UDD2132

1.An appeal of an Adjudication Officer's Decision No.ADJ-00024822 CA-00031575-001

Prior to the hearing of the Court the employer made application for the Court to hold the hearing other than in public because of the existence of special circumstances. The Appellant did not support the request. Having considered the application, the Court, in accordance with the provisions of the Workplace Relations Act, 2015 at Section 44(7), decided to conduct these proceedings otherwise than in public because of the existence of special circumstances and, as a consequence, to anonymise this decision.

The Case

The undisputed facts of the within matter are that the Respondent organised a Christmas Party on 1^stDecember 2018 to which the Appellant and other staff were invited. The Respondent hosted the event and negotiated a discount hotel room rate for staff who might choose to stay in the hotel on the night of the party.

On 15^thFebruary 2019 a staff member (the original Complainant) made a complaint to the Respondent that she had been sexually assaulted by the Appellant in her hotel bedroom following the event. That complaint was considered by the Respondent under its disciplinary policy.

A meeting took place between the Appellant and the Respondent on 18^thFebruary at which he was informed of the complaint of sexual assault made against him. At that meeting also he was informed that the Respondent was considering suspending him pending a full investigation in line with the disciplinary policy of the Respondent. He was informed that the Respondent wished to have a further meeting with the Appellant where he could advance any reason why he should not be suspended pending the investigation. That meeting took place on 22^ndFebruary 2019 and the Appellant was informed by phone on 25^thFebruary 2019 that he had been suspended with pay.

In accordance with the disciplinary policy of the Respondent, an investigation was undertaken which was completed on 20^thMarch 2019 and made a single finding to the effect that, on the balance of probability, the Appellant sexually assaulted the original Complainant in her hotel room after the Respondent’s Christmas party on 1^stDecember 2018.

A disciplinary hearing was held on 15^thApril 2019 which subsequently resulted in a decision to dismiss which was conveyed to the Appellant by letter dated 24^thApril. That decision was appealed by the Appellant and the appeal resulted in a hearing on 18^thJune 2019. The appeal was unsuccessful, and that outcome was conveyed to the Appellant by letter on 28^thJune 2019. The Appellant made a further appeal of that decision and a second appeal hearing was convened on 5^thJuly 2019. That appeal was unsuccessful, and the Appellant was so informed on 24^thSeptember 2019.

Summary position and testimony on behalf of the Respondent.

The Respondent submitted that it was entitled to consider the complaint made to them on the 18^thFebruary under the terms of the disciplinary policy in the employment. The event giving rise to the original Complaint should be regarded as having occurred in the course of the employment having regard to the circumstances.

The Appellant was made aware of the complaint at a meeting convened on 18^thFebruary 2019. At that meeting the Appellant was provided with the letter of complaint which had been received from the original Complainant, was informed that the complaint was serious and advised that it could lead to suspension. The Appellant was encouraged to contact a solicitor to get support in relation to the matter.

Thereafter a series of procedural steps were implemented in accordance with the disciplinary procedure of the Respondent. Throughout those procedural steps the Appellant was encouraged to seek legal representation. The Appellant chose to be accompanied by a friend throughout the procedure.

The first procedural step was a meeting convened on 22^ndFebruary 2019 to consider the potential suspension of the Appellant. At that meeting he confirmed that he was legally advised and that he would make no comment in relation to the matter.

Throughout an investigation, disciplinary hearing, appeal hearing and second appeal hearing, the Appellant confirmed that he continued to be in receipt of legal advice and that he would make no comment in relation to the complaint made against him. He did, on more than one occasion, state that he had done nothing wrong but, on each occasion, declined to elaborate on the meaning of that assertion.

The Respondent engaged an independent barrister to conduct an investigation which had the stated purpose of making findings of fact on the balance of probabilities. Throughout that investigation the Appellant refused to comment on any matter associated with the date of the alleged sexual assault or on any aspect of the complaint against him. The investigator made a single finding which was that, on the balance of probability, the Appellant sexually assaulted the original complainant.

