Complainant

Respondent

Anonymised Parties

A Complainant

A Manufacturing Company

Representatives

James Daly B.L. John Anderson McGovern Walsh Solicitors

Mairead McKenna B.L. Hannah O'Farrell, Arthur Cox

Act

Complaint Reference No.

Date of Receipt

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

CA-00031575-001

15/10/2019

On 18 February 2019, following a complaint made to a manager by another employee of the Respondent (Ms. X) that the Complainant had sexually assaulted her following the Respondent’s Christmas party in December 2018, the Complainant was suspended with pay pending the completion of an investigation in respect of the allegation. The investigation commenced and concluded with findings of fact being made. On foot of these findings the Respondent commenced the company disciplinary process in respect of the Complainant. At the conclusion of that process, the Complainant was dismissed on grounds of gross misconduct. The complaint is that the investigation process was flawed because the investigator failed to follow fair procedures rendering her findings of fact to be unsound and therefore the decision to dismiss which was based solely on the Investigator’s finding of fact, was unfair. The Complainant also contends that dismissal was unfair because that he was disciplined for actions that occurred outside work and that the sanction was disproportionate.

The Complainant commenced work with the Respondent company in January 2011 and prior to the allegation had an unblemished work record with the Respondent.

On 15th of February 2019 the Respondent asked the Complainant to attend a meeting at which he was told that a sexual assault allegation had been made against him by a fellow employee and that he would be suspended pending a full investigation into the matter.

An independent Investigator was appointed by the Respondent. The Complainant was informed that the allegation against him was that he had sexually assaulted Ms. X in her hotel room, after a workplace Christmas party in December 2018.

The investigation took place throughout March 2019 and on 25 March the Investigator’s report was sent to the Complainant. The report dated 20 March 2019 recorded the Investigator’s finding that based on the balance of probabilities the Complainant had sexually assaulted Ms. X.

Arising from this, the Complainant entered a disciplinary process in April 2019 which concluded in him being dismissed, effective from 5 May 2019. The Complainant appealed the decision and at two appeal hearings the dismissal was upheld.

The Complainant does not criticise the operation of the disciplinary process. His complaint is confined to what he asserts was a flawed investigation process.  He contends that the findings were flawed and that the consequent decision to dismiss him was unfair. The flaws in the investigation were that the Investigator did not approach the investigation impartially, that the Investigator failed to take account of the possibility that the encounter was consensual, that the Investigator failed to interview witnesses that would have discredited Ms. X testimony, that the Investigator failed to give sufficient weight to the evidence provided by Ms. X’s mother which undermined the accusation of the Complainant, that the Investigator failed to take account of the self-contradictory evidence of Ms. X herself and that in reaching her findings, the Investigator relied on evidence that was not disclosed to the Complainant.

The Complainant also asserts that the dismissal was unfair in circumstances where the alleged event took place in a private hotel room which was not within the workplace.

The Complainant also alleges that the sanction of dismissal was disproportionate.

The Respondent’s case is that the Complainant did not participate in the investigation in any material way. When asked questions by the investigator he replied, that under legal advice, he would not answer any questions arising from the incident in question.

The Respondent says that as there was no evidence to counter Ms. X’s allegation that she had been sexually assaulted by the Complainant and in these circumstances the Investigator was given no option other than to reflect this uncontested evidence in her finding.

The Respondent also submits that the flaws in the report insofar as they may exist are not fatal to the findings in circumstances where the Investigator made her findings solely on the evidence of Ms. X, in circumstances where the Complainant was given numerous opportunities but did not provide his version of events on the night in question.

The Respondent defends the findings of the Investigator and asserts the Complainant was afforded fair procedures. The Respondent asserts that they were under a duty to investigate the matter once Ms. X made her complaint and complained that she was suffering from anxiety associated with the event itself and the fear that she would encounter the Complainant in the workplace.

The Respondent denies that the sanction was disproportionate and denies that the event in question was not within their responsibility to discipline.

