Complainant

Respondent

Anonymised Parties

Store Manager

Restaurant Chain

Complainant

Respondent

Anonymised Parties

Store Manager

Restaurant Chain

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-00012254-001

03/07/2017

The Complainant was employed as a Store Manager from 6th May 2014 to 26th February 2017. He was paid €683.80 per week. He has claimed that he was unfairly dismissed and has sought compensation.

On 10th February 2017 the General Manager received a complaint from an employee that the Complainant had threatened to cut her hours of work and had been going to her residence uninvited and causing a scene. She had been in a relationship with him but broke it off when she discovered that he was married with a family. The Respondent appointed an external HR Professional to investigate the matter. In the course of his investigation he learned that another employee had left because of alleged sexual harassment by the Complainant. This employee also alleged that there were other cases of sexual harassment perpetrated by the Complainant. The General Manager and the HR Practitioner met with the ex-employee who relayed the same details. It was found that the Complainant took advantage of his position to exhort sexual favours from his staff. The Complainant confirmed to the investigator that he offered accommodation to employees in order to have sex with them. There were also incidents of inappropriate conduct and preferable treatment to staff in order to curry favours from female staff. The Complainant was accused of unwelcome advances and offers of going to the cinema, restaurants or visits to the park. There were accusations of non-verbal conduct of a sexual nature including leering and making sexually suggestive gestures.

Following the completion of the investigation report the Respondent gave full and serious consideration to the matters in hand, the zero-tolerance policy of the company and the company position that sexual harassment is an act of gross misconduct. It was found that the Complainant’s acts constituted not one but a number of very serious incidents. There is a practice to dismiss persons found to have committed sexual harassment. It was found that his actions constituted gross misconduct. The company policy states, where an employee is involved in gross misconduct, the company may determine that the employee should be dismissed without reference to any of the stages of the disciplinary process. He was summarily dismissed and he was given the right of appeal which he did not avail of. The Respondent believed that he had broken the bond of trust. It is the store manager’s responsibility to provide a safe place of work. His actions caused anxiety and stress to the employees. The Complainant’s conduct placed the health and safety of the staff at risk and also had the potential to cause reputational damage. The Respondent had the original employee who had complained assessed by a reputable body and it was found that she was a credible witness and was still suffering from stress a year later. This dismissal was justified and fair. The claim is rejected.

On 14th February 2017 the Respondent’s General Manager informed the Complainant that an employee had made a complaint against him and that a HR Professional would be carrying out an investigation. No details of the complaint were disclosed. At the investigation the Complainant acknowledged that he had been in a relationship and it had come to an unhappy ending. There was never any conduct that amounted to sexual harassment. They did give each other loans and he gave her preferential treatment at work but it didn’t amount to gross misconduct. On 16th February the Investigator met with the Complainant and advised him to take one month’s pay and resign. The Complainant again sought details of the allegations but none other than the relationship was disclosed. On 17th February 2017 the Investigator again asked him to resign. On 26th February 2017 the General Manager met with the Complainant and summarily dismissed him. He later received his P45 and an undated letter of dismissal. Two months later he commenced as a sole trader driving a taxi earning €400 per week increasing to €500.On 26th May 2017 and in February 2018 a data request was made but no substantive reply was received.

It is his position that the allegations made against him concerning the employee fall short of sexual harassment. He has denied sexual harassment. The investigation report refers to other allegations of sexual harassment made against the Complainant but it does not contain the Complainant’s response. These allegations were never put to the Complainant to allow him to present his own case. The Respondent’s failure to allow the Complainant to rebut these serious allegations, especially in light of the severe penalty of a summary dismissal, amounted to a failure to afford him fair procedures as is required in the case law that was submitted. He was never given the reasons for the dismissal. He did not appeal the decision because the Respondent did not set out the reasons and did not name the person/position to make the appeal to. He is seeking compensation as is specified in Sec 7(2) of this Act. This dismissal was unfair in all respects and he has mitigated his loss to the greater extent as possible.