The investigation was comprehensive, independent and thorough. The Appellant was clear in advance of that investigation of the substance of the complaint against him and was consistently advised by the investigator to secure legal advice at various stages. The original Complainant was interviewed by the investigator on 7^thMarch 2019 and the Appellant was provided with a transcript of that interview at his meeting with the investigator on 8^thMarch. At all times throughout the investigation the Appellant refused to comment on the events giving rise to the complaint of the original Complainant.

It is not reasonable for the Appellant, having regard to his failure to engage with the investigatory process, to challenge the investigation report and to contend that it is unfair for the Respondent to rely upon that report throughout the disciplinary process. At no time throughout the disciplinary process did the Appellant provide an account of the matters which gave rise to the original complaint and consequently the Respondent at no time was provided with an account which could disturb or undermine the finding of the investigator.

The investigator was presented with a detailed account by the original Complainant which was never challenged by the Appellant. The single finding of the investigator was never challenged by the Appellant throughout the disciplinary process and in those circumstances the decision of the Respondent to dismiss the Appellant on grounds of gross misconduct was within the range of reasonable responses which could be expected of a reasonable employer.

The Court heard evidence on behalf of the Respondent from the decision makers at every stage of the disciplinary process. Each witness confirmed that they approached the matter with an open mind but were given no basis by the Appellant to cast doubt on the original complaint or to undermine the finding of the investigator. Similarly, the decision makers at two stages of appeal testified to the effect that the Appellant made no comment on the matters under issue at the appeal hearings and consequently no basis was put forward to overturn the decision to dismiss.

Summary submission of the Appellant

The Appellant submitted that the alleged incident of gross misconduct did not take place during work time or on work premises. It took place at a private venue, in a private room after the work party took place.

He made no submission contesting the allegations made against him by the original Complainant.

The Appellant referred to the case ofCrowe v An Post (UD1153/2014)where the EAT held that for a dismissal for out-of-work conduct to be fair, there must be a genuine connection between the conduct and the employment such that it:

• •Leads to a breach of trust and / or causes reputational and / or other damage to the company and / or risks bringing the employer’s name into ill repute (for example by reports in the press),

  •Makes the employee unsuitable to continue in the job (for example, if an employee is convicted of theft and his job involved dealing in cash),

  •Causes the employer to genuinely lose trust and confidence in the employee

The Appellant set out extensive case law which he contended supported his right to fair procedure in relation to allegation made against him. He extensively challenged the independent investigation of the complaint made against him and in particular asserted that the investigator attempted to test him, the Appellant, on various matters without setting out the context for her questions. The investigator with-held the detail of her discussion with the original Complainant on a‘very very personal matter’and later relied upon that discussion to draw conclusions in the course of reaching her finding.

He contended that he was denied his natural rights to know the case being made against him, the right to reply and the right to due consideration. He contended that whereas he knew he was accused of sexual assault prior to the commencement of the investigation, he had not been provided with a transcript of the investigator’s interview with the original Complainant prior to his being interviewed.

He contended that the investigator did not afford him a fair opportunity to advance a defence.

The Appellant went on to challenge the reasoning of the investigator and her failure to assess or test the credibility of the original Complainant. He referred extensively to the transcript of the investigator’s interview with the original Complainant and asked the Court to consider that the reasoning of the investigator in respect of the matters set out therein was flawed.

The Appellant did not contend that any aspect of the disciplinary procedure employed by the Respondent following receipt by the Respondent of the investigator’s finding was unfair. He did however submit that such procedures were fundamentally flawed because they relied upon a flawed investigation.

