UDD1967

The Adjudication Officer decided that the Respondent had been unfairly dismissed and awarded the sum of €24,000 in compensation.

Background

The Respondent commenced employment with the Appellant on 1^stFebruary 2001 and he was dismissed by letter dated 10^thNovember 2017. It is common case that the Respondent had an unblemished record of employment with the Appellant.

On 18^thOctober 2017 the Respondent, when walking past a student who was on placement for work experience in the Appellant store, touched the student on her lower back.

The Appellant held an investigation meeting with the Respondent on 26^thOctober. The Appellant subsequently convened a disciplinary meeting on 6^thNovember 2017.

The Appellant in a letter dated 10^thNovember 2017 advised the Respondent that he was being dismissed on the basis that it had been found that his actions “on Wednesday October 18^thlast whereby you touched Ms O’N, a minor, inappropriately constitute gross misconduct.” That letter also advised the Respondent that he could appeal the decision to Mr JO’C, an external party.

The Respondent did make an appeal to Mr JO’C who convened a hearing on 29^thNovember 2017. Mr JO’C, in a decision dated 2^ndJanuary 2018, found that the “dismissal was fair” and upheld the decision to dismiss.

Summary position of the Appellant

The Appellant submitted that, on 18^thOctober 2017, the Respondent walked down an aisle in the store while carrying objects in both hands. He passed a co-worker on his right hand side and tapped her on the head with the item in his right hand. As he continued to walk down the aisle, he passed a student on work placement. She was kneeling at the time dealing with a lower shelf. The Respondent moved the item in his left hand to his right hand, moved over towards the student and rubbed her exposed skin where her shirt had lifted by virtue of the position she was in.

The student was distressed and a complaint was lodged with management of the Appellant, initially by the co-worker who had been working on the same aisle as the student.

The Respondent was called to a meeting that day with Mr RC and Mr SG and further then with MR AM who were carrying out the investigation into the alleged incident.

On 19^thOctober, a letter issued advising the Respondent that he was being suspended from work based on initial review of CCTV footage and that the investigation phase was to commence. That letter was signed by Mr AM and indicated that Mr AM took the decision to suspend the Respondent.

The Respondent was supplied at that time with a copy of a statement from the student and from the co-worker who observed the incident.

An investigation followed with Mr AM and following its completion the matter was handed over to a disciplinary meeting convened by Mr RC. No written findings of the investigation issued and no detail of any such findings were conveyed to the Respondent.

The disciplinary matter was handled by Mr RC and the matter was dealt with on the basis of serious and gross misconduct.

Following the disciplinary process it was found that the Respondent had been in breach of the company’s rules and his contract of employment. Ultimately, a decision was made that resulted in the dismissal of the Respondent.

The age of the student and the age of the Respondent were factors in the decision to dismiss as was the fact that the student was not an employee but a work experience student.

The young person was unable to return to the shop for many months and has been in receipt of counselling as a result of the incident.

The Respondent was represented throughout the procedure by his legal adviser. He was provided with an appeal of the decision to dismiss him and that appeal found that the decision to dismiss was fair.

Summary of evidence on behalf of the Appellant

CCTV of the incident was played before the Court with the consent and at the request of both parties to the matter.

The Court heard testimony from AM, the owner of the Appellant shop. He said that on the 18^thOctober 2017 a member of staff, GB, had been approached by AO’N, a student on work placement, to say that she had been touched on her lower back by the Respondent. The student was emotional and upset.

AM telephoned the student’s school and made them aware of the incident and the student’s parents came to the shop. AO’N and GB made written statements describing the event.

AM and RC, a manager, met with the Respondent and decided to suspend him with pay having spoken to GB and AO’N and having looked at the CCTV footage of the incident.

AM carried out an investigation with MO’BW, an external consultant. AM and MO’BW reviewed the CCTV footage with the Appellant and advised the Appellant that they would ‘go ahead with sexual harassment and serious misconduct’. AM stated that the Respondent did not seem to understand that there was an issue.

AM stated that he and RC took the decision to dismiss after RC had carried out a disciplinary procedure following the investigation. He subsequently clarified in evidence that he, RC, MO’BW and another external consultant, TS, took the decision to dismiss the Respondent. That decision took account of what Mr AM learned in the investigation as well as the content of the disciplinary procedure carried out by RC. RC determined in the disciplinary procedure that serious misconduct had taken place.

AM stated that the decision to dismiss followed consideration of alternatives to dismissal including suspension and the issuance of a final written warning but there was no understanding on the part of the Respondent that he had done something wrong.

Under cross examination AM clarified that initially GB had come to him about the incident on 18^thOctober and that he had gone to AO’N. He confirmed that the Respondent’s initial reaction when approached was to apologise for the incident. However, the decision to suspend the Respondent was taken on the basis that it could not be said that it would not happen again. AM clarified to the Respondent at the investigation stage that the Appellant was ‘going ahead with sexual harassment’.