I note that upon receiving a complaint from an employee the Respondent carried out an investigation into the conduct and behaviour of the Complainant.

I note that the named employee and other employees and ex-employees gave statements to the Respondent alleging sexual harassment.

I note that the Respondent found that the Complainant’s conduct and behaviour was totally unacceptable.

I note that they found that he had improperly propositioned female staff, offered accommodation with a view to having sexual relations with them, visited employees at their homes uninvited, invited female staff to the cinema, restaurants and the park despite their protestations, spoke and conducted himself improperly at work with gestures, leering and comments about their appearance.

I note that the Respondent concluded that his actions were so serious, a breach of duty to the staff, that they constituted sexual harassment and that he could not continue in work any longer. They decided that in order to protect their employees they had no option but to implement their zero-tolerance policy and so they summarily dismissed him.

I note that they had the named employee assessed one year later by a reputable organisation that specialised in victimisation and victim support and she was found to be a credible witness.

I note that the Complainant has denied these allegations.

I note that the Respondent denied that they asked him to resign

I find that he has confirmed that he had a relationship with the named employee and that he gave her preferential treatment when they were together.

I find that he misled her about his marital status and confirmed to the hearing that he was married and that his family were living outside the country and that he was not separated.

On the balance of probability, I find that the Complainant’s conduct and behaviour was unacceptable and a dereliction of his responsibilities and duties in pursuit of his own self-satisfaction.

In doing so I find that he placed his staff at risk.

I find that the Respondent was obliged to act to protect their employees.

On the balance of probability, I find that his conduct amounted to sexual harassment.

Therefore, on the balance of probability, I find that the dismissal was substantively fair.

Procedural Matters

I note that the Respondent carried out an investigation into the complaints received.

I find that the Respondent did not make clear and precise allegations of sexual harassment against the Complainant.

I find that the Respondent failed to provide the witness statements to the Complainant.

I find that the Respondent failed to advise the Complainant of the seriousness of the situation and the potential outcome of dismissal.

I find that the Respondent failed to offer him the right to defend himself and the right of representation.

I find that the Respondent did not give the Complainant a copy of the investigation report.

I find that an investigation in itself should not constitute an accusation but rather a process to determine if the Complainant had a case to answer or not.

I find that once the Respondent concluded that the Complainant had a case to answer then the matter should have been escalated to a disciplinary hearing.

I find that he should have been warned of the potential outcome of the process that could lead to dismissal.

I find that the Respondent should have been given him the right to receive all statements of allegations made against him.

I find that he should have been given the right to defend himself and the right to be represented.

I find that the Respondent should have given him the right to confront his accusers and cross examine their statements.

I find that the Respondent should have given the reasons for dismissal.

I find that the Respondent should have provided him with the name of the person or position to make the appeal of dismissal to.

I find that the Respondent relied upon hear-say evidence and ignored the Complainant’s direct evidence.

I find that in the interests of fair procedure and natural justice demands that an oral hearing take place where evidence is presented directly and he has a chance to challenge it. What actually occurred was the Complainant was heard in person but those making the allegations were interviewed separately. In the recent High Court case Lyons v Longford Westmeath ETB [2017] IEHC272 Eager J. found that procedures adopted by the Respondent during investigation of the Claimant were flawed, both because they excluded legal representation and because they excluded cross examination on behalf of the employee. The Court focussed particularly on the right to cross examine, stating that where an investigative process can lead to dismissal; cross examination is a vital safeguard to ensure fair procedures. The Court went even further to state that fair procedures themselves “manifestly” include the right to confront and cross examine the individual who has made allegations against an employee.

I find that the Respondent handling of the dismissal from a procedural point of view was hopelessly flawed.

I find that the dismissal was procedurally unfair.

Therefore, I find that this renders the dismissal unfair.

I find that compensation is the appropriate remedy

I find that the Complainant has made reasonable attempts to mitigate his loss.

I find that the Complainant’s conduct and behaviour has contributed substantially to the dismissal and this must be reflected in the quantum of the award.

Unfair dismissal, procedurally flawed