Complainant

Respondent

Anonymised Parties

The Complainant

The Respondent

Representatives

Mr. Dermot Casserly DWF (Ireland) LLP, instructing Ms. Cathy McGrady, BL.

Ms. Aisling Parkinson, Lewis Silkin Ireland LLP, instructing Mr. Desmond Ryan BL.

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-00056309-001

25/04/2023

The Complainant was employed in the Respondent’s Sales Department from 19 July 2021 until 10 November 2022. The Complainant earned approximately €6,620 gross per month and worked approximately 40 hours per week. The Respondent provides, inter alia, recruitment services.

The Complainant was dismissed for gross misconduct on 10 November 2022, following an investigation and disciplinary process. The Respondent upheld a complaint made against the Complainant by his colleague, A.A. The complaint concerned two incidents, outside of the workplace, involving allegations of sexual harassment and sexual assault. In her complaint dated 18 October 2022, A.A. stated, inter alia:

·             On 15 September 2022, the Complainant “got really clingy with [her] and started hugging [her] or touching [her] face”; and

·             On 24 September 2022, A.A. woke to find the Complainant’s “hand under [her] underwear and touching [her] intimate private parts. [She is] not sure how long this was going on because [she] was sleeping. The moment [she] woke up was the moment when he grabbed [her] hand and pulled [her] in his direction. [She] believes that he wanted [her] to touch him but [she] woke up and asked [the Complainant] to stop.”

The Respondent upheld the first allegation, finding that sexual harassment occurred on 15 September 2022. The Respondent upheld the second allegation, finding that “on the balance of probability given the facts described above, we find it is likely misconduct occurred” on 24 September 2022.

The Respondent submits that the investigation and disciplinary process regarding the sexual harassment and sexual assault allegations were conducted in accordance with its Anti-Bullying, Harassment and Discrimination Policy; its Disciplinary Policy; and fair procedures. The Respondent further submits that the decision to terminate the Complainant’s employment was within the “band of reasonableness”. The Respondent denies the Complainant’s allegations in full.

The Complainant denies that he accepted that the incident as alleged on 15 September 2022 occurred. The Complainant denies that the incident on 24 September 2022 occurred. The Complainant submits, inter alia, that the decisions reached by the Respondent were prejudiced, biased and in breach of his rights to fair procedures. The Complainant submits that he was unfairly dismissed in violation of the Unfair Dismissals Act 1977 – 2015, as amended. He is seeking approximately €118,000, plus a loss of shares, plus ongoing loss.

The Respondent provided detailed written and oral submissions.

The Respondent submits that there was a gross violation of its policies and values. The Respondent submits that the matter involved two employees and that there was a temporal connection with the Respondent, based on the facts. The Respondent submits that it had an obligation to investigate the matter. The Respondent submits that the allegations were put to the Complainant who had a full and fair opportunity to respond. The Respondent submits that the Complainant did not appeal. The Respondent submits that the dismissal was fair both substantively and procedurally.

Background:

On 7 October 2022, a Senior Director was approached by two employees who informed him that a female colleague told them that she had been sexually harassed by the Complainant. The Senior Director informed the Senior HR Business Partner with responsibility for the DACH market (the “DACH Senior HR Business Partner”), by email that same day. The DACH Senior HR Business Partner then invited the two employees to Investigation Meetings which took place on 10 October 2022.

On 11 October 2022, A.A. contacted the DACH Senior HR Business Partner, seeking a confidential meeting. She reported the two incidents which occurred at social gatherings in two different employees’ homes on 15 and 24 September 2022. A.A. stated that on 15 September 2002, the Complainant became “clingy” and was hugging and touching her face. She also stated that on 24 September she fell asleep on a couch and woke to the find the Complainant’s hand touching her under her underwear.

On 18 October 2022, A.A. made a formal written complaint.

On 19 October 2022, a Senior HR Business Partner (the “Senior HR Business Partner”) met with the Complainant who was informed that a serious allegation had been made against him under the Respondent’s Anti-Bullying, Harassment & Discrimination Policy and that he was being suspended on full pay to allow the Respondent to investigate the matter. Following the meeting, the Complainant was sent an email attaching a copy of the Suspension Letter dated 19 October 2022. That same day, the Senior HR Business Partner also informed the Complainant’s direct line manager.

On 19 October 2022, R1 and the Senior HR Business Partner met with A.A. to discuss her formal complaint. On 20 October 2022, R1 and the Senior HR Business Partner then met with four further witnesses (B.B., C.C., D.D. and E.E.).

The Investigation Meeting:

On 21 October 2022, the Complainant was invited to attend an Investigation Meeting on 24 October 2022. The same email invite attached A.A.’s complaint; the notes of the Investigation Meetings with A.A. and the four witnesses; and a copy of the Respondent’s Anti-Bullying, Harassment & Discrimination Policy. The Complainant was informed of his right to be accompanied by a fellow employee and of the Employee Assistance Programme.

On 24 October 2022, the Complainant attended the Investigation Meeting. He stated, inter alia, that on 15 September 2022, he, along with others had taken ecstasy and that he could not remember all that had occurred. He denied the allegations relating to the incident dated 24 September 2022.

On 24 October 2022, A.A. attended a second Investigation Meeting. The drugtaking referred to by the Complainant was put to her and she accepted that there were drugs present on the night of 15 September 2022 and that she had consumed some ecstasy. She denied drugs were taken on 24 September 2022. That same date, C.C. also attended a second Investigation Meeting and said that he did not see anyone taking drugs on 15 September 2022.

On 25 October 2022, a second Investigation Meeting was held with B.B. who said that he saw the Complainant touch A.A. on 10 September 2022 and that he had not witnessed any drugtaking on 10 September 2022 or on 24 September 2022. On 25 October 2022, A.A. was invited to a third Investigation Meeting. She outlined that she did not think that anything occurred on 10 September 2022 as described by B.B..

On 25 October 2022, the Complainant outlined some amendments concerning the notes of his Investigation Meeting dated 24 October 2022, which were accepted.

The Investigation Report:

On 26 October 2022, the Complainant was emailed the Investigation Report dated 25 October 2022, provided by R1 and the Senior HR Business Partner in which they concluded that the Complainant did sexually harass A.A. on 15 September 2022 and that on the balance of probabilities, found that it was likely that misconduct occurred on 24 September 2022. The covering email outlined the Complainant’s right to appeal. The Complainant responded by email that same day stating that he stood by “things like drug use or alleged harassment on the 15th and he referred to his “apology for [his] unknowing harassment on September 15th”. However, he took issue with a number of matters and he wanted to file a complaint against A.A. and the witnesses. On 27 October 2022, the Complainant confirmed that this was his appeal.

The Appeal Meeting:

On 1 November 2022, a second Senior HR Business Partner (the “Second Senior HR Business Partner”) met with the Complainant for his Appeal Meeting. The Complainant stated that he felt discriminated against and bullied during the investigation. The Respondent submitted that the Complainant also confirmed that he had misunderstood the appeal process and that he was not bringing an appeal. He said that he wanted to raise a grievance after the process completed.

The Disciplinary Hearing:

On 3 November 2022, the Complainant was invited to a formal Disciplinary Hearing by R2, HR. The Disciplinary Hearing took place on 4 November 2022. As regards the allegation dated 15 September 2022, the Complainant stated that he had no recollection of the incident; that it was the first occasion he had taken ecstasy; and that it was not representative of him as a person. The Respondent submitted that the Complainant agreed that he believed that the incident on 15 September 2022 occurred. The Respondent submitted that the Complainant denied the allegation of sexual harassment on 24 September 2022. On 8 November 2022, the Complainant confirmed the accuracy of the Disciplinary Hearing notes. That same date, he was invited to a formal disciplinary outcome meeting.

On 10 November 2022, the Complainant was informed during a meeting of the outcome of the Disciplinary Hearing. He was also emailed the Termination of Employment Letter on the same date. The Termination of Employment Letter stated that the Respondent found that given that the incident on 15 September 2022 had occurred (which the Respondent stated had been admitted by the Complainant), “on the balance of probability”, the incident on 24 September 2022 very likely took place. The Termination of Employment Letter outlined that the Complainant’s actions amounted to gross misconduct and that while lesser sanctions had been considered, the Respondent had decided to terminate the Complainant’s employment, effective immediately. Finally, the same letter outlined the appeal procedure.

On 10 November 2022, the Complainant responded by email, asking where to return his IT equipment. He did not appeal the disciplinary outcome.

The Respondent refers to, inter alia: the Unfair Dismissals Act 1977 – 2015, as amended; An Bord Banistíochta, GaelscoilMoshíológ v. The Labour Court [2024] IESC 38; Frizelle v. New Ross Credit Union Ltd [1997] IEHC 137; Bank of Ireland v. Reilly [2015] IEHC 241; O’Riordan v. Great Southern Hotels UD 1469/2003; Crowe v. An Post UD 1153/2014; Buttimer v. Oak Fuel Supermarket Ltd. [2023] IEHC 126; Mooney v. An Post [1998] 4 I.R. 288; McKelvey v.Iarnród Éireann [2019] IESC 79; O’ Donnell v. Tipperary (South Riding) County Council [2005] 2 I.R. 483; Campbell v. Irish Prison Service [2023] IEHC 706; and Denis Walsh v. Avoca Handweavers Limited, ADJ-00045564.

Witness Evidence:

R1 – Evidence:

R1 outlined that she works as a Senior Director in Sales for the Respondent and that she has held the role for 9.5 years.

R1 outlined that she completed internal investigations in a previous role with a different company and that she understood how they should be conducted. She stated that she did not know the Complainant prior to the investigation, which is in accordance with the Respondent’s policy and procedure.

R1 referred to the Respondent’s Anti-Bullying, Harassment & Discrimination Policy. She stated that the Respondent takes policies of inclusion and belonging very seriously. She stated that harassment of any kind is not acceptable. She said that managers have regular training to ensure that these policies are known to all.

She referred to the “scope” of the Respondent’s Anti-Bullying, Harassment & Discrimination Policy, which states inter alia: “This policy applies to employees both in the workplace and at work-associated events such as meetings, conferences and work-related social occasions, whether on [the Respondent’s] premises or off-site and whether during or outside of work hours. This policy may alsoapply to content shared on social media (e.g. Whatsapp, Facebook) or on internal platforms (e.g. Intranet, Slack) and events with [the Respondent’s employees] outside of the [Respondent]”

R1 referred to “Sexual Harassment” in the Respondent’s Anti-Bullying, Harassment & Discrimination Policy, which states inter alia:

“Workplace sexual harassment means unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile degrading, humiliating or offensive environment for the person.

Sexual harassment may include sexual advances or requests for sexual favours or other physical or verbal conduct of a sexual nature […]

While it is not possible to list all of the circumstances which would constitute sexual harassment, the following are some examples:

(1)   Unwelcome sexual advances – whether they involve physical touching or not”.

R1 said that the definition covered a situation where a person felt unsafe in an environment.

She said that the formal complaint procedure, outlined in the Respondent’s Anti-Bullying, Harassment & Discrimination Policy is a lengthy procedure.

R1 said that the formal procedure was applied to the Complainant.

R1 said that the investigation was conducted over a three- or four- day period and that she had no knowledge of the individuals involved. She said that the Complainant was on notice of A.A.’s written complaint dated 18 October 2022, which made clear what the investigation would be about. She said that there were a number of Investigation Meetings with witnesses; there was an Investigation Meeting with the Complainant in which he had the right to be accompanied; and that the Complainant was informed of the outcome of the investigation in writing.

R1 said that on 19 October 2022, the Complainant was placed on temporary paid suspension in light of the seriousness of the allegations. She said that this was not a punishment and that it was to assist the independent investigation.

