Complainant

Respondent

Anonymised Parties

Occupational Health Therapist

Health Care provider

Representatives

Crushell & Co Solicitors

 HR representatives

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-00043009-001

11/03/2021

The Complainant contends that he was unfairly dismissed.

The Complainant commenced employment with the respondent as an occupational therapist in November 2006. He was promoted to a senior occupational therapist post on 14 April 2008 and remained there until his dismissal on 06 November 2020.

He submitted his complaint to the WRC on 11/3/2021.

His gross weekly salary was €1173.

At the outset, the complainant’s solicitor looked for an adjournment in view of the late arrival of respondent’s submission. There are extenuating circumstances; the complainant is a Bangladeshi, not a native English speaker. The solicitor needs more time to be fully briefed.

The respondent advised that there was nothing new or unsighted in their submission.

I decided to proceed and should we arrive at unseen documents or other relevant material, a decision to proceed or adjourn could be examined.

The complainant contends that he was unfairly dismissed.

The complainant was employed as a senior occupational therapist at one of respondent’s health care facilities.

A serious accusation was levelled against him based on circumstantial evidence which was insufficient to mount such an accusation.

Events leading to his dismissal.

On 08 November 2017, an occupational therapy student, Ms. X., working under his supervision made a formal complaint of sexual harassment against the complainant under the Dignity at Work Policy.

The respondent assigned an investigation team to conduct a formal investigation.

The investigation team upheld Ms X’s complaints and found that

“the primary findings of the investigation team is that – on the balance of probabilities – there is sufficient circumstantial evidence to support the complaints / allegations made by Ms X, student occupational therapist, that the complainant, engaged in behaviour that constitutes a breach of the respondent’s dignity at work policy and that the complaint by Ms X is therefore upheld.”

The occupational therapy manager, in receipt of the investigation team’s report noted that

“having regard to all of the above but specifically the seriousness of the allegation upheld and the risk carried by the department related to governance structures, management feel there was no option but to refer this case for consideration under stage 4 of their disciplinary procedure.”

This stage provides for dismissal or action short of dismissal.

The disciplinary hearings were delayed due to the complainant’s absence on sick leave but ultimately took place on the 31/8/2020. The respondent’s Chief Officer who conducted the disciplinary hearings wrote to him on 25/9/2020 advising 

“I have decided you should be dismissed and your contract of employment with the respondent be terminated.”

This decision was appealed by the complainant, but the original decision was upheld.

It was consistently affirmed throughout the investigation, disciplinary and appeals process, by the respondent that the student making the accusations against the complainant, was a more credible witness.

The complainant has an unblemished performance and disciplinary record. He has never had any similar accusations made against him, either personally or professionally. He has no criminal record and has never come to the attention of the Gardai for any reason whatsoever.

However, an accusation was made against the complainant without any corroborative evidence, and, in the complainant’s view, the respondent determined that due to the ensuing reputational consequences, it chose to terminate the employment of the Complainant.

The complainant refuted the accusations made against him and protested his innocence.

Procedural Deficiencies

The decision to dismiss an employee must be made in a way that is procedurally fair.

The complainant contends that there were several procedural issues with respect to how this dismissal was decided. He was not afforded an opportunity to cross-examine the individual making the accusations against him, to substantively challenge any ‘evidence’ put before him, nor was he allowed legal representation at the investigation or at the disciplinary process hearing proper, and that the ultimate decision maker was guided by the reputational consequences of maintaining the complainant on staff, rather than any potential risk he posed. In this instance, the respondent had a reputational and commercial incentive to dismiss the complainant due to the nature of the allegations raised and the subsequent consequences for external stakeholders.

 The complainant’s solicitor refers to Gallagher v. The Revenue Commissioners [1995] 1 I.R. 55. A Customs and Excise Officer was being investigated for the manner in which he conducted his duties. He was accused, inter alia, of having deliberately undervalued a vehicle. His request to cross examine the persons who had valued the vehicle was refused. He withdrew from the oral hearing. Mr. Gallagher was dismissed.  On appeal, the Supreme Court upheld the right of the applicant to be afforded the opportunity of hearing and cross-examining witnesses. Having regard to the seriousness of the charge and the consequences for the applicant the decision to dismiss was therefore taken contrary to the requirements of natural justice and fair procedures and was quashed. The complainant in the instant case was not afforded the opportunity to cross-examine any witness.