There are three issues to determine in this complaint:

1.       Did the alleged assault take place within the employment of the Complainant?

2.       Was the investigation flawed to render the findings of the investigator to be unreliable?

3.       Was the sanction disproportionate?

1.       Did the alleged assault take place within the employment of the Complainant?

In relation to the Complainant’s submission that the alleged assault did not occur during the Complainant employment nor at his work place, I am not persuaded by this contention. The reliance on this might apply if Ms. X was suing the Respondent for the vicarious liability of the Complainant actions, where the Respondent contends it cannot be liable for detour conduct of the Complainant that amounts to a criminal offence because the action was not reasonably foreseeable.

However, this is a statutory claim of unfair dismissal, in which the issue was whether the conduct occurred either within the course of the employment or within an extension of that employment.

Case law on whether conduct occurred within or outside the contract of employment depends on case to case.

In the U.K. case (albeit a discrimination complaint) of Chief Constable of Lincolnshire Police -v- Stubbs (1999 ICR 547) the Appellantalleged she had been discriminated against when a fellow officer had sexually harassed herduring social events involving officers either immediately after work or for an organised leaving party. The UK Employment Appeals Tribunal held this was within the course of employment, noting at pg.558:

“It would have been different as it seems to us had the discriminatory acts occurred

during a chance meeting between Detective Sergeant Walker and the applicant at

a supermarket, for example, but, when there is a social gathering of work

colleagues such as there was in this case, it is entirely appropriate for the tribunal

to consider whether or not the circumstances show that what was occurring was

an extension of their employment. It seems to us that each case will depend upon

its own facts. The borderline may be difficult to find. It is a question of the good

exercise of judgment by an industrial jury. Whether a person is or is not on duty,

and whether or not the conduct occurred on the employer’s premises, are but two

of the factors which will need to be considered.”

Other relevant criteria to decide these matters are where trust has broken down due to the criminal conviction of an employee (Crowe v. An Post UD 1153/2014) or where the continuation of the employment is no longer possible e.g. if an driver employee loses his driving licence due to a drunk driving conviction and can no longer do the work that he was engaged to do. But these cases do not apply here as the justification for this dismissal was a finding of gross misconduct, not breach of trust and not incapacity.

Therefore the central question is if there is a finding of fact that an assault occurred and that it occurred outside work hours and outside of the work premises, is this a matter which an Employer may consider as so connected to the employment that it has the right to invoke its disciplinary process.

In determining such matters it is helpful to consider the contrary position. i.e. Could a constructive dismissal case successfully lie against an Employer by an employee who leaves their job following an assault upon them by a fellow employee (outside work hours) in circumstances where an investigation has found that the assault occurred but the Respondent decides that because did not happen in the workplace or within work hours, it may not discipline or dismiss the Complainant.

Such a case could only be decided on the facts of the case, but, in my view it would be too restrictive to find that because an assault occurred outside the work premises and work hours that this will always prevent an Employer from deciding that such conduct falls outside the course of employment and is not within its disciplinary ambit.

However, that is not what I am asked to decide in this case. The question in the present case is more straightforward.  I have been asked whether the aftermath of a work Christmas party is an extension of the parties’ contract of employment or not.

I am satisfied that, even though the event occurred in the early hours of the morning and not within the work place because it occurred in the aftermath of the Respondent’s Christmas party, the events that occurred are capable of being considered as occurring within an extension of the workplace because of the impact that it had on their contract of employment. 

In deciding this I am influenced by the following matters:  The parties were only at the venue because of their employment. The parties knew each other only as a result of their working relationship. The Christmas party was organised by the Respondent at a venue chosen by the Respondent and hosted by the Respondent. The parties would not have been at the venue but for the Christmas party. For these reasons I am satisfied that the event was one that was an extension of the employment of the Complainant.  I would like to add that this also could pertain to other work-related away events, such as overnighting to attend a work conference or a so-called “team-bonding” week-ends away. Such events potentially give rise to after-hours social activities for which the Employer might find themselves liable for.

The answer to issue 1 in the circumstances of the case is yes.

2.       Was the investigation so flawed so as to render the findings of the investigator to be unreliable?

In relation to the contention that the Investigator’s findings were flawed, I find as follows:

The question to be addressed in this adjudication is not whether the Complainant assaulted Ms. X, but rather whether it was reasonable for the Investigator, based on the evidence that was available to her, to find, on the balance of probabilities, that Complainant assaulted Ms. X.

