Complainant

Respondent

Parties

Brendan  Leahy

Trinity College Dublin

Representatives

Aaron Shearer BL instructed by Thomas Rowley Solicitor

Rosemary Mallon BL instructed by Kevin Langford Solicitor, Arthur Cox

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-00049887-001

26/04/2022

The Complainant began working for the Respondent University on 1st February 1993.  He rose to the post of Head of Facilities on 1st January 2015.

On 24th of March the Complainant pleaded guilty to sexual assault contrary to Section 2 of Criminal Law Amendment Act 1990 in Dublin District Court and was convicted. This matter related to an incident which occurred in a pub in June 2018. The Respondent was notified by the Complainant of his conviction and then placed the Complainant on paid suspension pending investigation.

A week later on the 31st of March 2021 a former employee of the Respondent, referred to in this decision as Ms X, sent an email to the Provost alleging that the Complainant had sexually harassed her at a Christmas party, 3 years’ previously. The allegation was that he had sat across the room from her and mimed an oral sex gesture while staring at her, shortly after having been belligerent towards her in a conversation.

The Respondent instructed Mairead McKenna, then BL, to conduct an investigation into these matters. This was structured as two separate investigations. The matter concerning the Complainant’s conviction was investigated under the Respondent’s Disciplinary policy. The matter concerning Ms X’s allegation was investigated under the Respondent’s Dignity and Respect policy.

The Complainant appealed his conviction to the Circuit Court and on the 22nd of July 2021 the charge against him was dismissed under Section 1 (1) of the Probation Act.  

The Respondent concluded their investigations and held a disciplinary hearing in October 2021. A decision to dismiss the Complainant was issued to him on 22nd of November 2021 and was appealed.

The Respondent upheld their decision to dismiss Complainant on the 4th of April 2022.

The Complainant lodged a complaint under the Unfair Dismissals Act with the Workplace Relations Commission on the 26th of April 2022 which was referred to me by the Director General.

A hearing was convened on the 4th of November 2022 and the 19th and 20th of January 2023.

The Complainant was in attendance and gave evidence under affirmation. He was represented by Aaron Shearer BL instructed by Thomas Rowley Solicitor.

The Respondent’s Head of Employee Relations Mary Leahy attended and gave evidence under affirmation. The Respondent’s Director of Human Resources, Antionette Quinn, attended and gave evidence under affirmation. The Respondent’s Academic Secretary, Patricia Callaghan, attended and gave evidence under oath. 

Mairead McKenna SC attended as a witness for the Respondent and she gave evidence under oath. 

The Respondent was represented by Rosemary Mallon BL instructed by Kevin Langford Solicitor of Arthur Cox.

A request was made for me to hear the matter in private, but I saw no exceptional circumstances which would justify such a decision.

 The Complainant’s representatives made oral and written submissions. The main arguments are summarised as follows.

There was no extant conviction at the time the Complainant was dismissed for sexual assault. The matter was successfully appealed to the Circuit Court and the Probation Act applied as it ought to have been in the District Court. This process concluded before the Respondent even finished their investigation into the matter but they still decided to proceed to dismiss the Complainant. The terms of reference for this investigation were vague and were never updated even though the situation materially changed during the course of the investigation. It is clear that the whole matter was prejudged.

The Respondent’s Dignity and Respect Policy provides a complaints procedure for existing staff and students. Ms X had no standing or entitlement to make a complaint against the Complainant and the Respondent had no basis or entitlement to investigate it. The Respondent had actually already advised Ms X in 2019 that it would not investigate another complaint she raised about her previous manager under the Dignity and Respect policy, precisely because she had at the time ceased to be an employee of the Respondent.

Contrary to the Dignity and Respect Policy Ms X’s complaint had been given by her to her only witness.  The incident about which Ms X made allegations occurred over three years prior to her complaint. Naturally any witnesses’ recollections become less reliable with time. However, Ms X’s only corroborating witness received her account of what happened not long before they were interviewed. The Respondent gave no consideration to this breach of policy or to the obvious questions it raised about the reliability of the witness’s corroborating evidence.