R1 said that they needed to meet with A.A. first to understand the allegations. She referred to the Investigation Meeting with A.A. on 19 October 2022. R1 said that A.A. had stated that she woke up on the couch to find the Complainant’s hand in her pants. A.A. said that she told the Complainant to stop and that he got angry. R1 said that this would constitute sexual harassment as per the Respondent’s Anti-Bullying, Harassment & Discrimination Policy.

R1 said that witnesses were invited to Investigation Meetings. She said that every witness was told that the matter was confidential and that they were not to discuss it with each other or outside the investigation, which would be a disciplinary matter. She referred to the relevant Investigation Meeting email invites.

R1 said that the Complainant was also invited to an Investigation Meeting on 24 October 2022. He was provided with A.A.’s complaint dated 18 October 2022; and the Investigation Meeting minutes concerning A.A. and four witnesses. She said that they wanted the Complainant to be aware of the allegations and to have all of the information regarding the investigation so that he knew who had been met with and so that he could have the opportunity to respond. She said that he was also informed that he could be accompanied by “a fellow employee” but that he did not avail of this right.

R1 said that the Investigation Meeting with the Complainant was conducted via “Zoom”. She stated that the Complainant fully understood what was discussed and that he could respond to all questions. She said that he did not seek to slow the meeting down, nor did he ask for questions to be reiterated. She said that the meeting commenced at 1.30pm and was approximately one hour long. She said that the Complainant was given every opportunity to talk about what happened and to present his perspective. She said that they needed to be clear on his position regarding the allegations. She said that it appeared to her that the Complainant was “aloof” throughout the Investigation Meeting. She said that there was a note-taker at the Investigation Meeting and that the minutes were subsequently shared with the Complainant.

She said that during the investigation Meeting dated 24 October 2022, the Complainant referred to drugtaking. She said that as a result, she and the Senior HR Business Partner decided to meet with A.A. and the other witnesses to ask them about the drugtaking allegations. She said the drugtaking had no bearing on the complaint under investigation as they were investigating allegations of sexual harassment, which is what they focussed on. She also said that they took into account that substances were present. She said that as investigators, they needed to establish the facts and so returned to A.A. and to the other witnesses for follow-up meetings. She said that they also met with A.A. one further time in order to confirm the correct dates of the incidents.

R1 referred to the Investigation Report dated 25 October 2022 and the findings that were made. She said that the allegation of sexual harassment on 15 September 2022 was upheld. She said that this finding was reached on the basis of interviews with witnesses, who had seen the events which occurred; and on the basis that the Complainant accepted that he had touched A.A. as she had described. R1 stated that the follow-up Investigation Meetings regarding the drugtaking did not have a bearing on this finding as the Complainant had confirmed that he had acted as outlined by A.A.. She also stated that she was investigating the sexual harassment complaint and not drugtaking.

R1 said that the allegation of sexual assault on 24 September 2022 was also upheld on the balance of probabilities. She said that they had considered all of the facts before them and determined that “misconduct likely occurred”. She said that they were not certain that it had occurred but on the basis of the evidence, they were satisfied that it had likely occurred.

She said that following the completion of the Investigation Report dated 25 October 2022, she had no further involvement in this matter.

She said that the Investigation Report dated 25 October 2022 was then emailed to the Complainant on 26 October 2022. The email also outlined his right of appeal. She stated that she did not know anything about any confusion regarding the appeal.

Cross-Examination:

R1 stated that they decided that the allegation concerning the incident on 15 September 2022 was considered sexual harassment when they received A.A.’s complaint dated 18 October 2022 and when they considered the Respondent’s Anti-Bullying, Harassment & Discrimination Policy. She referred to the Complainant “being clingy, huggy and touching [A.A.’s] face”. She referred to A.A. stating that she felt uncomfortable and asking the Complainant to stop. She said that this was construed as sexual harassment.

R1 said that she cannot comment on how widely the allegations were being discussed and that she did not know the nature of the discussions.

R1 said that she did not interview anyone whose name did not come up during the Investigation Meeting with A.A. and / or the Complainant.

R1 was referred to the initial interviews conducted with A.A. and the witnesses between 10 October 2022 and 11 October 2022. R1 said that the complaint was escalated to her and the Senior HR Business Partner for a formal investigation. She stated that they started “from scratch” and did not use anyone else’s findings. She said that the initial interviews did not form part of their investigation. She said that the Complainant was provided with the documents that they had used during the formal investigation. It was put to R1 that the Senior HR Business Partner was already involved in the complaint, before she and R1 commenced the investigation.

R1 stated that the Complainant was told in the email dated 21 October 2022, that he could be accompanied to the Investigation Meeting by a fellow employee. She said that he was also provided with a copy of the Respondent’s Anti-Bullying, Harassment & Discrimination Policy which stated that he could be accompanied by a trade union representative or a colleague. She said that the Complainant was not informed that he could be accompanied by a trade union representative in the email. She said that she was not aware that the Complainant was in Germany at the time. She confirmed that the email both states that he could only be accompanied by a colleague and that he should not discuss the matter with colleagues otherwise, there could be disciplinary action. R1 said that the instruction, not to discuss the matter, was given to everyone. She said that she was not aware that employees were openly discussing the matter.

R1 stated that they did everything that they could to ensure that A.A. and the Complainant were protected throughout the process.

R1 stated that the terms of reference for the investigation was the Respondent’s Anti-Bullying, Harassment & Discrimination Policy.

R1 said that she could not comment on why A.A. did not make a complaint to the Gardaí.

R1 stated that she believed that A.A. was subjected to sexual harassment on 15 September 2022, based on her complaint. R1 referred to unwanted verbal and nonverbal contact with the purpose of affecting a person’s dignity. She said that A.A. said that the Complainant made unwanted advances and that she asked the Complainant to stop. R1 said that as they went through the investigation, it became apparent that there were two allegations. It was put to R1 that A.A. had indicated that the “main problem” was the incident on 24 September 2022. R1 stated that as the incident on 15 September 2022 was reported to the Respondent, the Respondent had a duty of care to investigate it.

R1 confirmed that A.A. had not told her during her first Investigation Meeting that she had taken ecstasy at the party on 15 September 2022.

R1 denied that in asking A.A. what she “want[ed] the outcome of this to be” that she showed bias. She said that, in asking this question, she was trying to understand A.A.’s frame of mind.

R1 denied that witnesses were told that A.A. would get a copy of the Investigation Meeting notes so that they would tailor their responses. She said that a copy of the Investigation Meeting notes was provided to A.A. and to the Complainant.

R1 said that B.B.’s evidence was excluded as he had been confused as regards the dates of the incidents. R1 also stated that she did not take C.C.’s previous interview into account.

R1 was asked what was meant by telling the Complainant that the decision to suspend him was “without prejudice”. She stated that no determination had yet been made regarding the allegations. She stated that it was “standard practice” to remove access to tools and to the office.

R1 stated that it was clear from A.A.’s complaint and the documents that the Complainant was provided with, what the allegations against the Complainant were. R1 did not accept that the Complainant had to guess what was under investigation. R1 accepted that it is not stated anywhere that the Complainant was being investigated for sexual harassment on 15 September 2022.

R1 stated that the Complainant was brought through the allegations against him during the Investigation Meeting on 24 October 2022. She stated that he was told that they would give him all of the time that he needed. She said that they had sent him the documentation on 21 October 2022. She said that they were surprised when he said that he had received the documentation two hours in advance of the meeting. She did not accept that the full extent of the allegations was not put to the Complainant.

R1 stated that the Complainant did not struggle with English and he seemed “very fluent” in how he answered all of the questions. She said they asked him if he fully understood what the complaint was about and he said yes.

It was put to R1 that the Complainant did not make any admission regarding sexual harassment. R1 stated that the Complainant agreed that he had been touching A.A..

It was put to R1 that she did not ask the Complainant if it was “sexual” and that “inappropriate touching” is not sexual harassment. R1 did not accept this and stated that if someone asks you to stop, it is an unwanted sexual advance if they continue to do so.

It was put to R1 that the Complainant’s memory was “very clear” and that A.A. had taken drugs and that the Complainant did not do what he was accused of on 24 September 2022. R1 stated that the Complainant was “quite passive” during the Investigation Meeting. She denied that he was “very clear”.

R1 denied that bias was shown towards A.A., particularly as regards the drugtaking allegations. R1 said that they acknowledged A.A.’s apology for omitting information concerning the drugtaking and that they were not condoning her behaviour.

R1 said that they were investigating the complaints at hand. She stated that she did not think it was relevant that the two parties were taking ecstasy. She stated that they were not investigating the drugs issue. R1 stated that drugs were taken on the 15 September 2022 but that as far as she could recollect, they were not taken on 24 September 2022. She said that they did “balance everything” when drawing up the Investigation Report.

R1 was asked if C.C. was subjected to an investigation for supplying drugs to his colleagues. R1 said that this was outside the investigation.

R1 stated that they interviewed everyone who was present when the events complained of, occurred.

R1 stated that it did not impact her consideration that A.A. had decided not to report the matter to the Gardaí. She said that it was a matter for A.A..

R1 confirmed that the notes of the additional Investigation Meetings, held after the Investigation Meeting with the Complainant on 24 October 2022, were not sent to the Complainant before the Investigation Report dated 25 October 2022 was finalised.

R1 accepted that the Complainant had a lot to say about the final Investigation Meetings and that he did not have the opportunity to address them before the Investigation Report was issued.

R1 confirmed that points were clarified with other witnesses but not with the Complainant.

R1 accepted that she had not mentioned in the Investigation Report that A.A. had accepted the Complainant’s apology; and that the “main point” for A.A. was the incident that occurred on 24 September 2022. R1 stated that just because the Complainant had apologised, it does not mean that it did not happen.

R1 denied that she disregarded evidence in favour of the Complainant in her findings. R1 stated that when completing the Investigation Report dated 25 October 2022, they assessed the evidence based on all of the information obtained throughout the interviews.

It was put to R1 that the allegation concerning the incident on 24 September 2022 was one of sexual assault and that it was replaced with a “vague allegation of misconduct”. R1 stated that it was found that, on the balance of probabilities, misconduct had occurred.

R1 stated that they had acted in line with the Respondent’s Anti-Bullying, Harassment & Discrimination Policy. She said that the Complainant could exercise his right to appeal to a further investigator.

R1 said that she was only involved in the matter from 19 October 2022 until 25 October 2022 and that she had no involvement in the appeal.

It was put to R1 that the process was rushed. R1 said that they wanted to get the information out as soon as possible. R1 said that they met with witnesses and had note-takers. R1 did not accept that four days should have been given to the Complainant to consider the documentation, not to cover ten investigation meetings.

R2 – Evidence:

R2 outlined that she works in the Respondent’s HR department in the U.K. and that she has worked for the Respondent for three years. She has been in HR roles for over ten years and she has regularly carried out investigations and dealt with disciplinary matters throughout her career.

R2 referred to the Respondent’s Disciplinary Procedure. She stated that if there is a complaint, an investigation panel is established to establish the facts in terms of the allegations.

R2 stated that A.A.’s complaint dated 18 October 2022 was the terms of reference. She said that this is consistent with the Respondent’s practice.

R2 stated that suspending an employee on pay is taken as a precautionary measure to allow for a thorough and fair investigation. She said that it is not a decision which is taken lightly. She stated that it is not a disciplinary measure.

R2 stated that once the investigation is completed, the disciplinary hearing panel determines whether the allegations are upheld and the appropriate sanction. She stated that at a disciplinary hearing, it is critical that the person can share mitigating facts before a decision is reached. She stated that at the Disciplinary Hearing on 4 November 2022, the Complainant had the opportunity to address any findings, but that the investigation findings could not be overturned.

