ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00002707

Parties:

Complaint:

Date of Adjudication Hearing: 18th November 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 11^th April 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Acts. The complaint was scheduled for adjudication on the 18^th November 2016. The complainant is an accounts officer and the respondent is a public body.

The complainant attended the adjudication and was represented by MP Guinness, BL, instructed by O’Mara Geraghty McCourt solicitors. The respondent was represented by Brian Dolan, Peninsula Business Services and the respondent Chief Executive Officer and Head of HR attended as witnesses.

In accordance with section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant asserts that he was unfairly dismissed by the respondent on grounds of gross misconduct and seeks reinstatement. The respondent denies the claim and asserts that the dismissal was not unfair. The complainant has cerebral palsy and is wheelchair-bound. He was facilitated by the respondent with a personal assistance service to enable his access to the workplace.

Summary of Respondent’s Case:

The respondent asserts that the complainant was dismissed from its employment on the 1^st April 2016 and that the dismissal was both substantively and procedurally fair.

The Head of HR gave evidence. She outlined that the respondent is a public body and funded by a named parent Department. It has a head count of 85 with 74 whole time equivalents. The complainant was assisted by personal assistants, who were employed by a non-governmental organisation, which invoiced the respondent for their employment.

The Head of HR outlined that the matters that led to the complainant’s later dismissal were brought to her attention on the 9^th April 2015. This email was sent by a colleague who became aware of allegations involving the complainant. It was alleged that the complainant was engaged in abusive behaviour with his personal assistants, one of whom was on paid leave as a result. On the 10^th April 2015, the Head of HR wrote to the complainant to inform him that he had been placed on paid suspension and that an investigation would ensue as quickly as reasonably practicable. The respondent then prepared terms of reference for the investigation, which provide that the nominated investigator would meet the three care assistants to discuss their interaction with the complainant. In July 2015, the investigator issued his findings. The report refers to a number of issues, including a ritual whereby the complainant kissed the care assistants. She acknowledged that the investigator found that there was no evidence of sexual abuse or harassment in the workplace, but referred to his findings that the kissing had taken place. On the 4^th December 2015, the respondent invited the complainant to a disciplinary meeting in relation to allegations of gross misconduct of a sexual nature related to the workplace. The Head of HR outlined that the respondent was careful to keep the circle tight on this matter because of the issues at stake and because the complainant might be returning to work.

The matter proceeded to a disciplinary hearing on the 11^th December 2015, at which the complainant did not deny the allegations and said that he had not considered his actions to be wrong. The Head of HR said that she considered the complainant’s behaviour to be degrading and one named care assistant had said that his behaviour had been unwelcome. The Head of HR said that while this care assistant was not directly employed by the respondent, it was the respondent who paid for the care assistance service provided to the complainant. The care assistants could be considered as business contacts of the respondent.

On the 8^th January 2016, the Head of HR wrote to the complainant with her findings of the disciplinary hearing. She held that the actions of the complainant amount to sexual harassment and represent a gross breach of trust and confidence. Furthermore, she held that the actions were sufficiently connected to the workplace to amount to gross misconduct and concludes that the complainant should be dismissed with immediate effect. She said that she had reached the decision in relation to sanction after the disciplinary hearing. She considered that what the complainant had put forward at the hearing did not give her sufficient confidence that behaviour of a similar nature would not reoccur. She said that the respondent had no issue with funding the complainant’s personal assistance service, but the complainant’s actions had amounted to a breach of trust and confidence and a breach of this facility. She said that she had considered alternatives to dismissal, but having read through the minutes of the disciplinary hearing, she did not have sufficient confidence in the complainant for him to return to the workplace.

