Complainant

Respondent

Anonymised Parties

A Worker

A Company

Representatives

  N/A

Katherine McVeigh BL instructed by Eversheds Sutherland LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00068132-001

16/12/2024

The Complainant was employed by the Respondent from 1 September 2021. He was terminated for gross misconduct following allegations having been made against him by a colleague, X, which were initiated on 21 October 2024. At the date of termination on 5 December 2024, the Complainant enjoyed a gross annual salary of €35,856.

The Complainant denied having engaged in any inappropriate conduct toward X. He stated that at no point had he solicited X sexually, nor had he ever engaged in such behaviour toward any colleague. He described his relationships with coworkers as strictly professional and respectful. His initial contact with X began when X joined the project in early 2024. Communication occurred via WhatsApp, with the stated intention of welcoming X and assisting him in integrating into the team—a practice the Complainant claimed he routinely followed with new team members in his capacity as a more senior employee.

X initially responded to the Complainant’s messages in May 2024 but ceased communication shortly thereafter. The Complainant acknowledged sending a few additional messages over the following months (the last in October 2024), but stated that once X stopped replying, he ceased all further contact. He emphasised that his messages were friendly and non-sexual in nature.

The Complainant also addressed an incident involving a dating app. He claimed that it was X who initiated contact on the app and sent an explicit image, after which X blocked him upon realising his identity. The Complainant denied any attempt to solicit X and maintained that the interaction on the app had been initiated by X.

A further allegation concerned the Complainant contacting X’s partner, referred to here as Y, via Facebook. The Complainant confirmed that he had sent a message to Y using his longstanding personal Facebook account after seeing her profile in an art-related group. He stated that he had a genuine interest in commissioning artwork from her. Although he mentioned working with her husband, X, during their exchange, he maintained that his approach had been professional and driven solely by artistic interest. After receiving no response to his Facebook messages, he later contacted Y by phone using X’s number. He claimed this call was solely to follow up on the artwork inquiry and reiterated that there was no inappropriate content or intent involved.

The Complainant strongly denied ever operating or using a Facebook account under any name other than his own, including the account allegedly used to contact Y as referenced in the dismissal letter.

In addition to denying the substance of the allegations, the Complainant raised several procedural concerns:

·        He stated that his access to his corporate email account had been removed before the dismissal process concluded, making it difficult for him to access relevant documentation and engage fully with the process.

·        He contended that he was given only one week’s notice before the final hearing, which limited his ability to prepare and submit a comprehensive response.

·        He believed that the outcome of the dismissal had been predetermined, citing the immediate confiscation of his work equipment and badge at the time of dismissal.

The Complainant also noted that, although he had received an official promotion in April 2024, he had been performing the duties of the promoted role since December 2023. He considered this relevant to his work ethic and commitment to the company, although much of the supporting evidence was lost when he lost access to company systems.

While the Complainant accepted that his repeated messages to X might have warranted an informal intervention or warning, he did not believe the circumstances justified the most severe disciplinary outcome. He further stated that there was no evidence of harassment or stalking, and that any interaction with Y was unrelated to the initial complaint and stemmed solely from artistic interest.

The Respondent stated that the sequence of events began on 21 October 2024, when X submitted a formal complaint via the Ethics and Compliance Hotline. The subject of the complaint was “Sexual Harassment – Staring / Stalking, Workplace Respect – Unprofessional Behaviour,” with allegations made against the Complainant concerning his conduct toward both X and X’s partner (hereinafter referred to as Y).

X alleged that the Complainant had been engaging in stalking, defamation, and sexual harassment via various social media platforms since May 2024. A specific incident was cited on 12 October 2024, when it was alleged that the Complainant contacted Y on Facebook and falsely accused X of attempting to solicit him sexually. Documentary evidence supporting the complaint was submitted.