R2 stated that the Complainant had a fair and thorough Disciplinary Hearing on 4 November 2022. R2 stated that in advance of the Disciplinary Hearing, she was provided with the same documentation as the Complainant. R2 referred to the meeting email invite which was sent to the Complainant on 3 November 2022. This email outlined that R2 and R3 would attend the Disciplinary Hearing alongside a note-taker and a translator, at the Complainant’s request. The same email referred to the Complainant’s right to be accompanied by another employee. Finally, the email also referred the Complainant to the details of the Employee Assistance Programme.  

R2 referred to the notes of the Disciplinary Hearing. She said that it lasted for an hour and twenty minutes which was longer than usual. She stated that the Complainant never, at any point, expressed difficulty in understanding the meeting and that he did not request to speak in German. R2 stated that the Complainant did not see the need to use the translator, who also did not have to intervene as regards translations. She stated that there was “no significant translation”.

R2 stated that they wanted to create “a safe space” and ensure that the Complainant felt heard. As regards the Complainant’s demeanour, she said that he did not hesitate and that he seemed satisfied to proceed without anyone accompanying him. At the outset of the Disciplinary Hearing, she outlined the allegations against him and the scope of the Disciplinary Hearing.

She stated that the Complainant hesitated as regards the incident dated 15 September 2022. However, she said that he did not dispute that the events on 15 September 2022, as per the findings, had occurred. She believed that his comment “I am nothing as described” concerned more him urinating on the floor rather than the sexual harassment that occurred.

She stated that she asked the Complainant if he believed that the incident on 15 September 2022 happened. She said that his response “Yes, I do believe […]”  indicated to her that he accepted that the incident on 15 September 2022 occurred.

She stated that they asked the Complainant why A.A. would make up the allegation concerning the incident on 24 September 2022, to see if there was anything else that they should consider. She stated that this question did not shift an onus onto the Complainant. She said that they just wanted to fully understand the Complainant’s position. She stated that the Complainant said that he felt “comfortable” at the Disciplinary Hearing and that she believed that the Complainant felt heard.

She stated that on 7 November 2022, the Disciplinary Hearing notes were shared with the Complainant and he was asked to review the same. She said that she did not hear back from him and so she emailed him again on 8 November 2022.

R2 said that following the Disciplinary Hearing, she and R3 had lengthy discussions during which they considered potential outcomes and possible sanctions. She said that they discussed the Complainant’s comments and reviewed the Investigation Report and all statements provided in conjunction with it. They also discussed the severity of the allegations.

She stated that the first allegation concerning the incident on 15 September 2022 was upheld. She said that she and R3 were concerned with the Complainant’s lack of remorse towards A.A.. She stated that he seemed to be more concerned with having urinated on the floor than the allegation of sexual harassment. She also said that the Complainant had confirmed during the Disciplinary Hearing that the incident on 15 September 2022 had occurred. She stated that the incident on 15 September 2022 alone amounted to gross misconduct.

She stated that the second allegation concerning the incident on 24 September 2022 was also upheld. She said that there were disparities between A.A.’s and the Complainant’s accounts, and that they could not be certain that the incident on 24 September 2022 occurred. However, on the balance of probabilities, they were satisfied that it did.

R2 said that there was a discussion regarding drugtaking. However, she said that irrespective of that, the allegations of sexual harassment and sexual assault were very serious.

R2 stated that the Respondent has a zero-tolerance policy regarding sexual harassment and sexual assault.

R2 stated that they did consider lesser sanctions as termination of employment is not taken lightly. She said that they have to maintain “a safe, healthy and inclusive working environment” for employees. She stated that they concluded that trust and confidence in the Complainant as an employee had broken down and that the environment was not safe and healthy for employees.

R2 said that there was a brief Disciplinary Outcome meeting with the Complainant on 10 November 2022, during which they discussed the outcome. After the meeting, R2 sent the Complainant a Termination of Employment Letter.

R2 stated that if there had been an appeal, she would have handed it over to an independent team member.

Cross-Examination:

R2 stated that A.A.’s complaint formed the terms of reference for the investigation. She stated that A.A.’s complaint met the requirements of the Respondent’s Anti-Bullying, Harassment & Discrimination Policy.

R2 stated that the Complainant was given 24 hours’ notice of the Disciplinary Hearing. She said that he did not request more time.

R2 accepted that there is a difference between “being accompanied” and “being represented”.

R2 did not accept that there was no reference to sexual harassment.

R2 did not accept that there was no finding of sexual assault, but a finding of misconduct.

R2 stated that a translation of one or two words was required at the Disciplinary Hearing, but it was not extensive.

R2 accepted that a union representative or a legal representative could have addressed witness account discrepancies and credibility. She also stated that the Complainant did not dispute that the incident on 15 September 2022 had occurred.

R2 was asked if she considered whether A.A. could have been mistaken, given the amount of drugs and alcohol consumed. R2 stated that no, this was not considered as A.A. was “so clear” on the events.

It was put to R2 that the Complainant accepted that he touched A.A.’s hair and urinated on the floor, but did not accept a finding of sexual harassment. R2 disagreed.

R2 stated that any unwanted touching is of a sexual nature.

R2 was asked where she addressed the Complainant that what he did was of a sexual nature. R2 stated that it was considered as part of the investigation.

R2 was asked if she took into account that other people were discussing the matter. R2 said that this was not part of the disciplinary process.

R2 was asked if she had regard to the Complainant’s offer to take a drug test. R2 stated that drugtaking did not affect the severity of the charges. R2 said that she had no concern about the reliability of the witness statements.

R2 stated that she did not have the Complainant’s email dated 26 October 2022 in response to the Investigation Report.

R2 was asked if she took into account that the Complainant’s conduct was inappropriate conduct and not sexual harassment. R2 stated that she did not do so as the allegation was sexual harassment.

R2 was asked if she should have considered witness credibility. R2 stated that she was not concerned with the credibility of the witnesses. She said that she recognised that there was drugtaking and the witnesses spoke to that. She said that they were making a decision regarding the two allegations.

R2 - Recalled:

R2 stated that she had access to all documents in the pack. She said that these were the same documents that were attached to the email invite sent to the Complainant on 3 November 2022 regarding the Disciplinary Hearing.

She stated that the only additional document concerned the order of events.

R2 stated that as part of the HR team, she has access to the shared drive with the confidential documents. The shared folder is extensive and has every employees’ file.

R2 stated that she did see the Complainant’s email dated 26 October 2022 in response to the Investigation Report.

R2 drew a distinction between the documents to which she had access and the documents that she relied on.

Cross-Examination:

R2 stated that the Complainant confirmed at the Disciplinary Hearing that he had access to the documents in the “drive-download folder” attached to the email invite dated 3 November 2022.

R3 – Evidence:

R3 stated that he works in Sales for the Benelux market. He said that he has worked for the Respondent for three years. He said that he has previous experience of a disciplinary hearing.

R3 outlined that his role was to chair the Complainant’s Disciplinary Hearing and that he had no prior connection with the Complainant.

He stated that he received the full pack of documents relating to the disciplinary process.

R3 said that the Disciplinary Hearing was lengthy and that he and R2 took time to ask a lot of questions. R3 said that he spoke German and that he could have conversed with the Complainant in German if necessary, but that it was not necessary. R3 said that he and R2 gave the Complainant the opportunity to respond to everything that was raised.

R3 said that he asked the Complainant about the drugtaking as he wanted to get the “complete story”. He stated that the Complainant was “open and honest” as regards his drug usage.

R3 stated that the Complainant “absolutely” accepted what happened on 15 September 2022.

R3 said that in asking the question as to why A.A. would make up the allegation regarding the 24 September 2022, he wanted to give the Complainant a chance to provide all information and to “make sure everything was on the table”.

R3 said that it was a very detailed investigation. He said that the Disciplinary Hearing overran by 45 minutes. He said that he had two or three meetings with R2 before they reached a conclusion. He said that the level of the sanction was part of their consideration.

Cross-Examination:

R3 stated that drug use was relevant in order to get a “clear view” of the evening. However, he did not think that the drug use affected the severity of the allegations. He said that everyone had taken drugs but only the Complainant had a blackout. He said that they considered the effect of the drugs on everyone.

R3 was asked how he formed a view regarding CC’s credibility. R3 stated that they took everything into account. He stated that he took into account that C.C. had lied.

R3 said that he did not consider interviewing anyone else.

The Complainant provided detailed written and oral submissions.

The Complainant submits that the process leading up to his dismissal was not instigated by A.A., but by two other employees who made an allegation against the Complainant.

The Complainant submits that the legal basis for investigating the matter was “questionable”. The Complainant further submitted that “having decided to investigate a very serious allegation that did not occur in the workplace, there was a high onus on the Respondent to ensure that natural justice and fair procedures were observed”. The Complainant submits that the Respondent failed to do so.

The Complainant submits that there was no sexual harassment on 15 September 2022. The Complainant takes issue with, inter alia, the Respondent’s definition of “sexual harassment”. The Complainant denies that he accepted that the incident as alleged on 15 September 2022 occurred. The Complainant denies that the incident on 24 September 2022 occurred.

The Complainant submits that the investigation process was, inter alia, biased and flawed, favoured A.A. and was in breach of the Respondent’s policies. The Complainant submits that the Disciplinary Hearing proceeded on the basis of flawed findings of sexual harassment and sexual assault and did nothing to mitigate against the procedural unfairness “already visited” upon him. The Complainant submits that the Respondent’s decision was unsupported by evidence.

The Complainant submits that he was unfairly suspended and that he:

1.           Was not provided with specific allegations under investigation;

2.           Was not provided with terms of reference for the investigation;

3.           Was denied the opportunity to properly reply to the allegations against him;

4.           Was denied the opportunity for meetings to be held in German;

5.           Was denied an interpreter;

6.           Was denied the opportunity to cross-examine his accusers or challenge them;

7.           Was denied adequate representation; and

8.           Was denied a fair determination of the issues.

The Complainant refers to, inter alia: the Employment Equality Act 1998, the Equal Treatment Directive 2006/04; Norbit Gnitecki v. Tesco Ireland Limited, UD 1327/2009; Zalewski v. Adjudication Officer and WRC [2021] IESC 24; Roger Martin v. Coca Cola Hbc Ireland Limited, ADJ-00022037; Barry McKelvey v. Iarnród Éireann [2019] IESC 79; Burns v. Governor of Castlerea Prison [2009] 3 IR 682; and RM v. SCH 2023 IEHC 424; RM v. SCH 2023 IEHC 424; Campbell v. Irish Prison Service [2023] IEHC 706; and Murphy SuperValu Rosslare Harbour v. John Devereaux, UDD1967.

Witness Evidence:

The Complainant – Evidence:

The Complainant outlined that his work concerned the DACH market, mainly Germany and Austria. He was based in Dublin from July 2021 until October 2022. From 17 October 2022, he lived in Germany.

He stated that he was suspended on 19 October 2022 following a meeting with the Senior HR Business Partner. He said that it was a shock to him as he was “in the daily routine doing [his] normal tasks”. He said that he was working remotely. He said that his suspension meant that he “was cut out from” the Respondent. He said that he had been told that he would not have access to anything. He also understood that he could not talk to anyone about it. He stated that he did not understand what the issue was.

The Investigation Meeting and the Investigation Report:

The Complainant stated that while the email concerning the Investigation Meeting was dated Friday 21 October 2022, he did not see it until the following Monday, 24 October 2022.

The Complainant stated that he had no one in mind as to who could accompany him to the Investigation Meeting as he could not talk to anyone. He also said that the colleagues who were his friends were in the group making the allegations. He said that the Respondent had told him twice that he could not discuss the matter with his colleagues and it felt important. He referred to the Investigation Meeting notes. He said that it was “only important for him that the translator comes”. He said that he had to use Google translate for the documents. He stated that he agreed for the Investigation Meeting to go ahead.