In cross-examination, it was put to the Head of HR that the disciplinary procedure requires there to be a formal complaint and that no formal complaint had been made in relation to the complainant. She replied that she had acted on the email from a colleague of the 9^th April 2015. This colleague had encountered the issue in her role with the company that provided care assistance to the complainant and she felt that the behaviour could occur in the workplace. The Head of HR commented that she had secured the services of the investigator on recommendation from other public sector bodies. It was put to the Head of HR that the terms of reference provide that it was for the investigator to say whether the matter should proceed to a disciplinary hearing and in this case, the investigator had held that there was no evidence of sexual contact or abuse of the care assistants in the workplace and that one care assistant had referred to her kissing the complainant in the workplace. The Head of HR replied that she did not accept that the reference to this care assistant kissing the complainant in the workplace covered the extent of the issues in the workplace, pointing to the issues addressed in the report. It was put to the Head of HR that an experienced, qualified investigator had found that there was no evidence of sexual harassment and that the respondent had ignored this finding, even though the disciplinary policy provided that it was the facilitator to instigate the disciplinary policy. The Head of HR replied that the decision to invoke the disciplinary policy was based on what had come to light in the report. She referred to the ritual kissing and there was a question to answer regarding unwelcome kissing. She accepted that this care assistant had not made a complaint and that she was not an investigator. In respect of alternatives to dismissal, the Head of HR said that the complainant had not seen any problem with the kissing ritual and this behaviour could occur with people other than care assistants. She acknowledged that there were no other complaints regarding the complainant’s behaviour.

The Chief Executive Officer gave evidence. She outlined that she had been in the role for two years and reported to a 15-member board appointed by the relevant Minister. She had been designated to hear the complainant’s appeal and allowed a barrister and solicitor to attend the appeal hearing. The complainant had sought to cross-examine witnesses, but the respondent did not have the means to contact one care assistant, while another agreed to provide a written statement. The complainant had not wanted this statement to be part of the appeal. At the appeal, the Chief Executive Officer had sought to give the complainant the opportunity to overturn the finding of dismissal, but his representative kept interrupting and challenged the procedure. She felt that the representative had sought to frustrate the process. The Chief Executive Officer said that in making her decision, she had reviewed everything and assessed it on its merits. She had regard to persons with disabilities, which is included within the mandate of the respondent. She had regard to the findings of the investigation report, in particular the second finding of there being a strong probability of the complainant’s grossly inappropriate behaviour with staff of the company and that he had breached his duty to them as their employer. She said that she had regard to the fact that the care assistants would attend the respondent’s workplace and that she had a duty of care to the care assistants.

On the 1^st April 2016, the Chief Executive Officer issued the outcome of the appeal where she upheld the finding of dismissal. She considered that the complainant had been given the opportunity to challenge the evidence of a named care assistant. The Chief Executive Officer concluded that the unwanted kissing constituted sexual harassment as the care assistant had not willingly participated in kissing the complainant. She was certain that similar issues arose with the other care assistants, but they could only go forward with the one complaint they had. She could not take the risk that the complainant would engage in similar behaviour with colleagues or visitors to the respondent workplace. She outlined that the complainant’s decision to employ male care assistants from then on would not override his propensity for sexual gratification. In deciding sanction, she outlined that she reviewed the whole case and looked for reassurances regarding future behaviour. She decided that the use of male care assistants was not enough and she did not have confidence as to the complainant’s future behaviour around both male and female colleagues. The complainant had brought the unwanted behaviour into the foyer of the workplace and there was no way of knowing where it would stop.

In cross-examination, the Chief Executive Officer said that she had not accepted most of the points of appeal. She had considered the repetition of the complainant’ behaviour to be unforgivable and commented that the investigator had made contradictory remarks. The investigator had been mistaken in finding that there was no sexual harassment in the workplace as some of the unwanted kissing had taken place in the foyer. It was put to the Chief Executive Officer that this care assistant had not complained; the Chief Executive Officer replied that this care assistant had raised the issue with the colleague who sent the email on the 9^th April 2015. This care assistant had also raised the issue in her written submission to the appeal. She said that she had taken account of another care assistant’s statement regarding events in the complainant’s home as this care assistant was linked to the workplace because she accompanied the complainant to work. She had also taken account of the unwanted kissing with the other care assistant, which had taken place in the foyer. It was put to the Chief Executive Officer that the evidence of one care assistant had not been part of the investigation or the disciplinary process; she replied that it was included in the investigation report. The Chief Executive Officer said that dismissal had been the only possible sanction because of the complainant’s behaviour in the foyer and the matters included in the statements of the care assistants.