Relevant law

The Act at Section 1, in relevant part, defines dismissal as follows:

“dismissal”, in relation to an employee, means—

• (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

  (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or…

• 6. (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

  (6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

  (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

  • (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

    (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d)

Discussion and Conclusions

This matter comes before the Court as a complaint that the Appellant was unfairly dismissed. It is undisputed that the Respondent received a complaint from an employee (the original Complainant) on 15^thFebruary 2019 which stated that the Appellant had sexually assaulted a colleague in a hotel bedroom following a Christmas party funded by the Respondent to which both individuals had been invited by the Respondent.

The complaint received by the Respondent has never been engaged with by the Appellant in that he has never denied or otherwise challenged the complaint originally received by the Respondent. He has at various stages of the investigation and disciplinary procedures asserted that he did nothing wrong. He has not elaborated on that assertion at any stage. Indeed, he has not made any submission to the Court setting out an account which contested the fundamental allegation made against him by the original Complainant.

The Appellant has submitted that the event complained of to the Respondent occurred after the conclusion of the Christmas party hosted by the Respondent and in the hotel room which had been booked by the original Complainant. He contended therefore that the event originally complained of occurred outside of the workplace and that the Respondent had no capacity to address the matter under its workplace disciplinary procedure.

The Court notes that the Appellant and the original Complainant would not have been in the hotel on the occasion other than as a result of their employment with the Respondent. The Respondent organised and paid for the event and had invited both the Appellant and the original Complainant to attend. In fact, according to testimony given on behalf of the Respondent, the shift roster of the original Complainant was altered by the Respondent specifically so that she would be in a position to attend the Respondent’s Christmas party on 1^stDecember 2019.

Testimony on behalf of the Respondent was to the effect that the Respondent, in organising the party, considered that, because of the rural location of the hotel and the challenge of securing taxis, it would be prudent in the interest of safety for the Respondent to engage with the hotel to secure a discounted rate which could be availed of by staff on the night of the Christmas party. Such an engagement took place which resulted in the hotel providing a discounted room rate to attendees at the Respondent’s Christmas party.

The hotel room where the alleged assault took place was a room to which the discounted rate applied; which was the responsibility of the original Complainant rather than the Respondent to pay.

The original Complainant, in her complaint of 15^thFebruary 2019, complained to the Respondent, inter alia, that she was afraid that she would have to work with the Appellant or sit beside him in the restaurant. She said that she was“unable to work to the standards I hold myself to. I am bringing this to your attention now as I cannot cope with this on my own at work anymore”.

The Appellant drew the Court’s attention to the decision of the Employment Appeals Tribunal inCrowe v An Post [UD1153/2014]wherein the Tribunal held

• “A dismissal for misconduct outside the workplace can only be justified where there is a sufficient connection between the crime committed and the employee’s work, in such a way that would render the employee unsuitable or capable of damaging the employer’s reputation. The guiding principle in cases involving misconduct outside the workplace is that the employer must be able to show a connection between the misconduct and the company's operational requirements.”

• “As a general rule the employer has no right to institute disciplinary proceedings unless it can be demonstrated that it has some legitimate interest in the conduct of the employee. An interest would normally exist where there is some nexus between the employee's conduct and the employer's business. The employer has to demonstrate that it has a legitimate interest in the crime committed to the extent that the misconduct is disruptive to business, employee relations or affects the reputation of the company. The test is: has the out-of-work conduct of the employee impacted adversely, or is capable of impacting adversely, on the employer's business? If it has then the employer has the right to institute disciplinary proceedings.”

• “The phrase ‘in the course of employment’ is to be construed in the sense in which a layman would understand those words’

• “It is a question of the good exercise of judgement 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”

In all of those circumstances the Court, having regard to the authorities submitted by the parties and their application to the facts, concludes that the event was sufficiently connected with the employment as to mean that, for the purposes of the Act, it occurred in the course of employment to the degree that the disciplinary policy of the Respondent could reasonably be applied in order to address the complaint made to the Respondent by the original Complainant. In addition, it is the Court’s judgement that the alleged event in question had the potential to impact on employee relations in the workplace, to cause reputational and / or other damage to the Respondent and / or to risk bringing the Respondent’s name into ill repute (for example by reports in the press) and to cause the employer to genuinely lose trust and confidence in the Appellant.