The Dignity and Respect policy required that a complaint be submitted in writing. It then stipulates that: “this account will be forwarded to the alleged perpetrator for formal written response, a copy of which the complainant will also receive. Further exchange of correspondence may ensue. If the matter is not resolved following the exchange of formal correspondence, an Investigator will be appointed. Parties to the investigation will receive a letter setting out the terms of reference, scope and process for the investigation”. This process was never pursued. 

The Complainant’s line manager Mr Clark’s was interviewed Ms McKenna and his comments about the Complainant are highlighted in the investigation report which went to the disciplinary hearing. He said as follows: “....if Mr. Leahy was, you know, applying for this role now with a current conviction or a spent conviction where would that position him for suitability for the role? ....And the answer to that would be, he would probably not get a look in in terms of even long listing, even with a -- you know on the basis because of the sensitivity of such a role”. Ms Cunningham the Chief Operations Manager of the Respondent was also interviewed by Ms McKenna. Her comments are contained in the investigation report also and are as follows: “....based on the original information that I have received, that Brendan has a criminal conviction for sexual assault, I don't understand how the University could actually have someone with such a criminal conviction on campus dealing with students. I think you know it would fly in the face of what we look to guarantee to our students in terms of keeping them safe and keeping their wellbeing looked after whilst they are with us on campus as they study within the college. So that's my position”. Before even the investigation of this matter had concluded, both the Complainant’s manager and the Respondent’s Chief Operations Officer voiced opinions to the effect that the Complainant’s continued employment with the Respondent was untenable. These comments were then highlighted to the decision maker, Ms Callaghan, in the investigation report.

Ultimately the Complainant felt that the Respondent had entirely prejudged matters and decided to dismiss him from the outset. The Complainant came to this view as a result of the actions of the Respondent. This resulted in him believing that he needed to be on the defensive throughout the process and that  as a result he was limited in his answers and expressions of remorse. 

The Complainant’s evidence

The Complainant gave evidence on the final day of the hearings.

He started working for the Respondent in 1993 and was promoted a number of times throughout his service, ultimately to the position of Head of Facilities and Services. He had experience of disciplinary processes in the past as he had conducted them. He had 100-200 personnel reporting into him depending on the time of year.

He became aware of a complaint against him in the Summer of 2018. The Gardaí asked him to give a statement which he did.  A file was then sent to the DPP, however the Gardaí weren’t recommending the matter be prosecuted. The Complainant heard nothing regarding the matter for some two years and thought the matter was over with.

In April 2020 the Complainant was charged with Sexual Assault which came a shock and surprise. He took legal advice and this was for him to plead guilty. He was advised that this would be viewed well by the Court and save the person in the case coming back to Ireland and having to give evidence.

The Complainant was advised that because of the minor nature of the incident itself and his plea there was a likelihood that the Probation Act would be applied by the District Court.

The matter was heard by the District Court in March 2021.

In the intervening period the Covid-19 pandemic hit and work became extremely hectic. As head of facilities he was working 24/7 to implement safety changes and respond to various issues as they arose. The Complainant had decided against telling his employer about the charge. He was shocked that the matter was going to Court and was ashamed by the whole affair. He thought that the matter would likely be dealt with by way of the Probation Act.

On 24th of March the District Court convicted the Complainant of Sexual Assault against the expectations of his solicitors. He called the Director of HR, Antionette Quinn, while walking home from the courthouse to notify the Respondent.

Later that day the Complainant received an email from HR suggesting he be put on paid suspension and that he could appeal this if he chose to. The Complainant agreed to this measure at first but, following advice, when he decided to appeal his conviction he challenged his suspension also.

At the time the Complainant was told there was an investigator ready to go and thought the matter would be concluded in a matter of days. He began to have concerns about the delay and then, around the 10th or 11th of April 2021 he began to hear rumours something in his past had come up and the investigation was going to be a “double whammy.”  This was expected to result in his dismissal.

As the Complainant was hearing about these matters through the grapevine and not from the Respondent he decided to request his personnel file.