In closing comments, the respondent outlined that in the event the claim of unfair dismissal succeeded, reinstatement was not an appropriate remedy in circumstances where one party to the employment relationship had concluded that trust and confidence had been broken. The respondent referred to the seriousness of the conduct and its effect on the victims, the care assistants.

Summary of Complainant’s Case:

The complainant outlined that he has worked for the respondent for 12 or 13 years. He had an excellent record with no issues prior to the issue that led to his dismissal. He said that he loved his job and that it gave him something to do. He outlined that a practice had developed with one care assistant where she would kiss him and he would kiss her. He believed it to be consensual and that he would have stopped had she asked him to stop. He outlined that since his employment ended, he had sought to set up his own accountancy and payroll firm, as he would find it difficult to find alternative employment. The complainant seeks the redress of reinstatement. It was submitted that this was an appropriate remedy in this case, as the complainant would not find alternative employment going forward, because of his disability.

In cross-examination, it was put to the complainant that he did not kiss a named care assistant in the workplace as he knew it was not appropriate; instead she kissed him. He replied that he never asked this care assistant to kiss him and looking back, he accepted that it had been inappropriate. He said that the care assistants had been found other roles and he now employed male assistants.

Findings and Conclusions:

The complainant’s employment with the respondent commenced on the 28^th October 2003 and his dismissal was confirmed on appeal on the 1^st April 2016. The grounds of dismissal were gross misconduct, namely his conduct towards care assistants employed by a company established to assist him in his personal care and to attend work. The complainant has cerebral palsy and is confined to a wheelchair.

In 2003, the respondent entered into an agreement to assist and pay for personal assistance to the complainant. A letter of the 13^th November 2003 outlines that the complainant recruits and manages the care assistants. A limited company was later established to formally employ the care assistants and to invoice the respondent for payment. This arrangement continued without issue until April 2015.

It was not entirely clear from the respondent the nature of its involvement in the limited company. Aside from the complainant, at least one of the directors was also an employee of the respondent. This was the colleague who emailed the Head of HR on the 9^th April 2015.

The matters at the heart of this case are serious ones. From the note provided from one care assistant, a ritual developed with the complainant where he would give her kisses on the cheek in the morning and she would kiss him on the cheek on collecting him from work. She states that this was completely unwanted. The note states that she sought to stop this behaviour in March 2015 and the complainant later informed her that she needed to find alternative employment. The investigation report contains a note from another care assistant where she confirms that no inappropriate conduct occurred in the workplace and that, while in his home, the complainant asked her to facilitate masturbation. She describes this behaviour as grossly inappropriate and offensive.

This case also presents stark consequences for the complainant. He was provided with assistance to enable him attend work with a generous support package of personal assistance. If the dismissal is upheld, the complainant says that he will never work again because of his requirement for a high level of living support to access the workplace.

The respondent’s Dignity at Work policy states it will provide a workplace free from bullying, harassment and sexual harassment from co-workers, clients, customers and other business contacts. It provides that the scope of the policy extends beyond the workplace to work-related social events. The policy refers to the statutory definition of harassment and that of sexual harassment contained in the Code of Practice on Harassment. This provides that sexual harassment is “any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.” The policy sets out both informal and formal procedures to follow. It provides that an investigation will be carried out by an independent facilitator. The policy states “if the facilitator decides, on the basis of the information collected, that the complaint is well founded and the person complained of has a case to answer, the matter will be progressed further through the [respondent]’s Disciplinary Procedure.” The policy designates the Head of HR as the contact person.

The disciplinary policy provides that an investigation precedes any disciplinary process and that the policy will be administered in a fair and reasonable manner. It provides four levels of sanction, up to dismissal. It gives a non-exhaustive list of examples of serious misconduct or grave breaches of discipline.