The Appellant has made no issue before the Court as regards the disciplinary process engaged by the Respondent which included a disciplinary hearing, an appeal and a further appeal. The Appellant has contended however that the investigation process employed by the Respondent was flawed to the degree that it could not be relied upon. In that context, he contends that because the decision makers in the disciplinary process relied upon the report of the investigation, those processes were also flawed as a result. The Respondent fully contests the Appellant’s assertions in respect of the investigation process and its resultant single finding.

It is a fact that the Respondent engaged an independent barrister to conduct an investigation of the complaint it had received in writing from the original Complainant. It is a fact also that the Appellant was provided with a copy of the letter of complaint before the initiation of the investigation process.

The Investigation commenced with an interview with the original complainant on 7^thMarch 2019. A transcript of that meeting was prepared. The investigator met the Appellant on the 8^thMarch and in the course of that meeting provided him with a transcript of the meeting which had been held with the original complainant the previous day. The Appellant, who was legally advised but not accompanied by his legal adviser at the investigation meeting, was encouraged by the Investigator to take the transcript away and to consult with his legal adviser after which a further meeting could be arranged wherein the Appellant could provide his account of events. In the event, the Appellant did take the transcript away so as to to discuss the matter with his legal adviser. He then contacted the investigator to say that he would be making no comment on the matter. In those circumstances the investigator advised him that there would be no point in a further meeting.

At that meeting on 8^thMarch the Appellant repeatedly declined to comment in respect of any matter related to the alleged sexual assault or on any events occurring on the date of the Christmas party. In the event, the Appellant, based he said on legal advice, made no comment on these matters throughout the investigation, the disciplinary hearing, the first appeal and the second appeal. Incidentally, the Appellant made no comment in relation to these matters in his submission to this Court.

The Appellant has submitted that the conduct of the investigation failed to observe the requirements of natural justice and fair procedure. The Court sets out below the contentions of the Appellant in this respect and the conclusions of the Court in relation to those matters:

• 
  (a)He was not afforded the opportunity to know the case against him before being questioned by the investigator:
  • 
    It is undisputed that the Appellant was provided with the detail of the original compliant almost immediately upon its receipt by the Respondent. It is further undisputed that the original Complainant was interviewed by the investigator on the 7th March 2019 and that the Appellant was provided with a transcript of this interview on the 8th March 2019. The investigator afforded the Appellant an opportunity to take the transcript away and to consult with his legal advisor after which a further meeting could be arranged for the Appellant to provide his account of events and to be questioned on this by the investigator. It is undisputed that, having consulted with his legal adviser while in receipt of the transcript, the Appellant confirmed that he would make no comment in relation to the matter and in those circumstances no further meeting took place.

    The Court is satisfied in these circumstances that the Appellant was provided with the full detail of the case being made against him and provided with a full opportunity to address the matter which he declined.

  
  (b)He was not afforded an opportunity to advance a defence and to cross examine witnesses
  • 
    The Appellant in this case did not, during the investigation, contest the allegations made to the Respondent on 18^thFebruary 2019. He refused to comment on any matter raised by the investigator and refused to give any account of events from his perspective. In addition, he never sought the opportunity to challenge the account of the original Complainant by cross examination or otherwise.

    It is not, in the Court’s view, possible to hold that where the Appellant made no contest as regards the allegations against him during the investigation, the investigation finding is flawed because some pathway was not taken whereby the investigator would invite the Appellant to cross examine or otherwise test the account of the original Complainant. This was an investigation of a complaint where the alleged perpetrator simply did not contest the allegations made against him.

    Similarly, where the Appellant (a) had full knowledge of the complaint against him prior to the investigation, and (b) where he was provided with the investigator’s transcript of her interview of the original Complainant at a meeting on the day following that interview and was invited to consult his legal adviser before responding to the detail of that transcript, the Court cannot conclude that the Appellant was not afforded the opportunity to advance a defence.