Mairead McKenna was appointed as the investigator and when she wrote to the Complainant identifying an additional allegation made by Ms X  it was total shock. As a result of his own management experience he had conducted disciplinaries and other HR processes in the past and knew these issues should not be lumped together and investigated together.

The Complainant knew the early stages of the Dignity and Respect process was very different and reviewed the policy to make sure.

The Complainant wrote an email to HR on 4th of May 2021 because of the concerns he was having about them rolling the two processes together. The Complainant thought that this was a serious issue and displayed that the Respondent’s attitude towards him at the time. He was dealing with HR who knew the policies well and the Respondent is a very policy and process driven organisation.

The Complainant was of the view that Antionette Quinn had made up her mind about him and had suggested that he was a threat to young people during his appeal of the decision to suspend him.

Following Ms Quinn’s response to his email on the 7th of May he knew the Respondent was not being completely honest with him. This email stated that HR found out about Ms X’s allegation the 14th of April but he had heard about it through the grapevine earlier than that.

These issues affected his view of HR and the subsequent investigation meetings.

In July 2021 the Complainant’s appeal was successful, arising from the decision of the Circuit Court both the conviction and the charge didn’t exist. At this point he asked to go back to work and thought the Respondent’s investigation into that matter should have ended. However the Respondent decided to proceed regardless.

The Complainant felt the two investigation reports were delayed until both completed because of the decision to lump together the two issues into one process.

The Complainant is of the view that some of the findings of fact made by Ms McKenna were strange. He thought they were incorrect to consider the matter of his District Court conviction after the Circuit Court dismissed it on appeal. Time lapse regarding Ms X’s allegation had prejudiced his position. The Complainant believes his dismissal was preordained.

Since his dismissal he has found it extremely difficult to obtain work. He occupied a relatively niche role at a senior level as there are few “estates” large enough to necessitate a role like his. He has been seeking work abroad. 

A senior colleague had made statements that to the effect that he’d never work again.

At the time of his dismissal he was earning a little over €120k and was a member of the master pension scheme, which is the better DB scheme. He has 10 years left until retirement and his dismissal will reduce his pension entitlements between a third and a quarter.

He has continued to look for work and is training as a commercial vehicle driver. He expects to earn somewhere between €35,000 and €40,000 when he starts this job. 

The Complainant was cross examined by Rosemary Mallon.

Under cross examination the Complainant outlined the view that there is a scale of seriousness regarding sexual assault and not all sexual assaults are necessarily serious, specifically some form of less significant touching which was unintentional would necessarily be serious, it depends on the experience of the person. Any unwanted touching which is intentional is serious.

The Complainant accepted that Ms Callaghan, didn’t have much information about the underlying matter as the Complainant felt he could not share this information under such an adversarial setting.

The Complainant did not believe he was evasive under questioning and that he answered the questions put to him that he needed to answer. He believed they were trying to get rid of him so was defensive. 

One of the issues that contributed significantly to his defensiveness was hearing what was happening in early April before being told by HR. The Complainant at first indicated he did not remember who told him unofficially about Ms X’s allegation but then under further questioning indicated that he would not name anyone as it would be unfair to them.                  

The Complainant then reviewed the minutes of the disciplinary hearing and agreed that he said he could remember the party where the incident concerning Ms X allegedly took place. The Complainant had asked potential witnesses about the party but they could remember nothing notable from the night. These inquiries were conducted by the Complainant post investigation but before the final report issued. 

Ultimately the Complainant could not remember meeting Ms X and does not think that the alleged action is something he would do.

The Complainant was taken to section in the minutes of the disciplinary hearing where he states that “at that time I had a very bad relationship with alcohol. I am not saying that it didn’t happen. I don’t know. I don’t recall it, but I accept that it might have happened, yes”.

The Complainant suggested that he was referring to the act of meeting Ms X at the party not the alleged act of sexual harassment. Ms Mallon challenged him as to whether this was credible and referred him to the other parts of the minutes where the word “incident” was used.

The Complainant was of the view that the Respondent should have followed the pre-investigation steps and that these could have resolved the matter.