The Complainant said that he was asked about the incident on 15 September 2022 and that he outlined what had happened. He said that there were four people in C.C.’s apartment and they called a drug-dealer to come to the apartment and they took ecstasy. He said that it was his first time to take ecstasy. He said that he can remember one hour and then he had a blackout. He said that it caused him to “lose control”. He said that he asked A.A. to touch his hair and that she did so. He said he had a girlfriend in Germany. He said that he woke up to C.C. screaming at him as he had urinated on the floor. He said that he subsequently apologised to A.A..

The Complainant said that he was asked about the incident on 24 September 2022 and he outlined that he was with D.D. and E.E.. He said that A.A. and B.B. joined them. He said that there was cocaine and ecstasy there. He said that they went to E.E.’s apartment where they took cocaine.

The Complainant stated that he agreed with the Investigation Meeting notes and that he had suggested some amendments in his email dated 25 October 2022, which were accepted.

He stated that he received an email dated 26 October 2022, which appended the Investigation Report. He stated that he had not previously seen the documents appended to that email.

The Complainant stated that the Investigation Report was a shock. He said that he saw “a lot of lies”. He said that “this crew, together, made a game against him”. He said that he wanted to appeal it as it was not acceptable. He said that he had not been able to talk to anyone about it. He also said that the allegation concerning the incident on 15 September had not been put to him as a sexual harassment incident.

The Appeal Meeting:

The Complainant referred to his email dated 26 October 2022 and confirmed that this was his appeal.

The Complainant said that the Second Senior HR Business Partner held an Appeal Meeting on 1 November 2022. He said that at first, he “felt well about it as he felt that [he] was still an employee”. However, he said that during the meeting, it felt that she could not do anything for him.

He stated that he outlined his appeal in his email dated 26 October 2022. He said that he was not sure about the process. He said that he believed that he was being discriminated against and bullied. He said that he wanted to make a discrimination complaint against A.A. and the witnesses. He stated that it was all “lying”. He also stated that he misunderstood the appeal. He said that he wanted to appeal the “last statement” of the group and the “last statement regarding drugs”. He said that he had asked for a German translator. He said that it was difficult.

The Disciplinary Hearing:

The Complainant stated that he received the email dated 3 November 2022 inviting him to the Disciplinary Hearing, however, he could only open the first two documents that were attached to it. He said that he accepted the email invite and that it went into his calendar. He stated that he could not see the documents in the “drive-download folder”.

He stated that he did not let the Respondent know of a person to accompany him as he did not have anyone to do so. He did not have a representative. He was not a member of a trade union.

He stated that the Disciplinary Hearing went ahead on 4 November 2022. He stated that he did not have access to the “Slack” messaging application.

The Complainant stated that he did not accept that the incident of sexual harassment as alleged on 15 September 2022 had occurred. He stated that this is evidenced by the notes of his interviews. He said that on 24 September 2022, he apologised to A.A. regarding the incident on 15 September 2022 and that A.A. said that “it was ok”. He said that as regards 15 September 2022, the only things that he admitted to were: taking drugs; urinating on the floor; and that A.A. had touched his hair. As regards the other matters, he stated that he could not remember them as outlined by A.A. and C.C..

He stated that he did not appeal the dismissal as he had “lost trust in the process”. He stated that throughout the process, he dealt with nine different people and that he never changed his answers. He said that he “did not feel good due to lack of translator”. He believes that he was not understood. He said that it was difficult to talk in English. He said that he told them that they could talk to every other woman working for the Respondent and that they could do a drugs test on him but they did not.

He said that A.A. changed her story. He said that B.B. was given the opportunity to correct his statement. He said that C.C. was lying.

Loss and Impact:

The Complainant said that he earned €6,618.17 monthly. He said that he had psychological issues after his position was terminated in November 2022 and that he began applying for positions in February 2023. He stated that he submitted 20 – 40 job applications and that he got a job offer in March or April 2023 to start in May 2023 in wallpaper sales. His salary was €3,800 gross per month. He worked there for approximately three months when the company was sold. In December 2023, he started in a new sales role, but he left after one month as there were “discrepancies between things agreed and what happened in practice”, e.g. in relation to flexibility and a company car. He received €4,000 for the month that he worked there.

The Complainant stated that it was not easy for him and that he could not get a reference from the Respondent. He said that he was in hospital from 20 February 2024 until 16 April 2024. He then applied for sales jobs, but without success. He said that he was called for some job interviews but was rejected by most. He started a new job in August 2024 for a car supplier but as the company cut jobs, he was one of the first to go. While there, he earned €13.80 per hour.

The Complainant stated that from the beginning of the process, he trusted people from HR. He said that due to his “bad English”, people tried to “put him in a certain direction to influence him”. He would have preferred if the Respondent had believed him. He said that he was prohibited from talking to other people and stories were created about him. He said that he has lost his dignity, pride and honour.

Cross-Examination:

Under cross-examination, the Complainant confirmed that he worked in Ireland from 9 July 2021. He stated that he did not frequently speak English at work. He said that he spoke with his team and clients in German. He said that 90% of his communications were in German.

The Complainant said that for the purposes of his employment there was a HR team in Düsseldorf and they were responsible for him. It was put to the Complainant that this was not true. The Complainant was then referred to his Contract of Employment, provided by the Respondent’s HR team in Ireland. The Complainant confirmed that he had signed that document.

The Complainant said that he “was not sure” as to whether he had received the Respondent’s policies and procedures. He was referred to his Contract of Employment which referred to “Disciplinary rules, Discipline and Grievance Procedures”. He accepted that it was his responsibility to read his Contract of Employment. He said that he “reads it for the first time now”.

The Complainant confirmed that he had onboarding / training for two weeks when he first moved to Ireland.

The Complainant was referred to the Respondent’s Disciplinary Procedure. He stated that he cannot remember if he read this document before. He said, “maybe [he] read it but briefly”. He was referred to the section titled “Appeals” and accepted that this is part of the disciplinary procedure.

The Complainant was referred to the email dated 21 October 2022 to which the Respondent’s Anti-Bullying, Harassment & Discrimination Policy and the Suspension Letter dated 19 October 2022 were attached. He accepted that these documents were attached. Initially he stated that, as regards the Suspension Letter, he did not know “what [the Senior HR Business Partner] was referring to”. Then he accepted that he was given a rationale in that letter as to why he was being suspended.

The Complainant accepted that the email dated 21 October 2022 inviting him to the Investigation Meeting attached eight documents, including A.A.’s complaint. He said that he only read the email and attachments on 24 October 2022. He said that he had been away from Friday until Sunday. He accepted that he had a duty to check his private email account, which he was using, as it was a serious matter. He also said that it was “an unusual situation”.

The Complainant stated that he did not contact the Employee Assistance Programme.

The Complainant confirmed that at the start of the Investigation Meeting on 24 October 2022, when referred to the attachments, he said: “Yes, I have read them and we can go ahead”. He stated that he thought that if they went slowly, then they could go ahead.

The Complainant confirmed that he apologised to A.A., but he said that it was not for touching her. He said that he was ashamed of the whole situation and that it was not a normal situation. He denied that in expressing shame he accepted that he had done what he was accused of. He said that it was not clear in his mind that he had done it.

He confirmed that it was fair to interview A.A. first, but that it was not fair that he was told during the Investigation Meeting, for the first time, that he was being investigated for sexual harassment. He said it was not fair to put him on paid suspension.

The Complainant was referred to his email dated 26 October 2022 and he accepted that he was taking advantage of the opportunity to correct the record. He was asked why he did not correct the reference to his apology for touching A.A.. He stated that his “apology only related to urinating” and that this was clear to him.

The Complainant was referred to the Investigation Report dated 25 October 2022 where it noted that he had apologised for touching A.A.. He stated that he “would have to refer to the answers in the interview”. The Complainant was referred to his email dated 26 October 2022 in which he stated: “I stand by things like drug use or alleged harassment on the 15th”. He said that he had used the word “alleged” here as others had said it.

It was put to the Complainant that his evidence was not plausible and that if he had been innocent, he would have proclaimed his innocence. He responded that: “it was only statement against statement”.

It was put to the Complainant that he would not be “standing by” the behaviour if he had not done it. The Complainant said that he had apologised for his “misbehaviour” to A.A.. He said that there was drug use and misbehaviour such as urinating in bottles and that this was “the same” as harassment.

The Complainant said that he accepted the suspension until “the truth came out”. It was put to the Complainant that he signalled to the Respondent that he had no problem with the suspension. The Complainant accepted that he had no problem with the suspension “at that stage” as there was no termination.

The Complainant confirmed that he had indicated that once the disciplinary procedure was concluded, he wanted to make a complaint.

The Complainant accepted that in referring his appeal to an independent appeals person, the integrity of the appeal was maintained.

The Appeal Meeting:

The Complainant confirmed that during his Appeal Meeting, the Second Senior HR Business Partner stated: “I appreciate that English is not your first language”. He said that the Respondent should have provided a German language speaker from the start, but it was helpful that the Second Senior HR Business Partner spoke slowly. He stated that he did not ask for a German language speaker at that stage.

The Complainant denied that he accepted responsibility during the Investigation Meeting and during the Appeal Meeting. He said that he did not admit anything. He said that he did not understand. The Complainant stated that his appeal was set out in his email dated 26 October 2022. He said that he wanted to appeal. The Complainant accepted that it was made clear to him that pursuant to the Respondent’s policy, he was not bringing an appeal, but initiating a grievance.

The Disciplinary Hearing:

The Complainant was referred to the email dated 3 November 2022, to which the Respondent’s Disciplinary Policy and a “drive-download folder” was attached. He stated that he could not access the documents in the “drive-download folder”. He stated that when he said during the Disciplinary Hearing that he was able to access the documents, he was referring only to the first two documents that were not in the “drive-download folder”.

The Complainant confirmed that at the outset of the Disciplinary Hearing, he said: “Yes I was able to access the documents”. He said that he thought that R2 was referring to the first two documents.

The Complainant was then referred to R2’s question: “A number of additional documents were also attached with your meeting invitation. Were you able to access them and do you have any additional questions on those?”. The Complainant then said: “I don’t remember if I had seen all of the documents. For now I can’t 100% remember".

It was put to the Complainant that he was equivocating and he was reminded that he was giving evidence under oath. He said: “I said that I couldn’t open them but I cannot remember if I could open them”.

The Complainant stated that he understood that the Disciplinary Hearing was an opportunity for him to respond to issues raised and that it could result in his dismissal. He was asked why did he not tell R2 that he could not open the relevant documents. He stated that he “assumed that the meeting would be on the basis of the previous discussions” and that “everything would be discussed at the meeting”. He said that it was his “mistake”.

He stated that a translator attended the Disciplinary Hearing and that she translated only once or twice. He said that it “was safe to explain it in [his] words”.

It was put to the Complainant that this contrasted sharply with his position at the WRC Hearing. The Complainant said that by the time of the Disciplinary Hearing, he “had told the story two or three times already”. It was put to him that he still had to understand the questions. He replied that was why he requested a translator.

The Complainant confirmed that the Disciplinary Hearing was lengthy. It was put to him that he did not require much translation. He said: “it was the same story again”. He agreed that he left the Disciplinary Hearing feeling heard and thinking that they had understood him.

The Complainant was asked if he accepted the incident of sexual harassment on 15 September 2022. He disputed that he accepted it. The Complainant was then referred to R3’s question in the Disciplinary Hearing: “Is it correct that you accept the incident of sexual harassment on 15 September 2022?” The Complainant was also referred to his response that, inter alia, “I can accept it as I trust them and apologised to [A.A.]”.