Right to Legal Representation

The complainant cites the Supreme Court decision of Burns v. The Governor of Castlerea Prison [2009] 3 IR 682 in support of his contention that he should have been afforded an opportunity to avail of legal representation at an earlier stage of the process. This concerned a case involving prison officers who had been accused of taking too long to return a prisoner from hospital resulting in alleged improper overtime claims. The issue was whether or not the prison officers were entitled to legal representation at the disciplinary hearing. The Supreme Court approved a list of considerations and criteria to be considered in the context of deciding if legal representation is required to secure a fair hearing. These criteria were set out by Webster J. in R v. Secretary of State for the Home Department Ex Parte Tarrant [1985] 1 QB 251 which were: -

the seriousness of the charge and of the potential penalty;

whether any points of law are likely to arise;

the capacity of a particular prisoner to present his own case;

procedural difficulty;

the need for reasonable speed in making the adjudication, that being an important consideration;

the need for fairness as between prisoners and as between prisoners and prison officers.

in the instant case , the complainant was facing the maximum  penalty

The severity of the sanction imposed

9.1. SI 146/2000; Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures provides for sanctions short of dismissal. The respondent confirmed during the appeals process that no other option, but dismissal was considered.

The complainant maintains that the outcome of the disciplinary process was prejudiced by the respondent’s “zero tolerance approach” to such accusations. No other sanction was considered. This was confirmed by the respondent during the Appeals process.

Unfair Dismissals Act

Burden of Proof

The complainant asserts that the respondent has failed to provide any objective evidence to support his dismissal beyond an unproven accusation.

The complainant relies on the test set out in Hennessy – v – Read and Write Shop Ltd UD 192 /1978.

“In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to:

the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and

the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

The complainant contends that the nature and extent of the inquiry was deficient in that he was denied an opportunity to cross-examine or challenge the individual making these serious accusations against him.

In Frizelle v New Ross Credit Union Ltd [1997] IEHC 137, Mr. Justice Flood said that where a question of unfair dismissal was in issue, there were “certain premises which must be established to support the decision to terminate employment for misconduct”. One of these was

“The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee”.

Flood J. added that “put very simply, principles of natural justice must be unequivocally applied”.

The complainant maintains that the sanction of dismissal was disproportionate.

Sworn Evidence of the complainant.

The complainant confirmed that he commenced with the respondent in 2006. At the time of his dismissal, he was a senior occupational therapist, with a staff supervisory function, and responsibility for supervising student occupational therapists; he was the chief supervisor.

Sometimes his work involved him working off site; visiting homes, sometimes accompanied by student occupational therapists which until the HIQUA inspection in 2013, was permitted.  He occasionally purchased products for the residents and patients. His previous manager accepted this, and he would submit receipts for goods purchased.

Prior to the current complaints submitted against him, no previous complaints had been received.

His previous manager in 2016 had advised him not to ask personal questions of staff.

Visit to the Timber Store on 7/11/2017.

On the 7/11/2017 he went to the woodstore adjacent to the Dublin Mountains to source products at a discount for a project aimed at promoting gardening activities amongst the residents. The store had telephoned him to advise him that the wood was available. He advised the Accounts Department who thanked him for this. He notified his manager of his plan to collect wood. She raised no objection to this plan. There was no process in place for what he did. He wished to collect the timber as he was going on leave on the 12/11/17 and he had volunteers lined up to help with the gardening project for the residents.

He asked Ms X, who was six weeks into her placement, to accompany him as she had been actively involved in the gardening project.  Ms X was anxious about missing the scheduled 2pm group occupational therapy meeting but he thought that they might make it back for the meeting at, say, 2.10 pm. The student indicated that attending the meeting was her preference, but she did not decline to accompany the complainant to the wood store. He advised the student that the greater benefit lay in collecting the wood than in attending a 2pm meeting, but he left the choice with her; he did not force her. The complainant never noticed that Ms X had had any difficulty with him in the previous 6 weeks of her placement.