The Respondent initiated a fact-finding investigation, appointing an investigator from the Corporate Investigations team, supported by a senior HR executive. X was interviewed on 30 October 2024, and Y on 8 November 2024. On 14 November, the Complainant was invited to attend an investigation meeting, which took place the following day. During that meeting, the Complainant counter-alleged that X had sent him inappropriate messages. A follow-up meeting was scheduled for 20 November 2024 to review these claims. The Complainant was also asked via email to provide any evidence in support of his version of events.

The investigation culminated in a report dated 25 November 2024 (“the TT Report”). The report concluded that the Complainant had breached the Respondent’s Code of Ethics and its Global Workplace Misconduct and Remediation Policy. It was determined that he persistently contacted X and Y via Facebook, WhatsApp, and phone calls, even after being blocked. The report found that while X had not explicitly told the Complainant to stop contacting him, the act of blocking him should have been interpreted as a clear signal to cease communication. The report was submitted to HR for review and to determine next steps.

Subsequently, the Complainant was invited on 29 November 2024 to attend a disciplinary hearing scheduled for 3 December 2024. He received the TT Report along with all supporting documentation from both parties. The Complainant was suspended on full pay pending the hearing. The disciplinary meeting was chaired by a senior project manager (hereinafter referred to as Z) with HR support present. The Complainant was informed that the hearing could result in sanctions, including dismissal, and was provided with the opportunity to bring a representative.

At the hearing held on 3 December 2024, Z reviewed the allegations with the Complainant, who reiterated his denial of wrongdoing. The Complainant stated that he had only met X twice in the office, maintained that his communications were not meant to be harassing, and claimed he required explicit verbal instruction to stop contact before he would consider it harassment. He also alleged that X had previously sent him explicit messages through a dating app and claimed that he contacted Y regarding a business transaction involving artwork, denying any malicious intent or that he had sent the controversial Facebook message to Y.

A second disciplinary hearing was held on 4 December 2024. Again, the allegations were presented to the Complainant, and a new piece of evidence was discussed which the Complainant claimed not to have reviewed, though it had previously been sent to him. The Complainant declined a third hearing offered by the Respondent to allow more time to review the material.

On 5 December 2024, Z issued a termination letter, confirming the Complainant’s dismissal. Z found that the Complainant had indeed engaged in conduct amounting to stalking and sexual harassment and that this behaviour constituted gross misconduct. The decision was based on the TT Report, documentary evidence including WhatsApp and Facebook communications, and the Complainant’s responses during disciplinary meetings. The letter noted that while the Complainant maintained that he required explicit instruction to stop, harassment is defined by the impact on the recipient rather than the perpetrator’s intent. Persistent, unwelcome communication constituted harassment regardless of verbal warning.

The Complainant appealed the dismissal on 6 December 2024, citing insufficient evidence and disputing the characterisation of his conduct. The appeal was assigned to an independent Appeal Officer, who scheduled a hearing for 12 December 2024. The Complainant was given the opportunity to submit further evidence and was again invited to be accompanied at the hearing. During the hearing, the Complainant chose not to call witnesses but was permitted to expand his appeal grounds.

On 16 December 2024, the Appeal Officer upheld the original termination. He concluded that the evidence – including social media messages and witness testimony – was sufficient to support the findings of harassment and misconduct. The decision emphasised that the dismissal was not based solely on a single Facebook message but a broader pattern of conduct deemed to have created an offensive and inappropriate environment. The appeal response reiterated that the Respondent’s policies permit summary dismissal for breaches of the Code of Ethics and workplace harassment guidelines.

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

Section 6(4) of the UD Act states:

“Without prejudice to the generality of subsection (1) of this section 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 one or more of the following:

(a) the capability, competence or qualification of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Section 6(6) of the UD Act states:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.”

Section 6(7) of the UD Act states:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had [….]

(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) of the UD Act refers to such dismissal procedure as was furnished to the employee upon entering the contract of employment.

Section 7(2) of the UD Act provides that an Adjudication Officer may consider “compliance or failure to comply by the employer in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister”.