The Complainant does believe Ms McKenna was independent but thinks the process in general was predetermined.  This was because the investigation into Ms X’s allegation was at first conducted under the disciplinary process and not changed to Dignity and Respect until he asked about it. There was an unexplained delay at the start of the process and information was not shared with him. 

The Complainant didn’t ask to cross examine anyone but because he didn’t know it was a possibility.

The Complaint accepted that he did not tell HR until he was convicted in the District Court and if he had gotten the benefit of the Probation Act at that point he probably would have kept the matter private. He does not believe he would have been obliged to tell them in that case.

The Respondent provided detailed written submissions which explained the sequence of events which led to the Complainant’s dismissal and the processes followed.

They assert that the Complainant was dismissed for gross misconduct following an extensive and independent process which entirely respected his rights.

Much of the Respondent’s position was laid out by their witnesses in evidence. Questions put to the witnesses tended to deal with the two investigations separately, that is the investigation into the Complainant’s conviction in the District Court and related matters and then the investigation into Ms X’s allegation. Both of the investigation reports were considered together in the resulting disciplinary hearing which was chaired by Ms Callaghan who decided on the Complainant’s dismissal.

Evidence of Mary Leahy

Mary Leahy is the head of Employee Relations at TCD. She often oversees investigations. She reports to Ms Antionette Quinn, the Director of HR.

Ms Leahy confirmed that she was involved with appointing Mairead McKenna BL as an independent investigator following the Respondent becoming aware of the Complainant’s conviction in the District Court. This investigation was initiated under the disciplinary process.

When Ms Leahy and Ms Quinn became aware of the allegation made Ms X a few weeks later Ms McKenna was tasked with investigating this matter also.  The terms of reference of this second investigation were issued but stated in error that that investigation was to be conducted under the Disciplinary Policy rather than the Dignity and Respect Policy. When this mistake was realised, it was corrected.

There was an informal process in the Dignity and Respect policy. Ms Leahy was of the view that though Ms X’s allegation fell under this policy the informal process could not proceed because the Ms X had submitted a formal complaint.

Ms X had submitted two complaints via the Provost’s office, one concerning the Complainant and the other concerning her former line manager. Both matters were investigated, though the matter concerning Ms X’s line manager was investigated by a different independent investigator. Ms X had been trying to raise complaints concerning her line manager for a number of years since her departure from the college however it this was only investigated after the Provost’s office received her email with the additional allegation concerning the Complainant. This email was sent by Ms X after she had heard about the Complainant’s conviction.  

Ms Leahy and Ms Quinn only became aware of each of Ms X’s allegations following the referral of the above mentioned email by the Provost’s office to the HR Department. They felt an investigation was necessary once the matter had come to their attention. Though Ms X was no longer an employee she had been employed by the Respondent at the time of the alleged incidents. Ms Leahy provided context that, generally, there had been a sea change in the sector regarding sexual harassment and other related matters. The approach being taken by universities was actively changing in line with the Consent Framework issued by the Government. There was no prohibition on examining complaints which concerned allegations that were more than 6 months old. Ms Leahy was satisfied that Ms McKenna, in the course of her investigation, considered whether delay would create any issues in reaching a fair conclusion.

Ms Leahy was also involved with arranging the subsequent disciplinary hearing. The Complainant disputed first decision maker appointed to carry out the disciplinary hearing. He didn’t raise an issue with Ms Callaghan who was subsequently appointed and ultimately made the decision to dismiss him.

Ms Leahy outlined the process followed by the Respondent. That following the investigation reports having issued they were presented at the disciplinary hearing by Ms Quinn.

Ms Leahy confirmed that the Complainant was represented by a colleague at various points in the process. The colleague was not available for one of the disciplinary hearing meetings, but the Complainant wanted to proceed regardless.

Since the Complainant was dismissed, his role has been split into two roles. The Complainant had suggested that this was to frustrate any attempt at his return. Ms Leahy explained that roles are reviewed when they are vacated. In this case it was determined that the Complainant’s role required two full time staff at the same grade as the Complainant to fulfil.  Both roles are paid at the same salary the Complainant was. One role has been filled, the other is still within the recruitment process.

Ms Leahy was cross examined by Mr Shearer.