He clarified that he would always be the person to decide upon a dismissal and he did not know if the Respondent was aware of that.

AM supplied minutes of his investigation meeting to RC who carried out the disciplinary procedure.

Under questioning for clarification purposes by the Court, AM stated that the decision to dismiss the Respondent followed discussion with AO’N and her mother. He said that if they had said ‘it is fine’then ‘that would have been that’. Mr AM state that ‘sometimes you like to smooth things over’.

AM said that the matter of sexual harassment was put to the Respondent in the investigation meeting and that the minutes of the meeting as submitted were inaccurate in that there is no record of such an event recorded in the minutes. He confirmed that as he handed the matter over to RC he discussed the investigation with him and gave him the minutes.

He confirmed his view that if the Respondent had touched AO’N elsewhere than her lower back it would not have amounted to sexual harassment. He confirmed that no complaint of sexual harassment had been made against the Respondent and that he was unaware of any statutory definition of sexual harassment or any definition of the term in any other context. He regarded touching of a person in a ‘certain area’to be sexual harassment.

AM stated that he did not issue written findings of his investigation and that he handed the matter over to RC for a disciplinary process to be carried out.

RC, the manager who carried out the disciplinary procedure, gave testimony to the Court. He said that he became aware of the matter on the 18^thOctober and that he had met with the Respondent in the company of SG, another manager, initially on the day. He and AM later met again with the Respondent and they took the decision to suspend the him.

He said that AM, at the conclusion of the investigation and as he handed over the matter, advised him, RC, that in his, AM’s, view there had been sexual harassment.

RC said that he looked at the CCTV footage and convened a disciplinary meeting with the Respondent. He concluded that the event had been pre-meditated. He concluded that the touching of the student was of a sexual nature, that the Respondent sought sexual gratification and that his actions were intentional rather than random. He concluded that the part of AO’N’s back which the Respondent touched is not normally on show and that was the attraction for the Respondent.

He said that at the end of his process he told AM that a sanction should be proceeded with. The decision on the form of sanction was the product of engagement involving himself, AM and two external consultants.

Under cross examination RC confirmed that he had been party to the decision to suspend on the day of the event and this decision reflected the severity of the event.

He confirmed that when he commenced the disciplinary process, he understood that AM had already decided that sexual harassment had occurred.

RC accepted that there was a distinction between ‘inappropriate behaviour’ and ‘sexual harassment’.

RC accepted that the letter which issued to the Respondent on 10^thNovember 2017 was incorrect when it asserted that he, RC, had taken the decision to dismiss the Respondent. He accepted that the decision was taken by AM following engagement with him, RC, and external consultants. RC, who acknowledged that he had never put the charge of sexual harassment to the Respondent, was unable to say why the letter of dismissal made no reference to sexual harassment as the form of serious misconduct which was the reason for the dismissal.

He stated that the reason for dismissal was sexual harassment and this amounted to the ‘highest’ form of serious misconduct and as such amounted to gross misconduct as advised in the letter of 10^thNovember.

RC accepted that the Respondent had always stated that he intended to touch the student on her bare skin because his hands were cold and as a joke or prank. He said however that he was satisfied from his viewing of the CCTV footage that the actions of the Respondent were sexual in nature. He asserted in evidence that the intention of the Respondent was ’key’and that the Respondent intended to sexually harass the student.

Under questioning for clarity from the Court, RC stated that it was his belief at the time that the Respondent had sexual intent and that sexual gratification was sought by the Respondent. He stated that the CCTV footage was the primary basis upon which he concluded that the Respondent had sought sexual gratification.

RC stated that he took account of the long service of the Respondent and the ‘once off’ nature of the event but decided that the severity of the event warranted dismissal.

RC did not recall advising the Respondent during his disciplinary meeting that the matter at issue was sexual harassment. He confirmed that he had never put the accusation of sexual harassment to the Respondent at any time. He agreed that it was not fair to have failed to put the accusation to the Respondent.

RC stated that the pre-meditated nature of the event was a significant factor. He clarified that the Respondent had transferred an object from one hand to the other immediately before touching the student and that this was the basis for a conclusion that pre-meditation was involved. He agreed that he had never put the proposition of pre-meditation to the Respondent at any time.

RC stated that he had no knowledge of statutory or other definitions of sexual harassment and that he regarded unwarranted touching as sexual harassment.

Summary position of the Respondent

The Respondent submitted that on the 18^thOctober 2017 he momentarily touched a work experience student with the back of his hand in passing. His hand was cold from working at the butchery department. He submitted that the entire incident was captured on CCTV and was intended as a friendly joke or prank. He encouraged the Court to review the CCTV footage of the incident.