The function of the Adjudication Officer is to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this is the standard by which the Respondent’s actions must be considered. Specifically, in this case, I must establish in the first instance whether fair procedures were applied by the Respondent and secondly whether there were substantial grounds behind the decision to dismiss the Complainant.

Fair Procedures:

The purpose of a disciplinary procedure is to afford an employer the opportunity to outline concerns regarding an employee’s conduct or performance, while simultaneously giving the employee a fair chance to respond to the allegations and make representations as to why they should not be disciplined or dismissed. This principle is enshrined in S.I. No. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (the “Code of Practice on Grievance and Disciplinary Procedures”).

The Complainant alleged that the investigation process was biased, flawed, and unfair. He noted, firstly, that his access to his corporate email account was removed before the disciplinary process had concluded, which he claimed hindered his ability to access relevant documentation and effectively participate in the proceedings. He also stated that he was given only one week’s notice before the final hearing, limiting his ability to prepare and present a full response.

However, I noted that the Complainant did not request access to any specific documentation he claimed was essential, nor did he invoke the grievance procedure to raise concerns about the short notice period. This is despite being invited to do so in an email sent to him following the disciplinary hearing on 3 December 2024, which stated: “As discussed, I am also sending you over a copy of the grievance policy should you wish to make a complaint regarding the issues you raised in the call.”

The Complainant further contended that the decision to dismiss him was predetermined, citing the immediate confiscation of his work equipment and badge upon dismissal as evidence. However, I am of the view that the removal of an employee’s access to company systems at the point of dismissal is a standard and reasonable security measure aimed at protecting the organization’s data, operations, and confidentiality.

Notwithstanding the above, I did have some concerns regarding the expediency with which the Disciplinary Officer arrived at the decision to dismiss. The disciplinary hearing concluded on 4 December 2024, with the hearing notes provided to the Complainant at 12:41 p.m. on the same day. An invitation to attend the outcome meeting was issued the following morning at 10:17 a.m. While the timeframe was undeniably very tight, and it is unfortunate that the Disciplinary Officer was not available to give evidence and confirm that full and proper consideration had been afforded to the evidence and the Complainant’s submissions, I am nonetheless satisfied that the decision was reached within the context of a structured and procedurally sound disciplinary process, following a formal investigation. The evidence—including the Complainant’s own representations—was reviewed, and the Complainant was afforded an opportunity to respond during two disciplinary hearings held on 3 and 4 December 2024. Although the decision was delivered very quickly, I find no credible evidence to suggest that the outcome was predetermined or that the process lacked a reasoned and fair assessment of the relevant material.

I further note that the Complainant was afforded the right of appeal, and that the Appeals Officer provided cogent and persuasive reasons in support of his considered decision to uphold the dismissal. The appeal outcome was communicated to the Complainant four days after the appeal hearing.

In conclusion, and having considered all of the foregoing, I am satisfied that, on balance, the procedures followed by the Respondent in relation to the Complainant’s dismissal—including investigation meetings, two disciplinary hearings, and an appeal—were conducted in accordance with fair procedures and in compliance with the Code of Practice on Grievance and Disciplinary Procedures. Accordingly, I find that fair procedures were followed.

The Reasonableness of the decision to dismiss

I must now consider whether there were substantial grounds justifying the dismissal. In terms of this aspect, it is well established case law that it is the role of the Adjudication Officer to consider the reasonableness of the Respondent’s decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented. This is set out by the Employment Appeals Tribunal (EAT) in the case of Looney and Co Ltd v Looney UD 843/1984:

“It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

In assessing whether it was reasonable for the Respondent to dismiss the Complainant, I have regard firstly to the definition of harassment under Irish employment law and note that under the Employment Equality Acts 1998–2015, harassment is defined as: “Any form of unwanted conduct related to any of the discriminatory grounds, which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”

This is consistent with the definition set out in the Respondent’s Harassment, Discrimination & Workplace Bullying Prevention Policy, which states that “Harassment, including Sexual Harassment, is defined as unwanted conduct based on a Legally Protected Characteristic that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment.” It is clear from both definitions that the focus is on the effect of the behaviour on the recipient, rather than the intention of the person engaging in the conduct.