The Complainant was referred to his comment during the Disciplinary Hearing, that: “It’s a day I wish I could delete from my mind, it brings me to a person I am not”. The Complainant confirmed that it was an expression of regret. He said that he had regrets regarding his behaviour regarding the bottles and urinating.

The Complainant was referred to his comment, during the Disciplinary Hearing, regarding having contact with many women from different countries. It was put to him that he was referring to the treatment of women and his regrets regarding the sexual harassment. The Complainant said that this was not what he meant.

The Complainant was referred to his further comment, during the Disciplinary Hearing, that A.A. had written to HR and outlined that the Complainant had a lot of contact with women and that this could not happen again. It was put to the Complainant that he knew that this matter was about his treatment of women. The Complainant responded: “this is the end and after the reports that [he] had seen about [A.A.]”.

The Complainant confirmed that he felt comfortable during the Disciplinary Hearing. He confirmed that “the atmosphere was good to talk” and that there was no need for translation assistance.

The Complainant confirmed that he was invited to contact the Employee Assistance Programme but that he did not do so.

The Complainant confirmed that he was sent the Disciplinary Hearing notes, that he read over them and that he accepted that they were in order.

Termination of Employment:

The Complainant accepted that when he received the Termination of Employment Letter dated 10 November 2022, he quickly made arrangement to finish up. The Complainant stated that this was the “logical reply”.

The Complainant stated that he did not exercise his right of appeal, as referred to in the Termination of Employment Letter, as he “didn’t trust the process or people and so [he] didn’t appeal”. It was put to the Complainant that this response was inconsistent with his evidence as he had accepted that the Respondent’s appointment of a third party for an appeal demonstrated independence.

It was put to the Complainant that it was not reasonable for him to assume that there would not be an independent third-party appeal process.

The Complainant confirmed that he did not exercise his right of appeal and that his email dated 10 November 2022 in which he wished R2 a “a nice day” concluded the matter.

Mitigation of Loss:

The Complainant stated that “with this whole process”, he could not return to Ireland. He said that he gave up his tenancy. He said that he could not come back as he got a lot of calls and received threats.

He said that he reported to the Job Centre in Germany in December 2022 but that due to his shock, he could not start working sooner. He said that he was shocked by the situation and that mentally, it was not easy for him. He said that it was the first time that he had mental health issues and that he did not have any medical certificates for this time.

The Complainant referred to a medical certificate dated 8 July 2024 which referred to inpatient treatment that he received from 20 February 2024 until 16 April 2024. Since then, he said that he worked for a car supplier in August 2024 but that he was dismissed during the probation period and he did not receive a termination payment. He said that he did not receive termination payments concerning the other positions he held.

The Complainant said that he wrote to the Respondent’s office in Düsseldorf but that he did not know if he asked for a reference. He said that he thought that it was the “normal thing” to be sent a reference after the termination of one’s employment. The Complainant confirmed that he should have asked the Respondent for a reference but that he made a choice in not doing so.

The Complainant said that he has an interview on 10 November 2024 regarding a new career path and a strategy as regards how to proceed.

Re-Examination:

The Complainant referred to an agency letter dated 2 October 2024, terminating his employment.

The Complainant stated that on his floor at work there were teams from different countries and that they mostly spoke in German. He said that he did not use English for his business and that it was not a requirement. He says that his level of English is “basic”.

He stated that he was away the weekend of 21 October 2022. He said that he left on Friday and came back on Sunday evening. He said that he had not been told by the Respondent to check his private “Gmail” email account. He said that they told him that they would talk to people and would get back to him.

He said that he accepted the suspension as he understood that this was required to allow the process to progress. 

He said that during his Appeal Meeting on 1 November 2022, he asked for a translator and that he had made a mistake under cross-examination.

The Law:

Section 6(1) of the Unfair Dismissals Act 1977, as amended (the “UD Act”) 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 combined effect of the above provisions is to place the statutory burden of proof on the Respondent to show that: the reason for the dismissal was substantial and / or within the parameters of Section 6(4); and that it acted reasonably and in accordance with its disciplinary procedure or relevant code of practice.

Fair Procedures:

The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out the concerns it may have about the conduct or poor performance of an employee and at the same time, afford the employee the opportunity to answer the allegations and make representations as to why he / she should not be disciplined or dismissed. This 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 Role of the Adjudicator:

The Adjudicator is not to substitute themselves for an employer and effectively engage in a de facto rerunning of a disciplinary case. As stated by Noonan J. in The Governor and Company of the Bank of Ireland v. Reilly [2015] IEHC 241, [2015] 26 E.L.R. 229 (the “Bank of Ireland Case”):

“That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned…”

Therefore, the key questions are: whether fair procedures were followed by the Respondent; and whether the Respondent’s ultimate decision to dismiss fell within the “band of reasonableness”.

Findings and Conclusions:

Fair Procedures:

The Complainant submits that the investigation process was biased and flawed, favoured A.A. and was in breach of the Respondent’s policies. The Complainant submits that he was unfairly suspended and that he:

1.           Was not provided with specific allegations under investigation;

2.           Was not provided with terms of reference for the investigation;

3.           Was denied the opportunity to properly reply to the allegations against him;

4.           Was denied the opportunity for meetings to be held in German;

5.           Was denied an interpreter;

6.           Was denied the opportunity to cross-examine his accusers or challenge them;

7.           Was denied adequate representation; and

8.           Was denied a fair determination of the issues.

The Suspension:

The Complainant submits that he was unfairly suspended.

I note that the Code of Practice on Grievance and Disciplinary Procedures (paragraph 14) states: “An employee may besuspended on full pay pending the outcome of an investigation into an alleged breach of discipline”.

I note that the Respondent’s Disciplinary Procedure states that in certain cases, an employee may be suspended with pay pending the conclusion of an investigation and / or a disciplinary process. It further states that such a decision is precautionary and dependent on the seriousness of the situation. I note that in her evidence, R1, one of the investigators, outlined that the Complainant was placed on temporary paid suspension in light of the seriousness of the allegations. She said that this was not a punishment and that it was to assist the independent investigation. Under cross-examination, R1 said that by stating that the Complainant was suspended “without prejudice”, it meant that no determination had yet been made regarding the allegations. She stated that it was “standard practice” to remove access to tools and to the office. I also note that in her evidence, R2 stated that the suspension was a precautionary measure to allow for a thorough and fair investigation. I note that in his email dated 26 October 2022, the Complainant stated, inter alia, “I accept my suspension”. Finally, I also note that under cross-examination, the Complainant said that he accepted the suspension until “the truth came out”. He also accepted that he had signalled to the Respondent that he had no problem with the suspension “at that stage” as there was no termination. Under re-examination the Complainant stated that he accepted the suspension as he understood that this was required to allow the process to progress.

On the evidence, I am satisfied that there were serious allegations under investigation and that the Complainant was fairly suspended on full pay, in accordance with the Respondent’s policy and the Code of Practice on Grievance and Disciplinary Procedures.

1. & 2. The Specific Allegations Under Investigation and the Terms of Reference:

The Complainant alleges that the dismissal was not fair as he was not provided with the specific details of the allegations under investigation or with terms of reference for the investigation.

On 19 October 2022, the Complainant had a meeting with the Senior HR Business Partner during which he was informed that a serious allegation was made against him and that he was being suspended on full pay, pending investigation. That same day, he was emailed the Suspension Letter dated 19 October 2022 and a copy of the Respondent’s Anti-Bullying, Harassment & Discrimination Policy. The same letter stated: “I refer to our meeting today which was held to advise you that the [Respondent] has received a serious allegation made against you concerning another [Respondent] employee. This allegation is contrary to the [Respondent’s] Anti-Bullying, Harassment & Discrimination Policy […], a copy of which is enclosed, for your information.”

On 21 October 2022, the Complainant was emailed: A.A.’s complaint dated 18 October 2022; the Respondent’s Anti-Bullying, Harassment & Discrimination Policy; his Suspension Letter dated 19 October 2022; and the Investigation Meeting notes concerning A.A., B.B., C.C., D.D., and E.E. dated 19 and 20 October 2022.

A.A.’s Complaint dated 18 October 2022:

A.A.’s complaint dated 18 October 2022 sets out the details of the incidents dated 15 and 24 October 2022. It is headed as follows:

“Name: [The Complainant] Nature: sexual harassment Date and time: 24th of September 2022, time around 8am. Names of witnesses: [D.D., B.B., C.C]. Actions: Meeting request made by myself to [the DACH Senior HR Business Partner] via slack”.

I note that while the heading of the complaint states that the date of the incident is 24 September 2022, approximately one third of the body of the complaint details the incident dated 15 September 2022 and approximately two thirds of the body of the complaint details the incident dated 24 September 2022.

As regards the incident dated 15 September 2022, A.A. states that the Complainant became “really clingy with [her] and started hugging [her] or touching [her face].” A.A. further states “I started to feel uncomfortable and I asked him to stop”. She also refers to the relevant witnesses – C.C. and B.B.. A.A. then proceeds to outline the incident dated 24 September 2022. She states that she woke up next to the Complainant and felt “his hand under [her] underwear and touching [her] intimate parts.”

The entire complaint which outlines the two alleged incidents dated 15 and 24 September 2022 runs to almost one full, typed A4 page. The details of the complaint are clear. While it is apparent from A.A.’s Investigation Meeting notes that A.A. was more concerned with the incident dated 24 September 2022, it remains the case that in her complaint dated 18 October 2022, A.A. referred in detail to the incident dated 15 September 2022 and to how it made her feel uncomfortable. In her evidence, R1, one of the investigators, outlined that the incident on 15 September 2022 was considered sexual harassment when the terms of the Respondent’s Anti-Bullying, Harassment & Discrimination Policy were considered. R1 stated under cross-examination, that the Respondent had a duty of care to investigate the incident dated 15 September 2022 once it was reported. It is clear, on a reading of A.A.’s complaint dated 18 October 2022, that the Complainant was informed of the allegations under investigation.

The Respondent’s Policies / Documentation:

I note that the Respondent’s Anti-Bullying, Harassment & Discrimination Policy sets out the definition of “sexual harassment”. The same policy also addresses, inter alia: the investigation process; the right to be accompanied; the confidentiality of the process; and the appeal process.

I note that it was R1’s evidence that the Respondent’s Anti-Bullying, Harassment & Discrimination Policy constituted the terms of reference. I note that it was R2’s evidence that A.A.’s complaint dated 18 October 2022 constituted the terms of reference. The Respondent’s Anti-Bullying, Harassment & Discrimination Policy states: “The investigation will be governed by clear terms of reference based on the written complaint and any other matters relevant to the complaint. The terms of reference will set out the scope of the investigation and the process involved.” It appears that the Respondent’s policy envisages separate terms of reference. I find that it was a shortcoming on the part of the Respondent not to provide the Complainant with separate terms of reference as per its own policy. However, I note that the Code of Practice on Grievance and Disciplinary Procedures does not specifically require that the employee be provided with separate terms of reference. Instead, it refers to, inter alia, providing an employee with details of the allegations and the disciplinary procedures.