He stopped in two occasions to take photos, the second time because he had missed the first location which had a great vista. Ms X took photos with her own camera, and he was mistaken to have asked her to do that. He became aware that she was upset about the cancellation of the group meeting.

He denied the stated allegation of Ms X that he questioned her about the sexual habits of young people in Ireland, or that he stated that pre-marital sex was evil. He did not, as she had alleged, ask her if she was sexy. He did not ask her to recline the car seat or ask to take her hand or to place her hand on his chest. He denied all of Ms X’s statements.

He returned to the facility at 3pm on 7/11/2017 and not 4 pm as alleged.

Within a week his manager told him of Ms X’s complaints against him. He did not understand why she had made these exaggerated complaints. He met the facility’s general manager on the 13/11/17. He knew a hearing and an investigation was imminent. He explained to the investigation team that the allegations were unfounded. The wrong conclusion was drawn by the investigation team in their report of late October 2018. He was provided with the draft report of the investigation team, and he denied the veracity of the actions/ statements attributed to him by Ms X. They did not happen.  He felt that he would not be listened to. He felt suicidal as everyone believed Ms X. He went on sick leave. There is no documentary evidence except for the photos on Ms X’s phone. He had done voluntary work in Ireland for 15 years.

At the time of the disciplinary hearings he was represented by his union representative.

He was mentally wrecked. The respondent’s treatment of him led him to resign in September 2020.

He thought he would submit a complaint at that stage to the WRC in whom he had more confidence.

He received a termination letter on 25/9/20. He stated that he continued to deny the allegations because there was no evidence. He had 15 years’ service with the respondent. He has never harmed anyone. When asked about the more ”credible account” written by Ms X ,he stated that is because she can  write a better letter in English.

He believes that the sanction was disproportionate, and he might have received a warning. He accepts that there is zero tolerance for harassment. Concerning the respondent’s statement that he showed no remorse, he doesn’t know how the respondent would conclude this.

Cross examination of the complainant.

The complainant confirmed that he was familiar with the respondent’s financial regulations on the purchase of goods. When asked why he did not comply with them, the complainant stated that the occupational therapy manager told him if he cleared with accounts, it would be permissible to go ahead and purchase the wood. It was a common practice to purchase an item and then submit a receipt for reimbursement. In 2016, the previous occupational therapy manager gave him permission to go outside the regulations, for example to purchase tools in the city. There was a new occupational therapy manager in 2017.

He liked all the students, including Ms X.

The complainant stated that he was unaware of the respondent’s rule that he needed permission to go offsite for a non- clinical task. He was never told that he should ask. There is no rule governing non- clinical visits.

He knew that Ms X was anxious to get back to the meeting. He thought that he could be back by 2.15 if he left the facility at 1.15.

He stated that he left a note that he could not attend in case he did not make it back by the time the meeting was over.

The complainant stated that he did not ask Ms X to recline her seat or to take her hand. To the question as to why Ms. X would fabricate the story, the complainant stated that maybe she was unhappy.

To the point that Ms X had lied to her parents, the respondent, the college, and that her story does not change, he said he had no answer.

As to why he stopped to take photos- knowing that Ms X and perhaps himself wanted to get back to the 2pm meeting, the complainant stated that that was a mistake on his part to stop and take photos, though it only took 10 secs. He accepted that the spot where he stopped to take the photos was beyond the timber store. He confirmed that he went beyond the store because he had missed the sign. He accepts that he got out of his car at the first stop.

The complainant stated that the timber was used the following week. To the question why not wait to get the timber, the complainant stated that he was scheduled to go on leave shortly. To the question as to why he brought Ms. X along with him and what learning was available on the collection of timber, he stated that she was working with him. To the question of the capacity of his car to carry the timber, the complainant stated that he thought that the store would cut up the timber for him.

The complainant stated that he has no answer as to why the respondent believed Ms. X.