She confirmed that she drafted the terms of reference of the investigation in consultation with Ms McKenna.

Ms Leahy agreed with Mr Shearer that the issue of the delay in Ms X’s allegation was ultimately one of jurisdiction and needed to be determined by the Respondent rather than the investigator.

Ms Leahy confirmed that the HR department did not receive Ms X’s complaint until the 14th of April 2021. Any issues relating to the of jurisdiction of the Respondent to investigate that complaint decided that day and investigation was referred to Ms McKenna. There was no referral of the allegation to the Complainant to see if he could remember the Christmas party in question.

Ms Leahy determined that there was no prejudice caused to the Complainant in letting the investigation proceed by reviewing the timeline. She also considered it relevant that Ms X had previously brought the matter to her line manager.

The Complainant subsequently submitted a DSAR. While gathering documents to comply with this DSAR the HR department realised that the investigation into Ms X’s allegation had proceeded under the wrong policy, that being the Disciplinary policy rather than the Dignity and Respect policy.

Ms Leahy disputed that this was an example of the Respondent predetermining the matter and that it was simply a mistake. Ms Leahy is of the view that it would be pointless to restart the investigation when the error was discovered as it would only mean that the same interview would be repeated.

Ms Leahy also disputed that the error was revealed because the Complainant pointed it out in his email of 4th of May 2021. The DSAR and this email were around the same time.

Ms Leahy confirmed that they referred to refer the matter to investigation rather than first allow for an exchange of written statements as proscribed in the Dignity and Respect policy. 

Ms Leahy confirmed that Ms X’s only witness to the alleged action had seen Ms X’s complaint. This was sent to her by Ms X. Ms Leahy agreed that this was not ideal but considered it a matter for the investigator.

Ms Leahy disagreed with the Respondent’s previous approach in 2019 when the HR Department decided not investigate Ms X’s other complaints concerning her former line manager, because Ms X was no longer an employee. She explained that the sector had changed a lot in recent years.

Ms X had also sent an email to the Provost in 2020 which had been overlooked as it went to his personal email address which is not monitored. Neither this nor Ms X’s exit interview mentioned the Complainant. This gave Ms Leahy pause for thought but she still considered that the allegation warranted investigation. It was a serious allegation.

Cross examination then moved to the Respondent’s other investigation concerning the Complainant’s conviction in the District Court and related issues.

Mr Shearer referred Ms Leahy to the email she and Ms Quinn drafted on the 7th May 2021. This email clarified the scope of the investigation and what was meant by the term, related issues. Ms Leahy accepted that the Complainant was not advised that his failure to tell the Respondent about the pending District Court case was considered a related issue. 

When the Complainant decided to appeal his District Court conviction, he asked for the Respondent to pause the investigation. Ms Leahy did not believe this would be appropriate as they didn’t want to delay matters and they didn’t know how long the appeals process would take.

Ms Leahy is of the view that the Circuit Court appeal did not fundamentally alter the situation as the Complainant’s guilty plea stood.

Mr Shearer then asked about a different employee of the Respondent, Mr Y, who had engaged in sexual harassment and inappropriate behaviour with students and had been drinking on the job. Ms Leahy confirmed that this was a while ago but that she remembered Mr Y getting final written warning and training. Ultimately Mr Y resigned in anticipation of being dismissed.

Mr Shearer raised comments made by the Complainant’s immediate line manager Mr Clarke and his line manager in turn Ms Cunningham which are contained in the investigation report. The Complainant’s case is that these comments had predetermined the disciplinary hearing. Ms Leahy agreed that these comments probably shouldn’t have been made.

When the hearing resumed in January 2023 Ms Leahy was asked to clarify her evidence as an issue had been identified. Ms Leahy confirmed that HR was notified of Ms X’s complaint a week earlier than she had previously stated. She was mistaken this at the first day when she indicated that HR had been told on the 14th of April about Ms X’s complaint.

Since the first day of hearings Ms Leahy had reviewed her emails. The HR Department received an email on the 8th of April 2021 from the Secretary’s office concerning Ms X’s email to the Provost.