The Complainant’s criticisms of the investigation are specific; that inter alia, there was a failure by the Investigator to interview other witnesses, there was a failure by the Investigator to disclose to the Complainant evidence of a personal nature disclosed by Ms. X  upon which the Investigator decided that it was unlikely that Ms. X would have consensually engaged in unprotected sexual intercourse, a failure to consider evidence that pointed towards an innocent explanation of events, a failure to give adequate weight to inconsistencies in Ms. X’s evidence, a failure to give adequate weight to evidence which supported a consensual version of events.

However, I do not accept that these criticisms undermine the Investigator’s findings on the central finding.

The Respondent was procedurally correct in suspending the Complainant in order to hold an investigation into the matter. The Investigator was independent and no argument about the choice of Investigator has been raised.

Once the investigation commenced, Ms. X provided her version of events to the Investigator. This version was not countered by the Complainant, despite the Investigator giving him many opportunities to do so. When the Investigator was concluding her investigation, she possessed only one version of events, that of Ms. X. In such circumstances the Investigator was fully within her remit to find that a sexual assault had occurred, there being no alternative evidence to consider. 

The fact that the Investigator went further and took steps to identify whether corroborative evidence of Ms. X’s version was available, when this was unnecessary given that the Complainant had made it clear that he would not be speaking on the matter, does not render her central finding to be unsound. The reason that the Investigator did this was lest the Complainant during the disciplinary process changed his mind in which case the investigation may have needed to be re-commenced.

In any event, this did not occur, the Complainant remained consistent in his non participation and while in hindsight the Investigator went further than she needed to, this does not undermine the findings that she made, based on the version provided by Ms. X alone in circumstances where the Complainant was provided with a number of opportunities to speak to the issue, but on the basis of legal advice, chose not to.

The Complainant contends that the Investigator had a duty to investigate the complaint more thoroughly than she did. As already observed, in the context that only Ms. X provided evidence, the investigation findings were sound. The Complainant’s contention that a higher burden of proof was applicable is incorrect and is more akin to a prosecutorial investigation than a civil one. This was a work place investigation where on the balance of probabilities the investigator was asked to and made findings on the uncontested evidence of Ms. X.

The reason provided by him for his non-participation was in reliance of legal advice. The nature of that legal advice remains unknown. It may be that he was advised against the risk of self-incrimination, lest a criminal investigation be commenced at a later date, this remains unknown.  However, the reason behind the advice is, in many respects, immaterial. What is material is that the Complainant said that he would not be speaking in respect of the allegation was because he had been legally advised not to and thereafter, he adhered to that position.

The Complainant did not participate throughout the investigation, despite being questioned a number of times and despite being given opportunities to seek legal advice. His non-participation continued throughout the disciplinary hearings and appeal hearings. Insofar as he answered some questions, these were ancillary to main charge against him and as such his answers did not assist in his defence.

In my view, by failing to provide his version of events to counter that given by Ms. X this left the Investigator with no option other than to make the findings of fact that she did.

The answer to issue 2 is no.

3.       Was sanction disproportionate?

I am satisfied that the findings of fact reached by the Investigator were well founded. I am satisfied that the decision to uphold the findings of fact and to decide that the conduct amounted to gross misconduct was reasonable. I am satisfied that that the decision to dismiss the Complainant was within a band of reasonable sanctions that could have been applied by the Respondent. I do not accept that the sanction of dismissal was disproportionate to the findings of the investigator and I do not accept that the Respondent was obliged to find a lesser sanction or that the decision to dismiss was disproportionate to the finding of fact. A sexual assault is a serious finding and one that is capable of being considered as an act of gross misconduct.

The answer to question 3 is no.

Conclusion

I am satisfied that the decision to dismiss the complainant was based on the reasonable findings of the Investigator. I am satisfied that the conduct amounted to gross misconduct. I am satisfied that the sanction of dismissal was a reasonable and proportionate response to the uncontested findings of the investigation.

I would like to commend and thank both legal representatives in this Adjudication hearing for their well-researched submissions and clear presentation.

For the reasons cited above I find that this complaint to be not well-founded

Unfair Dismissal –gross misconduct - sexual assault – outside work hours but within the course of employment