Mitigation

He secured another position as a senior occupational therapist on 28/11/2020. His annual salary is  €57,000; it will increase each year. There is little financial benefit to him in bringing a complaint, but his dignity depends on it. He would like to return to the respondent’s employment. He presents no danger to anybody.

Conclusion.

The college had withdrawn the students. The complainant’s resignation was not accepted. The respondent wanted his head on a plate to placate a third party – the college.

The complainant’s solicitor stated that a flawed process, unsubstantiated allegations, a hitherto unblemished record, the failure to offer the complainant the right to cross examine, evidence based on the word of one individual, plus the failure to consider lesser sanctions means that the dismissal must be found to be unfair.

The respondent denies that the dismissal was unfair on either substantive or procedural grounds. The respondent defends their decision to dismiss the complainant in the context of section 6. 4 and section 6.6 of the Unfair Dismissals Act 1977-2015.

The respondent maintains that the complainant was afforded due process and a fair procedure.

A serious complaint was submitted to management in relation to his alleged sexual harassment of a student in the complainant’s care and tutorage. That complaint was dealt with in accordance with the respondent’s Dignity at Work Policy, a Policy that deals with complaints of bullying, harassment, and sexual harassment. The complainant was given a copy of the complaint and asked for his response. The complaint was screened in accordance with the policy and was deemed appropriate to be dealt with pursuant to the policy. An independent investigation was convened under strict terms of reference and met the complainant in July and September 2018.  The complainant was offered the opportunity to be represented throughout the investigation; this he declined. A draft report was submitted to the complainant to give him an opportunity to reflect on the preliminary conclusions. He had nothing new to add the investigator’s draft report, so they issued their final report upholding the student’s complaints, late October 2018. The officer who commissioned the investigation was of the opinion that the matter was more appropriate to be dealt with pursuant to the Disciplinary Procedure at Stage IV. The report of the investigating committee was sent to the Chief Officer (CO) who convened a disciplinary hearing under stage IV of the procedure. Time was given to allow the complainant secure representation. The hearing was put on hold pending the complainant’s recovery from ill health and eventually took place on the 31 August2020. An experienced trade union official represented him at the disciplinary hearing. Taking the report findings into consideration and the representations of the complainant at the disciplinary hearing, the CO was satisfied that the behaviour of the complainant warranted his dismissal.

The complainant appealed the decision to an appeals Committee chaired by a Senior Counsel. After a full hearing, the committee upheld the respondent’s decision to dismiss.

Every opportunity was given to the complainant throughout the investigation and disciplinary hearings to respond to the complaint many times. He declined representation himself during the investigation, but the CO was insistent that he get representation for the dismissals hearing. He was legally represented at the appeals hearing. The legal authorities cited in support of the respondent’s position hold that cross-examination or legal representation is not a right in employment disputes and by any objective assessment, the complainant was treated in accordance with the policy and procedures agreed with the unions and given every opportunity to defend himself.

Consideration of other sanctions.

The respondent, contrary to the complainant’s claim, did consider other sanctions. This is reflected in the appeals committee decision at paragraph 41 which stated

“… this was a redline issue and that the respondent has to provide the best service they can. Further that the damage done in this case goes to the core value of respect and dignity. It was further noted as to whether other options other than dismissal were considered. She (the CO and person who dismissed the complainant) stated that they had to balance the rights of the employee and she considered that there was no sense of understanding as to what occurred and that he believed he was innocent. She said that the Appellant had no remorse. There did not appear to be any mitigating circumstances. His defence was that the complainant (the student) was lying and that he was innocent. This had a negative impact on the student and that he was in a position of power. This was not an isolated incident, and it was inappropriate behaviour, and it was not acceptable. It was considered that another option would have been a final written warning but that there is a core standard of behaviour, and it was not acceptable.”  

This, the respondent asserts, is indisputable evidence that another, lesser sanction other than dismissal was considered by the CO but she was not convinced that such a sanction was appropriate in the circumstances.

Circumstantial Evidence.