Evidence of Mairead McKenna SC

Ms McKenna was instructed by the Respondent to carry out two investigations concerning the Complainant. She had never acted for them in the past as far as she is aware. It is possible that she may have acted on their behalf through an insurance company at some previous point, she can find no record of it if she did, but she is sure she had never been instructed by solicitors acting directly for the Respondent. 

Ms McKenna interviewed Ms X once while the terms of reference of that investigation still mentioned the disciplinary procedure. When the error in policies was identified she did not think the interview needed to be conducted a second time. Ultimately her approach to interviews remains the same. That they need to be conducted in a fair manner with proper regard to natural justice. If she reinterviewed anyone it would have been to ask them the exact same questions. 

Ms McKenna does not accept that she had been adversarial in her dealings with the Complainant. She had been conducting investigations for many years and always tries to have a process which gives each person the best opportunity to provide their version of events.

The Complainant was not forthcoming and tended not to answer questions. He would often refuse to speak about the substantive subject he had been asked about or he would ask Ms McKenna questions. Ms McKenna would then be required to refer him back to the question at hand.

There was no attempt to influence the outcome of the investigation by the Respondent. Ms McKenna is clear that she would not be leaned on in any way and that no such attempt had been made. She was completely open minded and happy to arrive at any conclusion, even if that was unpopular.

All administrative correspondence was shared with the Complainant in this case because he was querying what he had been sent. One email was overlooked and not shared but once this was discovered it was sent to him. There was nothing that Ms McKenna viewed that the Complainant didn’t see.

When Ms McKenna was investigating the Complainant’s District Court conviction, she sought information from him regarding the nature of the charge and the facts around that. Though it was a criminal matter she was carrying out an employment law investigation on behalf of the Complainant’s employer. The surrounding facts were important in that context. She asked the Complainant to tell her what happened, to give her the facts of the matter and any mitigating circumstances. However the Complainant refused to engage on these issues.

Ms McKenna believed she had scope to investigate as the matter as it evolved during the course of the investigation, that is as the Complainant’s appeal to the Circuit Court progressed and succeeded.  

I asked Ms McKenna about the inclusion of the comments of Mr Clark, the Complainant’s line manager, and Ms Cunningham,  the Chief Operations Manager, contained in the investigation report. Ms McKenna felt it was important to hear from the University on the matter and Mr Clark was proposed as the Complainant’s line manager and he in turn proposed Ms Cunningham.  Ms McKenna was keen to understand the approach of the university. Another person was suggested but didn’t want to come onto the record.

Ms McKenna’s testimony then moved to the investigation concerning Ms X’s allegations.

There was one email sent to her by Ms X which she indicated that she didn’t want to share the contents with the Complainant. As a result of this Ms McKenna didn’t read this document.

Ms McKenna was alive to the issue of prejudice in this investigation she couldn’t identify any actual prejudice. For instance, while there was delay Ms McKenna the were no unobtainable witnesses resulting from the delay.

The Complainant never said to her that the incident didn’t happen. The Complainant never presented any sort of character witness to suggest that he doesn’t act like this at parties nor did he himself say that this is something he would not do. He just said that he could not remember the night in question. 

The pub where the Christmas party was held and date of the party were identified in the course of the investigation.

Ms McKenna was cross examined by Mr Shearer.

Mr Shearer clarified that the case is not being made that there was a lack of independence or expedition concerning Ms McKenna’s investigation.

Ms McKenna clarified that she sent the full minutes of Ms X’s interview to the Complainant but not the Respondent. She was unaware of the exchange of written statements outlined in the Dignity and Respect policy.

Ms McKenna was aware of the list of approved persons who can accompany a student or employee to an investigation meeting. She agrees that Ms X’s person accompanying her, a County Councillor, did not fall under the list. However she generally allows a person to be accompanied by who they prefer to bring and Ms X was no longer an employee of the Respondent so did not have access to the people outlined in the policy.

Ms McKenna had no view as to whether the policy allowed for investigations into complaints made by a former employee. It was a matter for the Respondent.