  
  (c)The investigator did not assess the credibility of the original complainant:
  • 
    The Investigator was faced with a situation where a very serious allegation had been made against the Appellant. The Appellant did not dispute the facts as alleged during the investigation. In the view of the Court, in an environment where no contest was made of the alleged facts, the investigator was not obliged, of her own motion, to challenge the original Complainant to the degree which might be necessary where a dispute as to the facts of the matter existed. The investigator, in her report, states that she found the original Complainant to be a truthful, credible witness and also asserted that her evidence had been corroborated in a number of ways.

    The Court is satisfied that, in all of the circumstances of the matter, including particularly the fact that the Appellant made no contest of the facts as alleged by the original Complainant, the investigator did and was entitled to make her assessment that the original Complainant was a credible witness.

  
  (d)Investigator did not test the evidence put forward by the original complainant
  • 
    The investigator, in her report, sets out the detail of her engagements with the original Complainant and with two other witnesses who she considered relevant to the matter under investigation. She sets out a reasoned assessment of the evidence or narratives available to her. The Appellant asks this Court to re-assess the material considered by the investigator and effectively to re-investigate or re-assess the matters considered by the original investigator.

    The Court considers that its role in this matter is (a) to consider whether the finding of the investigator is consistent with the information/evidence available to her, or (b) to consider whether the process was flawed to a degree that its findings could not be relied upon.

    The Court, taking particular account of the fact that the Appellant made no contest before the investigator of the allegations made against him and provided no account or evidence which could be considered by the investigator, has concluded that the finding of the investigator is consistent with the information available to her and that the investigation process was not flawed to a degree that its finding could not be relied upon.

  
  (e)The investigator did not interview relevant witnesses.
  • 
    The Investigator made a decision to interview two people who might have knowledge of events which occurred on the date in question which she considered might be relevant to her investigation. It is undisputed that the alleged sexual assault could only have been witnessed by the original Complainant and the Appellant as the alleged perpetrator of the alleged sexual assault.

    The Appellant put no narrative before the investigator which challenged the allegations made against him and put forward no witnesses which might be relevant to any such narrative or account.

    In all the circumstances, the Court concludes that it was for the investigator to decide upon the matter of which witnesses of any alleged events might be of value or relevance to the matters under investigation by her. The Court can see no reason to conclude that her decision making in that regard was unfair to the Appellant or otherwise irrational.

In all of the circumstances, and noting that the Appellant was on full notice of the allegations made against him and was afforded full opportunity to provide the investigator with his account of the alleged events and failed to do so, the Court is unable to conclude other than that the independent investigation reached a finding which was not inconsistent with the information available.

Having concluded therefore that the investigation was not flawed to the degree that its findings could not fairly be relied upon, the Court must therefore conclude, on the basis of the assertion by the Appellant that the sole fault of the entire disciplinary process thereafter was the reliance of decision makers on the findings of the investigator, that the decision to dismiss the Appellant was not procedurally flawed.

The Court notes that the uncontested allegation against the Appellant was that he had sexually assaulted a colleague. The absence of contest subsisted through the disciplinary meeting where the decision to dismiss him was taken and through two appeals of that decision. It is not the function of this Court to substitute its decision for the decision of the Respondent in the disciplinary process. Rather, it is the function of the Court under the Act to decide whether the decision of the Respondent falls within the range of responses which might reasonably be expected of a reasonable employer. In the within matter, the Court concludes that the decision to dismiss the Appellant in response to the uncontested allegation that he sexually assaulted a colleague falls within that range.

Decision

The Court decides that the Appellant was, for the reasons outlined above, not unfairly dismissed within the meaning of the Act.

The appeal fails and the decision of the Adjudication officer is affirmed

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
4 May, 2021.	Chairman