In the 2013 Employer’s Handbook, the respondent re-produces the disciplinary policy and provides a lengthier list of examples of what it terms gross misconduct. This includes non-compliance with the respondent’s Equal Opportunities or Bullying and Harassment policies. The handbook also includes a bullying and harassment policy, which states that Board members and line managers should “be vigilant for signs of bullying/harassment and take action before a problem escalates.” I could not find any other reference to “business contact” outside of the references contained in the Dignity at Work Policy.

The respondent engaged an independent investigator to interview the complainant, the colleague who sent the email of the 9^th April 2015 and the three care assistants. The terms of reference of the investigation state that it relates to “allegations of inappropriate (potentially sexual) abuse of personal assistants”. It further states that it will “ask [the interviewed care assistant] if she has experienced any behaviour like this on our premises.” In July 2015, the investigator submitted a preliminary report to the respondent. The report gives an account of the investigator’s interaction with the five witnesses as well as transcripts or statements of their evidence. It concludes that “no evidence exists to suggest or support any concerns that [the complainant] acted or behaved in a manner that would or could be regarded sexual abuse or harassment in the workplace of [the respondent].” It further concludes that “strong evidence exists to indicate that based on the balance of probabilities that [the complainant] did act in a grossly inappropriate manner with staff in his charge and for who he owed and neglected his duty of care to them while they were employees of [the Company].”                                                                                                                                                                                                                                                                                                                                                                                                      

In a letter of the 4^th December 2015, the respondent invited the complainant to attend a disciplinary meeting. It states “whilst the investigation report stated that no evidence exists to suggest that you acted or behaved in a manner that would or could be regarded as sexual abuse or harassment in the workplace, it is our view that the subject matter of the investigation is sufficiently connected to the workplace so as to permit the invocation of the [respondent] Disciplinary Procedure.” Furthermore, the letter outlines “The [respondent] alleges that the allegations of sexual harassment borne out in the investigation report, if proven, would represent a gross breach of trust and confidence in your position with [the respondent] as it would amount to acts of sexual harassment in respect of persons who facilitate or have facilitated your work and position with [the respondent] and “Notwithstanding the findings of the Investigation report it is alleged that you have been engaged in acts which may be construed as sexual harassment whilst in or about the [respondent] workplace, namely the practice of “ritual goodbyes” as alleged by [a named care assistant] which, if proven, would amount to unwanted contact of a sexual nature.”

The disciplinary hearing took place on the 11^th December 2015 (although the hearing notes contain typographical errors stating the date of the hearing as the 12^th December and the year as 2012). The Head of HR chaired the meeting and was accompanied by a HR advisor. The complainant attended and was accompanied by a colleague. In the minutes, the complainant acknowledges what he did was wrong. The Head of HR outlines that the respondent needed to assess risk in the workplace as a result of the findings of the investigation report. The complainant outlines that the kissing ritual stopped when the care assistant asked that it would stop. The complainant’s colleague outlined that the other care assistant said she would kill the complainant if he repeated his inappropriate statement to her. In reply to a question from the Head of HR regarding the likelihood of these events happening again, the complainant replied that he knew it was wrong and that he had attended counselling. His colleague outlines that the complainant will now only use male care assistants and makes the following statement: “Behaviour became normalised and then we forget that it was not right. Then all of a sudden this happens. I think it’s very serious but I am not sure it’s a hanging offence.” The Head of HR then asks the complainant what he understands by the term “sexual harassment” and he provides a definition.