It is clear from the Respondent’s Anti-Bullying, Harassment & Discrimination Policy what constitutes sexual harassment and the process involved when a complaint of sexual harassment is received. The Respondent’s Disciplinary Procedure refers to the Respondent’s disciplinary procedure; the stages of disciplinary sanction; misconduct; and gross misconduct. Under cross-examination, the Complainant indicated that he cannot remember if he had read the Respondent’s Disciplinary Procedure and said: “maybe [he] read it but briefly”. The Complainant accepted that it was his responsibility to read his Contract of Employment which referred to “Disciplinary rules, Discipline and Grievance Procedures”. The Complainant also confirmed that at the start of the Investigation Meeting on 24 October 2022, when referred to the documents attached to the email invite, including A.A.’s Complaint dated 18 October 2022 and the Respondent’s Anti-Bullying, Harassment & Discrimination Policy, he said: “Yes, I have read them and we can go ahead”. I note that at the start of the Disciplinary Hearing, the Complainant was referred to the Respondent’s Anti-Bullying, Harassment & Discrimination Policy and to the Respondent’s Disciplinary Procedure. He was also asked if he was able to access the documents attached to the email invite. He stated: “Yes I was able to access the documents”. Under cross-examination, the Complainant stated, inter alia, that he could not remember if he could open all of the documents. In the circumstances, it is clear that the Complainant was provided with all of the relevant documents which set out the allegations, the Respondent’s Anti-Bullying, Harassment & Discrimination Policy and the Respondent’s Disciplinary Procedure. It was a matter for the Complainant as to whether he read those documents.

The Investigation Meeting and the Disciplinary Hearing:

The Complainant stated that the allegation concerning the incident on 15 September 2022 had not been put to him as a sexual harassment incident. However, this is not borne out in: the Investigation Meeting notes dated 24 October 2022; the Complainant’s email dated 26 October 2022; the email invite to the Disciplinary Hearing dated 3 November 2022; or in the Disciplinary Hearing notes dated 4 November 2022.

At the outset of the Investigation Meeting, the Complainant was asked to explain “in [his]words the events of the 15th September and 24th September”. During the Investigation Meeting, he was also told: “In this case we suspended you because [the Respondent] has zero tolerance on sexual harassment […] Today is your opportunity to see the entire investigation and minutes on this case. I do understand that it is a hard situation to be in but given the serious nature of this case, we have no choice but to move in this way. We wanted to meet with you today to give you the chance in your own words to talk about the events on the 15th and 24th of September”. During the Investigation Meeting, the Complainant himself, by way of defence and when specifically addressing the incident on 15 September, states “you can ask my female colleagues about this, I am not sure anyone can say this about me when I am in a normal situation, I am the opposite of discriminatory”.

I note that in his email dated 26 October 2022, sent in response to the Investigation Report, the Complainant states: “I don’t have to hide and I stand by things like drug use or alleged harassment on the 15th…”. He also referred to his “apology for [his] unknowing harassment on September 15th.”

I also note that in the email invite to the Complainant concerning the Disciplinary Hearing dated 3 November 2022, it states:

“- Allegation 1: Sexual Harassment on the 15th September 2022

- Allegation 2: Sexual Assault on the 24th September 2022.”

Finally, I note that these allegations were reiterated in full by R2 at the commencement of the Disciplinary Hearing on 4 November 2022. Moreover, during the Disciplinary Hearing, the Complainant was also asked by R3 “Is it correct that you accept the incident of sexual harassment on 15 September 2022?” The Complainant responded that he “cannot remember fully” and that he “can accept it as [he] trusts them and apologised to [A.A.] as it was out of nature and she accepted [his] apology”. Under cross-examination, the Complainant was referred to two of his comments during the Disciplinary Hearing as regards having contact with women from different countries; and as regards A.A. stating that the Complainant had a lot of contact with women. It was put to the Complainant that in making his first comment, he was referring to the treatment of women and his regrets concerning the sexual harassment; and that in making his second comment, he knew this matter concerned his treatment of women. As regards the first comment, the Complainant said that this was not what he meant. As regards the second comment, he said that he was only aware about what the matter concerned “after the reports that [he] had seen about A.A.”.  

The Initial Interviews:

I note that the Respondent takes issue with the initial interviews dated 10 and 11 October 2022 insofar as they, inter alia, were “not defined or notified to the Complainant”. However, I note that in her evidence, R1 said that once the complaint was escalated to her and the Senior HR Business Partner for a formal investigation, they started “from scratch” and did not use anyone else’s findings. She said that they did not use the documents from the initial interviews when making their findings. She said that the Complainant was only provided with the documents that they had used during the formal investigation.

Conclusion:

On considering A.A.’s complaint dated 18 October 2022; the Suspension Letter dated 19 October 2022; the Investigation Meeting notes; the Complainant’s email dated 26 October 2022; the Disciplinary Hearing notes; and all of the evidence, it is clear that in accordance with the Code of Practice on Grievance and Disciplinary Procedures, the details of the allegations were put to the Complainant. As outlined above, he was also provided with the Respondent’s relevant policy documentation as regards sexual harassment and the disciplinary process. While it was a shortcoming on the part of the Respondent not to provide the Complainant with separate terms of reference as per its own policy, I note that the Code of Practice on Grievance and Disciplinary Procedures does not specifically require that the employee be provided with terms of reference. Instead, as noted above, it refers to, inter alia, providing employees with details of the allegations and the disciplinary procedures, as was done here. In the circumstances, I am satisfied that, on balance, fair procedures were applied.

3. – 6. The Opportunity to: Reply to the Allegations Against Him; Have the Meetings held in German; Have an Interpreter; and Cross-Examine or Challenge Accusers:

The Complainant alleges that he did not have the opportunity to reply to the allegations against him; that he was denied the opportunity to have meetings held in German; that he was denied an interpreter; and that he was denied the opportunity to cross-examine his accusers or challenge them.

The Investigation Meeting:

The Complainant’s Investigation Meeting took place on 24 October 2022 over the course of one hour. In advance of the Investigation Meeting, the Complainant was provided with the Respondent’s Anti-Bullying, Harassment & Discrimination Policy; his Suspension Letter dated 19 October 2022; A.A.’s complaint dated 18 October 2022; and the Investigation Meeting notes concerning A.A., B.B., C.C., D.D. and E.E. dated 19 and 20 October 2022.

At the outset of the Investigation Meeting, the Complainant stated that he: “wish[ed] [they] had someone from HR in Germany because [his] English is not so good. [He] read what everyone said and [he] put it into Google translate to convey what [he] want (sic) to say today. [He]only saw the documents and the email [the Respondent] sent 2 hours ago”. The Complainant was told “If at any time you want us to slow down or reiterate the questions please let us know and we will re-phrase the questions or we can re ask them. We are under no time pressure so please stop us at any time. For the purposes of today’s meeting, can you please confirm that you have read through these documents and also you said you only have had two hours to review as you only saw them today. Can you check that you have had enough time to read through them and have the meeting today?” The Complainant responded: “Yes, I have read them and we can go ahead”.

Under cross-examination, the Complainant stated that he thought that if they went slowly, they could go ahead. I note that in her evidence, R1 stated that the Complainant fully understood what was discussed and that he could respond to all questions. She said that he did not seek to slow the meeting down, nor did he ask for questions to be reiterated.

During the Investigation Meeting, the Complainant was asked to explain in his own words, the events of 15 and 24 September 2022. At the conclusion of the Investigation Meeting, he was told “If you feel like there was something you forgot to mention please also let us know and we will schedule more time with you to discuss this. A copy of these notes will also be sent to you for your review and please let us know if anything has been misunderstood and feel free to add your comments.” Following the Investigation Meeting, the notes were sent to him for his review. His five brief amendments were accepted.

The Appeal Meeting:

Following the Complainant’s receipt of the Investigation Report, the Complainant emailed R1 and the Senior HR Business Partner on 26 October 2022. He stated: “I don’t have to hide and I stand by things like drug use or alleged harassment on the 15th”. He then took issue with A.A.’s account and the witnesses’ accounts and stated, inter alia, that he “would like to file a complaint against all 4 also after the conclusion of the matter because of this damage and the discrimination and bullying”. On 27 October 2022, the Complainant confirmed that this was his appeal.

The Appeal Meeting took place on 1 November 2022. At the outset of the Appeal Meeting the Complainant was told by the Second Senior HR Business Partner: “You had the right to be accompanied today by a colleague and have chosen not to, are you ok to continue with the meeting?”. The Complainant replied “Yes”. The Second Senior HR Business Partner further stated: “I appreciate English is not your first language. I will try to speak slowly, however, please stop me if you need me to repeat anything or have not understood the questions that I can repeat”. Under cross-examination, the Complainant stated that it was helpful that the Second Senior HR Business Partner spoke slowly. The notes of the Appeal Meeting show that the Complainant also later stated “In this meeting, I can say something like I wish in this programme, someone in HR would talk in German to me. Is it a good place in this process to tell you this?”. He was asked if he wanted a German translator in the “nextcalls”. The Complainant replied “Yes, its not a small case. I translated it in the Google programme so I am not sure it’s the right programme. I think in this case it’s better to bring in a HR person that speaks German”.

It was the Respondent’s position that during the Appeal Meeting, the Complainant confirmed that he had misunderstood the appeal process and that he was not appealing the investigation, but raising a grievance / discrimination and bullying complaint against A.A. and the witnesses. I note that the Second Senior HR Business Partner is no longer employed by the Respondent and did not attend the Hearing. It was the Complainant’s position that the Appeal Meeting was “prejudged and biased”. The Complainant further submitted that it was not clear that he had withdrawn his appeal concerning the findings of the Investigation Report dated 25 October 2022 and that he had been misled regarding the process. I note that during the Appeal Meeting, the Complainant stated, inter alia: “Based on our policy of bullying, harassment and discrimination, questions and statements were made against me [which] are discriminating and bullying”. In his evidence-in-chief, the Complainant stated that he misunderstood the appeal. He said that he wanted to appeal the “last statement of the group” and the “last statement regarding drugs”. Under cross-examination, the Complainant stated that his appeal was set out in his email dated 26 October 2022. He said that he wanted to appeal. He accepted that it was made clear to him that pursuant to the Respondent’s policy, he was not bringing an appeal, but initiating a grievance.  

The Disciplinary Hearing:

The Complainant was sent an email invite to the Disciplinary Hearing on 3 November 2022, to which a number of documents in a “drive-download folder” were appended. The Disciplinary Hearing took place on 4 November 2022 over the course of one hour and twenty minutes. A translator attended the Disciplinary Hearing. It was common case that the translator was required to provide very little translation. I note that in her evidence, R2 stated that the Complainant never, at any point, expressed difficulty in understanding the meeting and that he did not request to speak in German. The Complainant stated that the translator translated only once or twice. He said that it “was safe to explain it in [his] words”. Under cross-examination, it was put to the Complainant that this contrasted sharply with his position at the WRC Hearing. The Complainant said that by the time of the Disciplinary Hearing, he “had told the story two or three times already”. It was put to him that he still had to understand the questions. The Complainant replied that was why he requested a translator.

At the outset of the Disciplinary Hearing the Complainant was informed “This disciplinary hearing is an opportunity for you to respond to any issues raised and to present any mitigating circumstance, it is really important that you walk away from today’s meeting feeling heard. I’m sure you understand that the allegations being made against you are very serious, so I encourage you to be open, honest and transparent throughout the meeting.” In her evidence, R2 noted that the Disciplinary Hearing was longer than usual. In his evidence, the Complainant stated that during the Disciplinary Hearing, he felt “comfortable” and that “the atmosphere was good to talk”. On 7 November 2022, the Complainant was emailed a copy of the Disciplinary Hearing notes for his review. He confirmed by email dated 8 November 2022 that the notes were “all good”. Under cross-examination, the Complainant confirmed that he felt comfortable during the Disciplinary Hearing and stated that “the atmosphere was good to talk”.

Witness Evidence:

The Complainant outlined that there were inconsistencies in the witnesses’ evidence – namely concerning the drugtaking and the date of the incident. The Complainant also took issue with witness credibility and with the impact of the drugs and alcohol on witness evidence.

