months’ pay of €30,000 plus 78 weeks @ €314).

Having concluded that the dismissal of the complainant was unfair, I find that he contributed significantly to the respondent’s decision to dismiss him.  For this reason, I direct the respondent to pay the complainant compensation of €22,500, equivalent to 30% of his losses in the two years following his dismissal.  As this compensation is in the form of lost earnings, it is subject to the normal statutory deductions.

Gross misconduct, dismissal, unfair procedures