The respondent issued the letter of dismissal on the 8^th January 2016. In the letter’s findings, the Head of HR acknowledges that the complainant had accepted that his actions were wrong, The Head of HR finds that there had been a pattern of ritual kissing and that because the care assistants were provided to facilitate the complainant’s access to its workplace, it was entitled to assess whether this amounted to sexual harassment. The Head of HR concludes that the ritual kissing amounted to sexual harassment on four grounds: 1) the investigator’s finding that this care assistant had said it was inappropriate and must stop, 2) the complainant’s admissions, 3) the evidence that the care assistants were unwilling to complain as they may lose their jobs and 4) the evidence that a care assistant lost her employment when she did complain. The Head of HR next addresses the risk of repeated behaviour, She states “in this regard, I am particularly struck by the evidence given by your representative, evidence which you did not contradict so I assume it must be correct, that you no longer employ female personal assistants since these matters have come to light, and that you now only employ male assistants. The reason for this change in personnel was so as to avoid the potential risk of other female assistants being subjected to the same or similar types of behaviour in the future when undertaking duties for you. I have therefore reasonable concluded, that there is a continuing risk of other females being subjected to sexual harassment by you, and that is the reason you have taken the precaution of employing only male assistants, and that this also poses a risk to [the respondent] and out ability to create a work environment free from harassment in any form.” The Head of HR concludes that the complainant’s behaviour is sufficiently connected to the workplace and amounts to gross misconduct. Furthermore, the Head of HR finds that the conduct in respect of the care assistants amounts to a breach of trust and confidence of his employment and amounts to a substantial ground to justify dismissal. The Head of HR outlines that she has taken account of the complainant’s length of service and his excellent record, but that this does not mitigate his conduct to the extent to consider an alternative to dismissal. She concludes: “your conduct is such that no employer would reasonably expect to continue with your employment and the decision to dismiss is reasonable in all the circumstances.”

In correspondence of the 20^th and 26^th January 2016, the complainant appealed the respondent’s decision to dismiss him. In advance of the appeal hearing, the respondent received submissions from the investigator and a written statement from one of the care assistants in response to questions put on behalf of the complainant. The appeal hearing was held on the 11^th March 2016 and the respondent compiled a minute of the meeting, circulated to the complainant. The respondent issued the appeal outcome on the 1^st April 2016. This concludes that the complainant’s conduct is sufficiently connected to the workplace and amounts to gross misconduct. It further finds that the complainant’s treatment of the care assistants amounts to a breach of mutual trust and confidence, and is a substantial ground to justify dismissal. The letter of the 1^st April 2016 states that as the complainant’s care assistants facilitate his participation in the workplace, they fall within the respondent’s Dignity at Work policy. The letter also acknowledges the complainant’s clean disciplinary record and asserts that the complainant was provided with fair procedures and the right to challenge the evidence of the care assistants.

In submissions, the respondent relies on Pay v United Kingdom [2009] IRLR 139 and Flynn v Power [1985] IR 648 in relation to the right of an employer to dismiss an employee because of matters outside of the workplace. Pay v United Kingdom relates to the dismissal of a probation officer who worked with convicted sex offenders and who was also a director of a company distributing sado-masochism products. The European Court of Human Rights concluded that his dismissal was not disproportionate because the employee had not accepted the employer’s view that his behaviour could be damaging to the employer and he would not alter his connection with the company. Flynn v Power predates the Employment Equality Acts. In Flynn, the High Court upheld a determination that a teacher’s dismissal was not unfair in circumstances where she was dismissed because of her relationship with a man married to someone else and for having a child with him. The school had asked the teacher to end the relationship and considered that her situation and its public knowledge in a small town contravened its religious ethos.

As noted above, there are serious and stark issues to be determined in this case. There is no doubt that the respondent found itself in a challenging position on receipt of the email of the 9^th April 2015 and sought to address it by way of investigation and both a disciplinary and an appeals process, which concluded on the 1^st April 2016. In making the following observations and findings, I do not for one moment condone the actions of the complainant, nor do I make light of them. Aside from sexual immaturity, his behaviour represents a misuse of his position as both the client of the care assistants and as their employer, via the company.