I note that following the Investigation Meeting with the Complainant on 24 October 2022, follow-up Investigation Meetings were held with A.A. (on 24 and 25 October 2022 – an 18-minute- and 10-minute-meeting); C.C. (on 24 Oct 2022 – a 15-minute-meeting) and B.B. (on 25 Oct 2022 – a 15-minute-meeting). I note that during these meetings, the Complainant’s account of drugtaking was subsequently put to the three witnesses (A.A., B.B. and C.C.). A.A. admitted to drugtaking and confirmed the dates of the incidents. B.B. denied any knowledge of drugtaking and confirmed a date confusion and that he was not present on 15 September 2022. C.C. denied any knowledge of the drugtaking.

The Respondent did not put the notes of these follow-up Investigation Meetings to the Complainant for his comment prior to completing the Investigation Report. This was a shortcoming on the part of the Respondent. However, I note that allegations of sexual harassment and sexual assault – and not allegations of drugtaking – were under investigation. In her evidence-in-chief, R1, one of the investigators outlined that they took into account that substances were present. Under cross-examination, R1 outlined that they did “balance everything” when drawing up the Investigation Report. R1 also said that when completing the Investigation Report dated 25 October 2022, B.B.’s evidence was excluded as he had been confused as regards the dates of the incidents. I also note that R2, who conducted the Disciplinary Hearing, confirmed that there was a discussion regarding drugtaking, however irrespective of that, the allegations of sexual harassment and sexual assault were very serious. R3, who also conducted the Disciplinary Hearing, stated under cross-examination that he considered the effect of the drugs on everyone. He also took into account that C.C. had lied. He said that he took everything into account to form a view on C.C.’s credibility. In the circumstances, it does not appear that the Respondent’s shortcoming, in failing to provide the notes of the follow-up Investigation Meetings to the Complainant, had a significant bearing on the matter. Moreover, it also appears on the evidence, that the decision-makers (R1, R2 and R3) took all factors into account.  

The Complainant submits that he was not afforded the opportunity to cross-examine A.A. or the witnesses and that this was a “fundamental flaw”. However, at no stage did the Complainant seek to cross-examine A.A. or the other witnesses. As stated by Mulcahy J. in Campbell v. Irish Prison Service [2023] IEHC 706 at paragraph 54: “Mr Campbell avers that none of the relevant witnesses were made available, but does not aver that he ever requested that they be made available but that that request was refused.” As the Complainant did not seek to cross-examine A.A. or the other witnesses at the relevant time, his challenge here is not upheld.

Conclusion:

I am satisfied that in accordance with the Code of Practice on Grievance and Disciplinary Procedures, the Complainant was given the opportunity to respond fully to the allegations against him, present his own evidence and present any mitigating factors. He had a lengthy Investigation Meeting and a lengthy Disciplinary Hearing. The notes of the Investigation Meeting and the Disciplinary Hearing show that the Complainant had sufficient opportunity to respond to the allegations against him and to provide details of any mitigating factors. This is also borne out in the evidence of the decision-makers (R1, R2 and R3). The Complainant also knew that the Investigation Meeting, the Appeal Meeting and the Disciplinary Hearing were being conducted in English and he specifically confirmed at the outset of all, that he was satisfied to proceed and (where relevant) that he had read and / or had access to the documents sent to him. The Respondent must be able to rely on the Complainant’s confirmation that it can proceed in the circumstances. I also note that in her evidence, R1 stated that the Complainant fully understood what was discussed and that he could respond to all questions. She said that he did not seek to slow the meeting down, nor did he ask for questions to be reiterated. I note that after the Complainant requested an interpreter during the Appeal Meeting, he was provided with one. Finally, I also note that when the Complainant was provided with an interpreter at the Disciplinary Hearing, it was common case that, she was only called on minimally to provide interpretation. I also note that in their evidence, the decision-makers (R1, R2 and R3) outlined that they took all factors into account in reaching their decisions. Finally, I note that the Complainant did not seek to cross-examine A.A. or the witnesses, as per the abovementioned caselaw. In the circumstances, I am satisfied that, on balance, fair procedures were applied.  

7. The Right to Adequate Representation:

The Complainant alleges that there was “a particular onus” on the Respondent to ensure that he was adequately represented. The Complainant submits that he had no representation at all. The Complainant further submits that it was entirely insufficient that he was advised that he could be accompanied by a work colleague as a “companion”.

The Investigation Meeting and the Appeal Meeting:

In the email invite to the Investigation Meeting dated 21 October 2022, the Complainant was informed “You have the right to be accompanied at the meeting by fellow employee. Please let me know the name of your companion if you wish to avail of this right.” The Complainant was also informed that the complaint and the investigation process were strictly confidential and should not be discussed with colleagues. At the outset of the Investigation Meeting dated 24 October 2022, the Senior HR Business Partner referred to the Complainant’s right to be accompanied and noted that he had confirmed that he did not wish to bring anyone with him.

At the outset of the Appeal Meeting dated 1 November 2022, the Complainant confirmed that he had chosen not to be accompanied by a colleague.

The Disciplinary Hearing:

In the email invite to the Disciplinary Hearing dated 3 November 2022, the Complainant was informed “You have the right to be accompanied at the meeting by fellow employee. Please let me know the name of your companion if you wish to avail of this right.” The Complainant was also informed that the complaint and investigation process were strictly confidential and should not be discussed with colleagues. At the outset of the Disciplinary Hearing dated 4 November 2022, the Complainant confirmed that he was satisfied to proceed and confirmed that he did not wish to bring anyone with him.

The Right to Be Accompanied by a Colleague or Staff / Union Representative:

I note that the Respondent’s Anti-Bullying, Harassment & Discrimination Policy states that a person can be accompanied by a colleague or by a staff / union representative. I note that under cross-examination, R1, one of the investigators, confirmed that while the Complainant was informed that he could be accompanied by a colleague, he was not told that he could be accompanied by a staff / union representative. I also note the Complainant’s submission that he was receiving conflicting information insofar as he was being told that he could bring a colleague, but also that he could not discuss the matter with anyone. It was therefore a shortcoming on the part of the Respondent not to inform the Complainant that he could be accompanied by a staff / union representative, as per its own policy. It was also a shortcoming on the part of the Respondent that it failed to make clear its policy regarding accompaniment by a colleague or staff / union representative vis-à-vis confidentiality obligations. However, against this, I must consider the Complainant’s evidence and the impact of the absence of a colleague or staff / union representative. I note that in his evidence-in-chief, the Complainant stated that he did not let the Respondent know of a person to accompany him as he did not have one. He also said that the colleagues who were his friends were in the group making the allegations. He also stated that he did not have a representative and that he was not a member of a trade union. I also note that under cross-examination, the Complainant confirmed that he felt comfortable during the Disciplinary Hearing, stating that “the atmosphere was good to talk”. On the evidence, it does not appear that the absence of a colleague or staff / union representative had a significant bearing on the matter. In the circumstances, I am satisfied that, on balance, fair procedures were applied.

Right to Representation:

Additionally, I note that being accompanied is different to being represented. I note that the Code of Practice on Grievance and Disciplinary Procedures provides that an employee should be given the opportunity to avail of the right to avail of representation during the procedure. I note that both Parties referred in detail to, inter alia: Barry McKelvey v. Iarnród Éireann / Irish Rail [2021] 32 E.L.R. 165; [2021] 1 I.L.R.M. 181; [2019] IESC 79 (the “McKelvey Case”); and Denis Walsh v. Avoca Handweavers Limited, ADJ-00045564 decision (the “Avoca Decision”).

The McKelvey Case establishes that legal representation, when requested, is not an automatic right and should be granted only in exceptional cases where it is established that a fair process cannot ensue without legal representation. As noted by Clarke C.J. at paragraph 44:

“When considering whether any process is fair, in the context of representation, the question is not whether a particular type of representation might give some added value but whether its absence can be said to leave the person concerned without an adequate level of representation. The levelwhich will be considered adequate will depend on an overall assessment of all of the circumstances of the process envisaged.”

As noted in the Avoca Decision, the phrase “avail of” is used in both the McKelvey Case and in the Code of Practice on Grievance and Disciplinary Procedures. The Avoca Decision notes that, “[s]ignificantly, words such as ‘shall be provided with’ or similar words, do not appear”. Therefore, it appears that an employee facing a disciplinary charge is entitled to “avail of” representation but does not have to “be provided with” representation by the employer.

Conclusion:

I note that the gravity of the situation was made clear to the Complainant from the outset of the investigation. In the Suspension Letter dated 19 October 2022, the Complainant was told that a “serious allegation” had been made against him and that if was upheld, it could result in disciplinary action up to and including dismissal. In his email invite to the Investigation Meeting dated 21 October 2022, there is a reference to the “seriousness of the allegation”. At the outset of the Investigation Meeting on 24 October 2022, the Complainant was informed “we received a serious allegation about you”. In the email invite to the Disciplinary Hearing dated 3 November 2022, the Complainant was informed: “It is important to understand this meeting could result in disciplinary action being taken against you up to, and including dismissal”. I note that the Complainant never requested representation at any stage. I note that under cross-examination, R2 accepted that a union representative or a legal representative could have addressed discrepancies in witnesses’ accounts as well as credibility. However, it was not clear on the evidence before me that a fair process could not ensue without legal representation. In the circumstances, I am satisfied that the Complainant was not denied the opportunity to avail of the right to be represented and that, on balance, fair procedures were applied.

8. Fair Determination of the Issues:

The Complainant submits that he was denied a fair determination of the issues. He denies, inter alia, that he admitted the sexual harassment incident dated 15 September 2022. He denies that the incident dated 24 September 2022 occurred.

During the Investigation Meeting, the Complainant stated that he had taken ecstasy on 15 September 2022 and that he woke up urinating on the floor. He stated: “Yes I wanted to apologize because I woke up when I was pissing and I wanted to believe them but I cannot remember this situation. When I do something wrong or that was too much I am sorry for that. [A.A.] said okay to that and this was the last thing I would want so that was the point I was apologizing to her for that.” He stated that on 24 September 2022, he asked A.A. to come to the kitchen to talk to him. He stated: “I said I didn’t remember what happened but when I do something like that I am sorry”. He also stated that he contacted A.A. on “Slack” a few days later “to see if she was okay as [he, the Complainant] had apologies (sic) on the 24th but he wasn’t sure what that meant now”.

During the Investigation Meeting, the Complainant confirmed that A.A. was lying next to him while sleeping on 24 September 2022. He stated: “I was very close to A.A. when I woke up, when I fell asleep there was space between us. I didn’t want to create a new situation where it was like the last time as I did not speak to them for 2 weeks andwent (sic) I woke up I wanted to go to the toilet and met [D.D.] and told him I was going home.”

On 25 October 2022, he availed of the opportunity to correct the minutes of the Investigation Meeting. I note that these amendments did not go to the abovementioned statements.

The Investigation Report dated 25 October 2022 outlined that the Respondent upheld A.A.’s complaint, finding that the incident as described on 15 September 2022 occurred. In this regard, the Investigation Report noted, inter alia, that the sexual harassment had been witnessed by C.C.. It also noted, inter alia: “[The Complainant] apologised on the night of the 24th for his behaviour and touching A.A. on the night of the 15th. [The Complainant] has informed us, he was under the influence of ecstasy at the time but has admitted to touching [A.A.] inappropriately and that it was out of character for him to act like this.” The Report further outlined that the incident dated 24 September 2022, given the facts above, likely occurred on “the balance of probability”.