He was required to attend a meeting with RC and SG, managers of the Appellant. He was shocked and distressed to learn of the issue and immediately offered to apologise to the student.

A second meeting was held that day with RC and AM and he was suspended with pay at that meeting. He was not represented at either of these meetings.

By letter dated 19^thOctober he was advised that his suspension was based on a review of CCTV footage. He was also advised that an investigation phase was to commence.

He was provided with a statement given by the student and that of a co-worker. A meeting took place on 26^thOctober. No further steps were taken or communicated to the Respondent in the investigation stage. He was not advised of the outcome of the investigation.

The matter was then ‘handed over’ to RC and the Respondent was invited to a disciplinary meeting with RC on 6^thNovember. On or about that date he was provided with a copy of a petition which had been handed to the HR department of the Appellant and which supported him and his character.

He was dismissed by letter dated 10^thNovember 2017.

The Respondent submitted that he was dismissed in breach of fair procedures and natural justice and in the absence of substantial ground justifying his dismissal. He submitted that the conduct of the employer did not fall within a band of reasonableness.

The Respondent submitted that he had not been provided with an outcome to the investigation phase and was unaware until his hearing at the Workplace Relations Commission in respect of the within complaint that his dismissal arose from a conclusion that he had sexually harassed the student. He submitted that his conduct on 18^thOctober 2017 could not reasonably be found to have amounted to conduct as defined at Section 14A of the Employment Equality Act, 1998 as follows:

• ‘References to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,…..’.

• ‘Where any form of unwanted verbal, non-verbal or physical conduct of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment’.

• ‘The Code of Practice on Sexual Harassment and Harassment At Work S.I. No. 78 of 2002 gives as examples of forms of behaviour which can constitute sexual harassment, these include: unwelcome sexual advances, propositions or pressure for sexual activity. It includes sex-based conduct that denigrates or ridicules or is intimidatory, such as derogatory or degrading abuse, or insults which are gender-related.’

The Respondent submitted that his conduct could not reasonably be found to amount to gross misconduct and in any event submitted that the Appellant’s disciplinary procedure did not permit such a finding given that it referred only to conduct which amounts to serious misconduct.

He submitted that the fact of his suspension which was set out in a letter dated 19^thOctober 2017 from AM and therein asserted to be imposed on order to‘ensure no similar behaviours occurs during this investigation’ was evidence of pre-determination by AM which conducted the investigation.

Summary evidence on behalf of the Respondent

Mr JD gave evidence on his own behalf.

He stated that he barely touched the student on 18^thOctober 2017. He said that it was a ‘spur of the moment’event and that it arose from the fact that his hand was cold as a result of the fact that he had been working in a cold environment. He stated that there had been no sexual intent whatever associated with what he regarded as a joke.

He said that at 4.15pm that day he was asked to attend at the office where he met RC and SG. He had no idea in advance what this matter related to. When advised of the issue he had been shocked and immediately offered to apologise. He admitted that he touched the student deliberately and advised both managers why he did it.

He said that he was suspended following another meeting with AM and RC.

He stated that he never received an outcome from AM’s investigation and that he could not recall that sexual harassment was mentioned or raised at the disciplinary procedure conducted by RC.

He stated that he never knew that the decision to dismiss him was taken by a number of people in consultation with each other. He had understood that he had been dismissed by RC following the conduct of a disciplinary hearing.

He stated that he appealed the decision to JO’C and gave eleven grounds for his appeal. He stated that JO’C did not address his grounds of appeal in any way.

Discussion and conclusions

The Court has given careful consideration to the submission and evidence of the parties, including CCTV footage which the Court viewed at the request of both parties.

The Court notes that the Appellant employment is reasonably small albeit up to 60 staff are employed therein. That fact may inhibit the capacity of the Appellant to carry out investigation and disciplinary procedures which accord with what might be possible in larger enterprises in structure and consequent transparency and fairness. This inhibition does not however relieve the Appellant of the burden of ensuring that, as far as is practicably possible, the procedures which are employed to investigate and consider disciplinary sanctions are as fair as possible and in conformity with the requirements of natural justice.

The Court notes that, at the material time, the Appellant employed a number of managers and also engaged external consultants in various roles.

The Appellant however has made submissions and given evidence which demonstrates that AM was involved in the process which led to dismissal at every stage. He met the Respondent on the day of the event and also spoke to the student and the staff member who witnessed the event. Following that interaction AM, together with RC, suspended the Respondent in order to ensure such an event would not recur while an investigation took place. An investigation then commenced which was conducted by AM, albeit it was clarified at the hearing of the Court that MO’BW also took an active part in the investigation. That investigation did not conclude with the issue of findings or any communication with the Respondent. Rather it concluded with an interaction between AM and RC wherein AM set out that he had decided that sexual harassment had occurred. RC then undertook a disciplinary process wherein, by his own evidence, no charge of sexual harassment was put to the Respondent. That procedure concluded, not with a decision by RC, but rather with engagement between RC, AM and two external consultants which resulted in a decision to dismiss; and further to the issue by RC of a letter advising the Respondent that he, RC, had decided to dismiss the Respondent.