Having considered the oral evidence and the documentation furnished by the parties, I make the following findings and observations. There are two sets of complaints made of sexual harassment against the complainant. First is the ritual kissing that occurred both in the complainant’s home and in the workplace. The second is the unsavoury request put to at least one care assistant in the complainant’s home. Against this background, the complainant has worked for the respondent since 2003 with no performance or disciplinary issues coming to light. There was absolutely no suggestion of any similar misbehaviour of any degree with any colleague. It is clear that the ritual kissing was unwelcome by the care assistants, in particular the named care assistant who worked with the complainant between 2009 and 2015. The respondent became aware of the complainant’s behaviour following an email sent to it on the 9^th April 2015 by one of its employees, who was also a director of the company employing the care assistants. I note from the investigation report and the investigator’s meeting with this employee that she had observed the kissing taking place in the respondent’s foyer. She apparently had no cause to be alarmed by the behaviour she observed. On foot of a later complaint from a care assistant, she sent the email of the 9^th April 2015 to the respondent. There was some criticism in the minutes of the disciplinary hearing of this colleague sending the email of the 9^th April 2015, but she was entirely correct to raise the issue with the respondent. Another thing to note in respect of the ritual kissing that it was the care assistant who kissed the complainant in the workplace and most of the ritual occurred in the morning, where the complainant was the apparent instigator. There is little to provide in context or in mitigation for the request made by the complainant to at least one care assistant (the one reference to this request in any of the documentation provided by or via the investigator is the statement at page 78 of the respondent’s booklet). The complainant’s act was clearly wrong. I note, however, that it was made in circumstances where the care assistant was not a work colleague in the ordinary sense. The care assistant assisted with personal hygiene, washing and dressing of the complainant in the setting of his home, outside of work hours. This is the context in which the complainant very certainly crossed the line and acted inappropriately. I note that this provoked a strong reaction from the care assistant in question; the colleague of the complainant who attended the disciplinary hearing reports that the care assistant said she “would kill him if it happened again.”

I note that the investigation concluded that there was no evidence of sexual harassment in the workplace and that it did not invoke the disciplinary procedure. Nevertheless, the respondent believed that it was appropriate to invoke the disciplinary policy. This approach can be questioned because the only person who interviewed the care assistants was the investigator and despite this, the respondent went beyond his conclusions. On balance, however I find that the respondent were correct in taking disciplinary action because of the seriousness of the issues. The question to now decide is whether the sanction of dismissal was reasonable in the circumstances. On foot of one care assistant demanding that the ritual kissing stop, the complainant did so and he or the company decided to now only employ male care assistants. The complainant says that the three existing female care assistants were found alternative roles. There are two issues to consider: one is how the respondent treated the decision of the company or the complainant to only employ male care assistants and two, how the respondent assessed the complainant’s record while in its employment.

I find that it was unreasonable for the respondent to use the complainant’s decision to only employ male care assistants against him. In the disciplinary finding, the Head of HR refers to this showing that there is a “continuing risk” to female colleagues. At the adjudication hearing, the respondent referred to the complainant’s “propensity” for sexual gratification. I do not believe that the respondent has reasonable grounds for either conclusion. I reach this finding for the following reasons. First, I note the context in which the complainant’s acts took place. This was mainly in his home, involving care assistants delivering personal care to him. While it certainly spilled over to the foyer of the respondent, it stemmed from a pattern of interaction between the complainant and the care assistants that developed in his home. Following the care assistant’s complaint in March 2015, the complainant desisted from the kissing ritual and took the precaution of hiring only male care assistants. Second, in the years between 2003 and 2016, there were no issues, of any degree, with the complainant’s behaviour with colleagues or other parties. The only issues arose from the complainant crossing the line in his dealings with female care assistants. This was addressed, first by the complainant desisting from ritual kissing and second in the employment of male care assistants. In these circumstances, it is unreasonable to determine that the complainant posed a continuing risk or had a propensity for any such behaviour. I also note that aside from the kissing given to the complainant in the respondent foyer (and observed as not problematic), there was no evidence of any other inappropriate behaviour, of any degree, in the workplace.