Having established the applicable definitions and having reviewed the investigation report that was used as the basis to dismiss the Complainant, I note that X described receiving messages from the Complainant which he found inappropriate, uncomfortable, and unprofessional. Despite efforts by X to disengage—through blocking the Complainant and refusing to respond—these messages continued. The messages were described as persistent, aggressive, and intimidating.

I also note that the Complainant alleged that X had initially contacted him on a dating app. However, there was no supporting evidence presented during the investigation or the disciplinary hearing to confirm this. The Respondent was reasonably entitled to note that, even if such initial contact had occurred, X did not know the Complainant’s identity at that time and took clear steps to disengage once he became aware of who the Complainant was.

The Respondent reasonably concluded that X’s actions—blocking the Complainant, not responding to messages, and ultimately reporting the matter—indicated clearly that the contact was unwanted. Although X did not explicitly ask the Complainant to stop contacting him, the Respondent was reasonably entitled to interpret the blocking and withdrawal as an implicit refusal of further engagement.

It was also reasonable for the Respondent to rely on the principle, set out above, that harassment is assessed by the effect on the recipient. Accordingly, the Complainant’s stated intention not to cause harm did not outweigh X’s perception of the behaviour as distressing and intimidating.

I also note that the Respondent highlighted the fact that the Complainant subsequently contacted X’s partner, Y, who also took steps to block him. Following this, the Complainant called X’s phone number and asked to speak to Y. This was reasonably viewed by the Respondent as an escalation of behaviour, particularly in light of the ongoing efforts by both X and his partner to prevent further contact.

X ultimately formally reported the matter via the Ethics and Compliance helpline and participated in interviews during the investigation. Based on these accounts, the Respondent formed the view that X genuinely felt harassed and that the conduct had impacted his sense of dignity.

Given this evidence, it was reasonable for the Respondent to conclude that the Complainant’s actions amounted to harassment, as defined both in the Employment Equality Acts and the Respondent’s Harassment, Discrimination & Workplace Bullying Prevention Policy.

The Respondent also considered an allegation that, on 12 October 2024, the Complainant sent a Facebook message to X’s partner (Y), falsely accusing X of soliciting him sexually. The Complainant denied responsibility for this message, claiming that it originated from a different Facebook account and was not sent by him. However, the Respondent noted that the message contained specific information about the Complainant’s earlier interactions with X — including the dating app and the fact that he had been blocked. The Complainant acknowledged that only one friend was aware of these details, and this friend denied sending the message. Given the context, I find that it was reasonable for the Respondent to conclude that it was more likely than not that the Complainant sent the message to Y himself.

The Respondent further reasonably formed the view that the message had been sent with the apparent intention of damaging X’s personal relationship with Y and causing him reputational harm. On that basis, it was open to the Respondent to characterise the message as both defamatory and malicious. This conclusion, taken together with the earlier conduct, led the Respondent to determine that the Complainant’s behaviour represented a serious breach of workplace standards.

In light of the above, I find that it was reasonable for the Respondent to conclude that the Complainant’s conduct toward X constituted harassment and that it was serious enough to warrant dismissal. The Respondent was entitled to view the behaviour as persistent, intrusive, and distressing to the recipient, even if the Complainant did not subjectively intend harm.

The decision to dismiss the Complainant was taken after a fair process and was based on evidence that the Respondent reasonably found credible. Given the seriousness of the behaviour and its impact, it was open to the Respondent to conclude that dismissal was a proportionate and appropriate response.

Having considered all of the foregoing, I find that the Respondent’s decision to dismiss the Complainant was reasonable and fair in all the circumstances.