RC’s role appears to have included an involvement in the decision to suspend with pay, the conduct of a disciplinary hearing and participation with others in a decision to dismiss.

MO’BW, an external consultant, appears to have been part of the investigation phase with AM as well as being a party to the engagement which led to the decision to dismiss.

A further consultant, TS, also appears to have been party to the decision to dismiss the Respondent.

The Court notes the submission of the Respondent that the appeal procedure convened by JO’C, an external consultant, did not address the grounds of appeal presented. It is not for the Court to substitute itself for the party who heard the appeal or to review the quality of that appeal in terms of consideration of grounds presented by the Respondent. The Court does however note that JO’C made 15 findings. None of those findings were to the effect that JO’C concluded that sexual harassment had taken place. Nevertheless, JO’C found that the dismissal was fair.

This detail of the procedure which emerges from the evidence and the submissions of the Appellant, raises significant issues as regards fairness. It is clear that the procedure offered no transparency to the Respondent as regards the roles of various actors in relation to the investigation of the matter and certainly no transparency as regards the identity of the ultimate decision makers in terms of sanction to be applied. It is clear as a result that the Respondent was never provided with the opportunity to address those persons who would ultimately participate in and contribute to the decision to dismiss him.

It is clear to the Court, from the evidence of RC, that the Respondent was never put on notice in the disciplinary phase that the investigation was focussed on a proposition that he was guilty of sexual harassment on the basis that this had been the unannounced conclusion of the investigation phase. Neither was he put on notice in the disciplinary phase that the question of whether he sought sexual gratification was significant or that the degree to which he pre-planned the interaction with the student would be a key matter. It follows that he was never provided in that process with the opportunity to respond to the charge of sexual harassment or to address questions of sexual motivation or pre-planning.

The Court has reviewed the CCTV footage of the incident. The Court can see that a reasonable employer may have concluded that the behaviour of the Respondent towards the student was inappropriate. The Court notes that RC, in evidence, acknowledged that inappropriate behaviour is different to sexual harassment.

The Court does not have the role of substituting its own judgement for that of the employer as regards the guilt or innocence of the Respondent. The Court does however note that no complaint of sexual harassment or behaviour of a sexual nature is submitted to have been made to the Appellant.

The Appellant has submitted and given evidence to the effect that its conclusion as regards the occurrence of sexual harassment came from the assessments of AM and RC, neither of whom were, on their own evidence, familiar with statutory or other definitions of sexual harassment.

It is appropriate therefore for the Court to give consideration to the evidence upon which the Appellant’s conclusions as regards sexual harassment are based if only to consider the degree to which the evidence available to Appellant supported the conclusions reached. Having reviewed that evidence, the Court can find no basis for understanding how the event could have been concluded to be sexual in nature, much less how RC could determine, primarily from the CCTV footage as he said in evidence, that the Respondent sought sexual gratification in his interaction with the student. These conclusions would not, in the view of the Court, fall within a range of conclusions which could reasonably be drawn from the available evidence.

Having regard to all of the evidence and submissions before it, the Court concludes that the dismissal of the Respondent was, for the reasons set out above, procedurally unfair. The degree to which the Respondent was deprived of his right to fairness of procedure and natural justice is such as to render the dismissal unfair with the meaning of the Act.

In reaching this conclusion the Court takes particular note of the evidence tendered by the Appellant that the investigator’s decision that sexual harassment had occurred was not communicated to the Respondent at the conclusion of the investigation phase or at any other time. Similarly, the Court notes the fact that the Respondent was not, before or during the disciplinary phase, put on notice of a charge of sexual harassment and that omission deprived him of his right to know the case against him and to respond to that case in his defence.

The Court further concludes that the decision to dismiss the Respondent was disproportionate and outside of the range of responses which the Court would expect from a reasonable employer to the evidence submitted by the Appellant to have been presented at the investigation and disciplinary hearings which were convened to consider the matter.

Determination

The Court determines that dismissal of the Respondent was unfair. The Court determines, having regard to submissions of the parties, that compensation in respect of his loss is the appropriate remedy.

The Court has heard evidence and received submissions as to the earnings of the Respondent at the time of his dismissal. The Court has also heard evidence and received submissions as to the loss he has suffered as a result of his dismissal and the efforts he has made to mitigate that loss. Having regard to all of that evidence and the submissions made in that respect, the Court determines that the amount of compensation in respect of loss which is just and equitable in all the circumstances is €35,000 and orders the Appellant to pay compensation in that amount to the Respondent. The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
FMc______________________
11th November 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.