The appeal outcome also asserts that the complainant’s actions amount to a breach of mutual trust and confidence to such an extent that it is a substantial ground for dismissal. It is clear that the complainant acted wrongly, in particular in circumstances where the respondent provided generous appropriate measures to enable the complainant to participate in the workforce. I appreciate how the respondent is affronted by the complainant behaving in the way that he did. In the circumstances, however, I find that the sanction of dismissal was not warranted or reasonable. I go back to how the complainant crossed the line within his own home, in the context of personal care being given to him. This spilled over, to a relatively minor extent, in the workplace where the complainant was kissed. While I accept the respondent was affronted by the complainant’s actions, it does not amount to a breach of the term of mutual trust and confidence in the contract of employment.

Taking these findings together, I find that the complaint is well founded and that the dismissal was unfair. In respect of redress, the complainant seeks reinstatement, while this is resisted by the respondent because the dismissal relates to an issue of trust and confidence.

Section 7 of the Unfair Dismissals Act provides as follows:

7. Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) If the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under s. 17 of this Act) as is just and equitable having regard to all the circumstances, …

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,…

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.”

In assessing redress, I agree with the respondent that reinstatement is not an appropriate remedy. I reach this finding because the respondent is entitled to take action to protect the interests of staff or any other party, including any care assistant, if any other similar behaviour occurs again, even to a lesser degree. Reinstatement would not sufficiently address the acts of the complainant. Moreover, compensation is also not an appropriate remedy. I say this because of the degree of support required for the complainant to access employment and his successful record with the respondent. This is a case about access to the ability to work as opposed to access to compensation.

I, therefore, find that the appropriate remedy is re-engagement pursuant to section 7(1)(b) of the Unfair Dismissals Acts. I reach this finding on the basis that the dismissal is unfair in circumstances where the complainant now receives personal care from male care assistants and has not shown any continuing risk or propensity to any colleague or anyone else in the workplace. In ordering re-engagement, I have regard to the defence given to the complainant by a named female colleague at the disciplinary hearing, who said that while these issues are very serious, they were not “a hanging offence”. I have said that the respondent was correct to deal with these issues as serious disciplinary issues, but I believe we are in the territory of a final written warning.

In framing the terms of re-engagement, I am cautious to avoid stepping into the shoes of the employer. As Mary Redmond held in “Dismissal Law in Ireland” (second edition), at 23.15 “In such cases the EAT must be particularly careful to avoid stepping into the employer’s role which would be at variance with its role in determining the fairness or otherwise of a dismissal…” I also note the following extract from the same edition (at 23.13): “Re-engagement may have disciplinary connotations where it is, by direction of the EAT, to be regarded as a final written warning to the claimant. This happened in O’Connell v CTF Ireland UD 588/1991 where the claimant had a record of absenting himself from the workplace. The EAT ruled that his record should be monitored for 6 months and, if found satisfactory at that time, should revert back to normal. “

In framing redress in respect of re-engagement, I note the approach of the Employment Appeals Tribunal in Brennan v Institute of Technology Carlow [2012] E.L.R. 49. I find that the complainant is entitled to retain his continuity of service from the commencement of his employment in 2003. I find that he should be re-engaged within 42 days of the date of issue of this adjudication report. I find that on his return to work, he should be subject to probation review meetings provided at 4.5 of the Employer’s Handbook and that the complainant should be subject to a Final Written Warning for a period of 24 months from the date of re-engagement. I note that 8.12.4 of the same Employer’s Handbook permit a Final Written Warning to remain on file for more than 12 months where there are exceptional circumstances; I find that those circumstances apply in this case. As the complainant is to be re-engaged by the respondent, he is not entitled to recover for financial loss from the date of dismissal to the date of re-engagement.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00003707-001

I find that the complaint made pursuant to the Unfair Dismissals Acts is well founded and I order re-engagement on the following terms: the complainant shall be re-engaged by the respondent to his role as Accounts Officer within 42 days of the date of this report; that his continuity of service shall be maintained from the 28^th October 2003; that the complainant shall be subject to a Final Written Warning in line with the respondent’s disciplinary policy from the date of his re-engagement for a period of 24 months and that he should be the subject of probation review meetings in line with the respondent’s Employer’s Handbook during this time.

Dated:  07th July 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Unfair Dismissal Act

Sexual harassment

Re-engagement

Disability

Cerebral palsy