The respondent rejects the claim that the circumstantial evidence was insufficient to make a finding. The burden of proof in these matters is on the balance of probabilities. The evidence set out by the investigation team detail a complainant that was credible, detailed and well balanced. The detail of Ms X’s complaints both verbal and written, were consistent throughout the process. On the other hand, there was inconsistencies in the complainant’s evidence they claim, in particular with regard to the stopping at viewing points.

In response to the issue of other complaints by students against him, the complainant falls on cultural difference as a defence to his behaviours. In fact, this was the third complaint against him. The investigation team were not convinced by this defence as the complainant had lived in Ireland for over a decade and contend that his behaviour is unacceptable in any culture. There was evidence that the student had complained about the complainant to her tutor at the University during her mid- placement assessment. There was evidence that the complainant was warned previously about asking personal questions and his current manager advised that complaints were made against him but he seems to have ignored these advices. The investigation team were satisfied that the behaviours complained about on the balance of probabilities occurred and concluded accordingly.

Evidence of Mr A., Respondent Employee Relations Manager given under affirmation.

The charges as set out in the disciplinary committee appeals report were most serious. The complainant took Ms. X up the Dublin mountains to purchase some timber for a project with residents, stopped the car, took photographs and asked her questions of a sexual nature. The written complaint by the student occupational therapist of 12/11/2017 was investigated in accordance with the respondent’s procedures.

He orchestrated this shopping for wood journey for his own benefit as this was against the respondent’s financial procedures.

He accepted that he made the journey but stated that the student was student was lying about the actions/ statements complained of by her. This was his sole defence.

The respondent did consider an alternative to dismissal but felt the sanction of dismissal was proportionate and was in conformity with their policies.

Cross examination of the witness.

Concerning the absence of legal representation for the complainant, the witness confirmed that he had trade union representation throughout the disciplinary process.

The witness accepts that the respondent fell short on the data access request but that the complainant had everything which was on his on file and all documents necessary to his defence. He was not at any disadvantage.

On the balance of probabilities, the respondent did not accept his denials and decided to dismiss him

Ms. X had been consistent in her evidence whereas the complainant was not; he stated that he only stopped once on his journey to the mountains, he later confirmed that there were two such stops.

In relation to the complainant’s assertion that the questions arose because of cultural differences, this was the third complaint of intrusive personal questioning against the complainant.

He occupied a responsible role. He was the designated person to evaluate students in their placement with the respondent and declare them competent or not in their practice role.

He stated that the cross examination of one’s accuser’s evidence is not a legal right in all employment cases.

Evidence of Ms. B, Chief Officer, given under affirmation.

She conducted the disciplinary hearing.

In May 2020, the Occupational Therapy Manager in receipt of the October 2018 report of the Investigation Committee which had upheld Ms. X’s complaints recommended that an investigation under stage 4 of the respondent’s disciplinary process was necessary. The complainant then tendered his resignation. The witness declined to accept it. She urged him to seek advice from his trade union official. She rescinded his resignation upon his request.

The purpose of the disciplinary hearing held on 31 August 2020 was to offer the complainant the chance to make his case to the respondent.  However, at the hearing he offered no acknowledgement of how he had upset the student; displayed no insight or remorse. His only defence was the student was not telling the truth. His actions were premeditated.

The allegation against him goes to heart of the trust and confidence which must characterise the employer – employee relationship.

Cross examination of witness.

Student placement scheme.

The witness confirmed that a number of colleges assign their students to a clinical placement in the respondent’s facility. Occupational therapy students have to undergo this training.  It is the complainant who certifies the competency of students assigned to him and can either give satisfactory or unsatisfactory on their reports. The university have no role in that. The university had no role in the disciplinary process. The student probably informed the university of the incident.

The student was five to six weeks in to her placement when the incident occurred.

A risk assessment of the complainant reoffending was not undertaken as the complainant offered no admission, insight, or no real response to charges against him.

The decision to uphold the student’s complaints was made on the basis of probabilities.

The complainant failed to supply the respondent with any mitigating circumstances.

She relied on the totality of the investigation report to come to her decision to dismiss the complainant.

The witness confirmed that no other incidents had been brought to the respondent’s attention about the complainant’s behaviour.