In his email dated 26 October 2022, the Complainant stated: “I stand by things like drug use or alleged harassment on the 15th but everything else makes me really sad right now because so much lies and it gives me more and more confirmation that my decision to stay away from these people was the right one because I can’t trust them.” He also referred to his “apology for [his] unknowing harassment on September 15.th”. He stated that he would like to file a complaint against A.A. and the witnesses, alleging, inter alia, that they were discriminating against him and bullying him. When asked, the Complainant confirmed in a follow-up email, that this was his appeal. It was the Respondent’s position that during the Appeal Meeting dated 1 November 2022, the Complainant confirmed that he had misunderstood the appeal process and that he was not appealing the investigation, but raising a grievance / discrimination and bullying complaint against A.A. and the witnesses. It was the Complainant’s position that the Appeal Meeting was “prejudged and biased”. I note that the Complainant submitted that it was not clear that he had withdrawn his appeal concerning the findings of the Investigation Report dated 25 October 2022 and that he had been misled regarding the process during the Appeal Meeting. In his evidence-in-chief, the Complainant stated that he misunderstood the appeal. He said that he wanted to appeal the “last statement” of the group and the “last statement regarding drugs”.

During his Disciplinary Hearing dated 4 November 2022, the Complainant was asked: “Is it correct that you accept the incident of sexual harassment on 15 September 2022?” In response, the Complainant stated, inter alia: “I cannot remember fully as we used some drugs that evening […] I cannot remember that I done (sic) these things, C.C. told me one day later what I had done, I was in shock as that is not my nature, it was my first time taking some of these drugs, I can accept it as I trust them and apologised to A.A. as it was out of nature and she accepted my apology.”

On 8 November 2022, the Complainant confirmed that he had no comments regarding the notes of the Disciplinary Hearing.

On 10 November 2022, the Respondent sent the Complainant his Termination of Employment Letter by email. As regards the first allegation concerning the incident dated 15 September 2022, it noted that the Complainant had “accepted” that the sexual harassment allegation occurred. It also noted that the Complainant stated that he had no recollection of the incident due to a “blackout” from taking ecstasy. It also found that there were a number of witness statements confirming the Complainant’s actions on 15 September 2022; and that there was a lack of remorse on the Complainant’s part. As regards the second allegation concerning the incident dated 24 September 2022, it was found that while there were no witnesses present during the incident, A.A. and the Complainant slept alone in the same room, side-by-side on the same piece of furniture. It was found that there was no reason to believe that A.A. was making a malicious complaint. The Respondent found that on “the balance of probability” and based on the evidence available that the incident dated 15 September 2022 took place (“through [the Complainant’s] admission”) and that the incident dated 24 September 2022 was “highly likely to have taken place”. The Respondent determined that the Complainant’s actions amounted to gross misconduct.

The Termination of Employment Letter provided details of the appeals procedure. The Complainant responded, asking for details as to where he could send his laptop etc.. The Complainant did not appeal the decision.

Under cross-examination, the Complainant stated that he apologised to A.A. but said that it was not for touching A.A. on 15 September 2022. He stated that his “apology only related to urinating” and that this was clear to him. He denied that in expressing shame he accepted the allegations. I note that it was put to the Complainant that he would not be “standing by” the behaviour (as per his email dated 26 October 2022) if he had not done what he was accused of. The Complainant said that he had apologised for his “misbehaviour” to A.A.. He said that there was drug use and misbehaviour such as urinating and that this was “the same” as harassment. The Complainant was referred to his comment during the Disciplinary Hearing dated 4 November 2022 as regards having contact with many women from different countries. The Complainant was referred to his further comment during the Disciplinary Hearing that “A.A. wrote to HR and said the Respondent has a lot of contact with women and [that] this can happen again”. It was put to him that he was referring to the treatment of women and his regrets regarding the sexual harassment. The Complainant replied that this was not what he meant. It was put to him that he knew that this matter was about his treatment of women. The Complainant responded: “this is the end and after the reports that [he] had seen about [A.A.]”.

Conclusion:

I note that in her evidence, R1, one of the investigators, stated that the Investigation Meeting which took place on 24 October 2022, lasted approximately one hour and that the Complainant was given every opportunity to talk about what happened and to present his perspective. She said that they took into account that substances were present. Under cross-examination, R1 stated that she did not think it was relevant that the Complainant and A.A. were taking ecstasy as she was not investigating the drugs matter. She said that they did “balance everything” when drawing up the Investigation Report. She also said that when completing the Investigation Report dated 25 October 2022, B.B.’s evidence was excluded as he had been confused as regards the dates of the incidents. I also note that R1 referred to the correct standard of proof which was applied, namely the balance of probabilities.

I also note R2’s evidence regarding the Disciplinary Hearing. She said that they wanted to create a “safe space” and ensure that the Complainant felt heard. She stated that at a disciplinary hearing, it is critical that the person can share mitigating facts before a decision is reached. She stated that the Complainant had the opportunity to address any investigation findings. She stated that the Complainant did not dispute that the events on 15 September 2022 had occurred. She believed that his comment “I am nothing as described” concerned more about him urinating on the floor rather than the sexual harassment. She stated that the Complainant was asked if he believed that the incident on 15 September 2022 happened. She said that his response “Yes, I do believe […]” indicated to her that he accepted that the incident on 15 September 2022 had occurred. She stated that they asked the Complainant why A.A. would make up the allegation concerning the incident on 24 September 2022, to see if there was anything else that they should consider. She stated that this question did not shift an onus onto the Complainant. She said that they just wanted to fully understand his position.

I also note that R2 stated that following the Disciplinary Hearing, she and R3 discussed the Complainant’s comments and reviewed the Investigation Report and all statements provided in conjunction with it. They also discussed potential outcomes and possible sanctions. I note that under cross-examination R3 confirmed that he took into account that C.C. had lied. R3 also said that he considered the effect of the drugs on everyone. Finally, I note that R2 referred to the correct standard of proof which was applied, namely the balance of probabilities.  

I also note that the Complainant was given the opportunity to correct the notes of his Investigation Meeting and his Disciplinary Hearing. He made only amendments of a more minor nature to the notes of his Investigation Meeting, all of which were accepted. He made no amendments to the notes of the Disciplinary Hearing. The Complainant then had two opportunities to appeal – the first time, following his receipt of the Investigation Report dated 25 October 2022; and the second time, following his receipt of the Termination of Employment Letter dated 10 November 2022. I note that the Complainant submitted that it was not clear that he had withdrawn his appeal concerning the findings of the Investigation Report dated 25 October 2022 and that he had been misled regarding the process during the Appeal Meeting. However, I also note that the Termination of Employment Letter dated 10 November 2022 outlined the Complainant’s right to appeal the Respondent’s ultimate decision to terminate his employment. The Complainant did not invoke this second right of appeal.

I note that neither the UD Act nor the Code of Practice on Grievance and Disciplinary Procedures places a positive obligation on an employee to pursue an appeal against a dismissal. However, I also note that the right of appeal is an important part of the disciplinary process. It affords an employee the opportunity to formally disagree with any finding(s) and to present their case to an independent person for review. The Termination of Employment Letter dated 10 November 2022 stated, inter alia, that the Complainant had “accepted as part of the investigation process, that the sexual harassment allegation in relation to the 15th September 2022 took place”. The same letter outlined the appeal procedure. It was R2’s evidence if there had been an appeal, she would have handed the matter over to an independent team member. In this complaint before the WRC, the Complainant submits that he did not accept that the sexual harassment incident on 15 September 2022 took place. The Complainant also disputes the Respondent’s understanding of his comments during the Investigation Meeting and the Disciplinary Hearing. While the Complainant outlined a lack of trust in the appeal process, I note that under cross-examination, he accepted that the Respondent’s appointment of a third party to consider an appeal, maintained the integrity of the appeal. The Complainant’s failure to invoke his second right of appeal is a relevant consideration, particularly as he is disputing, inter alia, what he meant by his comments; and as he is also disputing the fairness of the Respondent’s procedures.  

In conclusion and following a consideration of all of the evidence, I am satisfied that, in accordance with the Code of Practice on Grievance and Disciplinary Procedures, the Complainant had a fair and impartial determination of the issues concerned, taking into account his response and representations and any other relevant or appropriate evidence, factors or circumstances. I am also satisfied that, on balance, fair procedures were applied.

Fair Procedures – Conclusion:

I note that, pursuant to Buttimer v. Oak Fuel Supermarket Ltd. [2023] IEHC 126, the standard of fair procedures is dependent on the circumstances of the complaint. I also note the findings of Charleton J. in the McKelvey Case, which endorse Mooney v. An Post [1998] 4 I.R. 288. Charleton J. refers to the applicable minimum standards, set at a level:

“which recognises that the introduction of criminal trial structures into a procedure that is supposed to be implemented by people without legal training, but through the application of fairness, common sense and shrewdness, is not required as a matter of law”.

Therefore, the standard of fair procedures applied in an internal employment investigation and disciplinary process is not the same standard as that applied in a criminal trial. Moreover, the applicable burden of proof is that of the balance of probabilities.

I have considered the issues raised by the Complainant both individually and collectively. As outlined above, I note that the Respondent’s process had some shortcomings. However, I am satisfied that on balance, where shortcomings are identified, the Respondent’s process was not flawed to an extent that the entire process was rendered unfair. I also find that the Respondent’s process – encompassing, inter alia, Investigation Meetings, a Disciplinary Hearing and a right of appeal – followed fair procedures, in compliance with the Code of Practice on Grievance and Disciplinary Procedures. Therefore, for the reasons outlined above, I find that fair procedures were followed.

The Band of Reasonableness:

I must now consider whether there were substantial grounds justifying the dismissal. I note that, as per the Avoca Decision, it is not for the Adjudicator to decide if they would dismiss, nor does it matter that another employer might decide not to do so. What matters is if the Respondent acted as a reasonable employer in reaching that decision. I note also, inter alia, the findings in the O’Súird Case, particularly at paragraphs 89 to 97 inclusive, which endorse the Bank of Ireland Case and address the test for the determination of unfair dismissal on grounds of misconduct. I also note the findings in Frizelle v. New Ross Credit Union [1997] IEHC 137, which held that a decision to dismiss should be proportionate.

The Parties made submissions concerning the word “conduct”. I note that the UD Act refers neither to “misconduct” nor “gross misconduct”, but to the “conduct” of the employee. I note that R1 referred in detail to the Respondent’s Anti-Bullying, Harassment & Discrimination Policy. This policy outlines that the Respondent “will not tolerate bullying, discrimination or harassment of any kind”. I note that R2 also outlined that the Respondent has a zero-tolerance policy regarding sexual harassment and sexual assault. I note that R1 referred in her evidence to the scope of the Respondent’s Anti-Bullying, Harassment & Discrimination Policy, which applies both to the Respondent’s premises and off-site. I note that while both allegations against the Complainant were upheld, it was R2’s evidence that the sexual harassment incident on 15 September 2022 alone amounted to gross misconduct. I note that it was R2’s evidence that following the Disciplinary Hearing on 4 November 2022, she had lengthy discussions with R3 concerning, inter alia, potential outcomes and possible sanctions. I note that they considered lesser sanctions. I note that R2 stated that they have to maintain “a safe, healthy and inclusive working environment” for employees. R2 also stated that the Respondent concluded that trust and confidence in the Complainant as an employee had broken down and that the environment was not safe and healthy for employees. As a result, the Complainant’s employment was terminated. The Complainant did not appeal the dismissal. In the circumstances, I find that the Respondent’s ultimate decision to dismiss the Complainant fell within the “band of reasonableness”.

Conclusion:

For the reasons outlined above, I find that fair procedures were followed and that the Respondent’s ultimate decision to dismiss the Complainant fell within the “band of reasonableness”. In the circumstances, the Complainant was not unfairly dismissed.

For the reasons outlined above, I find that the Complainant was not unfairly dismissed.

Unfair Dismissals Acts 1977 – 2015, Gross Misconduct, Fair Procedures, Band of Reasonableness.