She acknowledged that there were no witnesses to the incident of 7/11/17.

The respondent did consider sanctions short of dismissal.

She accepts that the complainant was not given an opportunity to cross examine the complainant, but was presented with each and every allegation and was given an opportunity to respond to the allegations.

The witness confirmed that the assessment function was confined to senior grade occupational therapists.

The witness stated that the relevant colleges did not place student occupational therapists with them for a while. Ms. X was in her sixth week of placement. She went to another facility after the incident. She completed her assessment elsewhere.

Evidence of HR manager given under affirmation:

The witness confirmed that there were approximately 15-20 staff in the occupational therapy department including a manager, four to five senior occupational therapists, two to three occupational therapy students with the remainder occupying occupational therapist or occupational therapy assistant roles.

Legal Authorities.

The respondent relies on section 6.4 of the Unfair Dismissals Act 1977-2015 Act.

The respondent cites Hennessy v Read and Write Shop Ltd., UD 192/178 in support of their contention that the inquiry was thoroughgoing and produced findings that justified their decision to dismiss the complainant.

The respondent cites Kilsaran Concrete V Vet, UDD 11/2016 which found against that respondent for their failure to notify the employee of the charges in writing and failed to adhere to their own procedures. This did not happen in the instant case.

Concerning the right to legal representation, the respondent points to Barry Mc Kelvey v Iarnrod Eireann which held the legal representation will only be required in exceptional circumstances.

The respondent points to Bunyan v United Dominions Trust (1982) IL.RM 404, which obliged the decision maker to test the decision to dismiss against “ what we consider the reasonable employer would have done or concluded”.

Conclusion

The complainant was in a responsible role and in a role that carried power in terms of his authority to deem students as competent in their placement in the respondent’ facility. He abused that responsibility and power. He was found to have behaved in a way that was inappropriate in the company of a female student. He orchestrated bringing the student on a journey that was of his own making where he and only he decided to go and collect timber where he paid for it himself in breach of financial guidelines. There was no immediacy on the timber or the trip. This was an intentional act.

The investigation committee was satisfied  that on the balance of probability the alleged incidents took place and upheld the complaint. The primacy of the complainant’s defence was that the student was making these complaints up and the complainant could offer no reason why she would do that. He accepted that the circumstances of what occurred was correctly set out. He did request the student to accompany him up to a depot in the Dublin Mountains to collect wood for a horticultural project. The complainant’s credibility in denying the allegations is completely undermined by his actions. There were allegations of many other encounters where the complainant tried to engage the student in sexual conversation.

The process for dealing with the complaint was in compliance with the employers agreed policies and procedures. The complainant was treated in accordance with natural justice and given every opportunity to present his version of events and to challenge the accusations made.

The respondent lost all trust in the complainant based on his conduct.

It was a fair dismissal and the respondent asks that the decision to dismiss be upheld.

The dismissal is not in dispute and therefore it is for the respondent to establish that in the circumstances of this case the dismissal was fair.

The complainant has asked me to conclude that the dismissal was unfair because of the procedures involved and the disproportionate nature of the sanction.

The respondent relies on section 6(4) of the Act which provides:

 “(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) not relevant

(b) the conduct of the employee.”

The conduct which led the respondent to dismiss the complainant was his breach- in their view -of the Dignity at Work Policy, including sexual harassment of a 19–20-year occupational therapy student under his supervision on the 7 November 2017. The respondent considered this to be an abuse of power.  They came to this conclusion having accepted an investigation report which found that Ms X’s complaints were credible and deserved to be examined within the confines of a disciplinary process. They were further strengthened in their belief in the veracity of Ms X’s complaints at the disciplinary hearing and upheld her complaints. An independent appeals committee upheld their decision to dismiss the complainant.

The complainant has asked me to accept that the evidence is insufficient to prove the truth of Ms X’s complaints.

Reasonable employer rule

In the decision of Bank of Ireland – v Reilly [2015] IEHC 241, Mr. Justice Noonan stated that the question for determination in an unfair dismissals case is 

“whether the decision to dismiss is within the range of reasonable responses of a reasonable employer into the conduct concerned”.

Applying the rule to the facts of the instant case, a reasonable response would surely be contingent on a reasonable belief formed after a thoroughgoing investigation into the allegations grounding the employer’s intention to dismiss. The complainant pointed to no breaches of the respondent’s agreed procedures. I accept that the respondent believed the complainant had conducted himself as alleged. I accept that the respondent had reasonable grounds to sustain that belief. I note the appeals committee report of the 19 July 2021 recorded the submission of the Chief Officer who stated that there was no reassurance that this would not recur. This influenced her decision to bypass a lesser sanction and to proceed to a dismissal.

The respondent was faced with conflicting evidence on the actual statements and actions attributed to the complainant. Given that situation, they upheld Ms. X’s complaint on the basis of circumstantial evidence, which the complainant believes to be too tenuous a basis for such a conclusion. But what was not contested was

He asked the student to accompany him up the mountains to purchase materials for a horticultural project

Though knowing time was tight, he stopped his car on two occasions whereupon he took photographs of the landscape.

He chose to miss the group occupational therapy meeting concerning the horticultural project  for residents , scheduled for 2pm in the facility,

He ignored Ms. X’s stated preference to attend the 2pm group meeting, and though acknowledging it, disregarded her uneasiness and anxiety about the trip.

If the complainant wished to acquire the wood prior to his departure on annual leave -and it could be seen as a waste of time for one with valuable expertise, asking Ms X to accompany him was of no benefit to her or of no necessity to him. I accept that the complainant arranged the trip to the wood store knowing that it had little clinical or educational benefit to Ms X.  So that obviously raises the question as to why she was asked to accompany him -its purpose.

I do not find that this journey was other than needless

This is the context in which Ms X stated that he questioned her about the sexual habits of young Irish people, asked her was she sexy, asked her to take his hand and to recline her seat.

As stated, an extended process concluded that these statements were made.

His explanation for enlisting her to accompany him on the journey was threadbare. It is hard to avoid the conclusion that it was a personal project unconnected to the needs of the residents or her own learning.

I find that there is something ominous about asking a 19–20-year-old student to accompany him during working time to a remote area to ostensibly purchase products which could have been delivered to the facility, yet, though tight on time, expanding the project to include stops at scenic points. I find the student’s stated sense of foreboding to be understandable.

For the above reasons, I find the respondent’s decision to dismiss the complainant on the basis of the investigation report and in the face of his response to the complaints to be those of a reasonable employer.

Procedures used to effect the dismissal.

I find that the process of investigation, the disciplinary hearing and the appeal hearing were carried out in accordance with the respondent’s agreed policies. No breach of same was identified to me.

The complainant asks me to find that the dismissal was unfair due to the absence of legal representation. He did not seek legal representation. The respondent encouraged him to source representation at each stage and he chose not to take up that option at the investigation stages of the disciplinary process. He was represented at the disciplinary hearing stage by an experienced trade union official.  He was legally represented at the appeal hearing.

The Supreme Court in Mc Kelvey v Iarnrod Eireann IESC 79 held the legal representation will only be required in exceptional circumstances. The complainant asserts the right to legal representation but without identifying how the respondent’s procedures would prejudice or had prejudiced his right to a fair process. What was in dispute in the instant case was the facts of what was said to Ms. X on 7/11/2017.

Right to cross examine.

The complainant was notified of the precise allegations and complaints that triggered the original disciplinary process and which were sustained throughout the different stages of the disciplinary process. The complainant did not request the right to cross examine until the appeal stage on 26 April 2021.He did not refute the allegations in his original written response of the 7/12/2017 to the complaints. He did, subsequently, verbally contest the allegations.

Given the evidence presented at the adjudication hearing, I do not find that the absence of cross examination in this particular case is of sufficient import to render the process unfair.

Conclusion

I find that both the written and oral evidence presented at the hearing indicate that the respondent’s decision to dismiss  was not unreasonable.

I do not find this complaint to be well founded.

I do not find this complaint to be well founded

Unfair dismissal not upheld. Balance of probabilities.