Ms McKenna does not believe she was made aware of the issue that Ms X’s complaint was shared with her witness, before the investigation process. The Complainant brought this to her attention during the course of the investigation. Ms McKenna directed Ms X and the witness not to talk during the course of the investigation.

Ms McKenna did not see the sharing of Ms X’s complaint pre investigation as a particularly big issue. Ms X was upfront that the witness was both her friend and was her witness. In Ms McKenna’s experience people involved in employment disputes often talk to each other and people usually give evidence supportive of “their” person.

Ultimately it was up to Ms McKenna to interview each person and stress test their evidence. She had the opportunity to observe both Ms X and the witness and considered that they were credible.

Ms McKenna didn’t have another version of events to put to Ms X and the witness. The Complainant had not deny the allegations, he only said he didn’t remember. While the Complainant did not remember meeting Ms X on the night in question he never denied the allegations on the basis that this is not something he would have ever done.

Ms Mckenna did question Ms X about her delay in making the complaint, but she did not have sight of her previous complaints where she did not mention the Complainant.

There was no request made by the Complainant to cross examine either Ms X or her witness. Ms McKenna is clear she would have been open to facilitating such a request. She did not proactively suggest or offer cross examination as an option to the Complainant. 

The Complainant was not legally represented at that time. However, Ms McKenna was quite confident that the Complainant was comfortable about the representation he had. At that time he was taking legal advice and he seemed well versed in relation to his rights. He was clearly not vulnerable and was well able to challenge her in her role as investigator when he had concerns about the process.

Mr Shearer then referred Ms McKenna to the investigation surrounding the Complainant’s District Court conviction. Ms McKenna accepts that on appeal the Complainant was given the benefit of the probation act. While there was no formal conviction at that point she did not see it as black and white.

Ms McKenna still considered it a serious matter. There had been an allegation of sexual assault which was prosecuted. The Complainant had pleaded guilty. The District Court had convicted him and given him a suspended sentence. The matter was appealed to the Circuit Court and he was given the probation act at that point. Taken altogether, this sequence of events was serious.

The Complainant provided no detail of the underlying incident. He never provided any context or any mitigating circumstances. Ms McKenna was clear that she was open to considering such information and that may have had an impact on the outcome of her report. While the Complainant told her that the prosecuting Garda had said it was at the lower end of the scale she had nothing in front of her to that effect. She was given a copy of the Circuit Court order which had been partially redacted by the Complainant.

Evidence of Ms Patricia Callaghan

Ms Callaghan joined the Respondent’s staff in 2001, she is now Academic Secretary. She had no prior dealings with the Complainant but would have recognised him from around campus. She knew him as a senior colleague. She wrote to the Complainant on the 6th of October 2021 inviting him to a disciplinary hearing which was ultimately held on the 28th of October 2021 following some scheduling issues. 

The Complainant attended the hearing on the 28th of October however the person who had been accompanying him to meetings was not available. Ms Callaghan would have adjourned so they could be accommodated by the Complainant wanted to go ahead.

Ms Callaghan states that being decision maker in this case was not an easy task and the decision wore heavily on her. She felt a lot of empathy for the Complainant and from the outset hoped to avoid making the decision to dismiss. She read Ms McKenna’s report a number of times.

In particular, Ms Callaghan searched for a genuine expression of remorse on the part of the Complainant both in her reading of the report and throughout the disciplinary hearing.  Ultimately she that Complainant had a lack of awareness of the gravity of his behaviour and its impact on the Respondent.

Ms Callaghan expects that the Complainant had a very difficult two and a half years leading up to the District Court hearing. However, she believed that his failure to speak to his manager before the hearing a sign of lack of maturity on his part. He had put his manager and the Respondent in a in a terrible position by not doing so. He seemed to have no understanding of this.

The question of the relevance of the Complainant’s appeal to the Circuit Court caused her quite a lot of worry. While she felt Ms McKenna’s report explained the position well she wasn’t entirely satisfied and took legal advice. Following this advice she was confident in her understanding that the Complainant’s guilty plea stood and as such the underlying offence occurred. The Respondent could not ignore this.

Ms Callaghan did not just simply accept the two reports produced by Ms McKenna. She was concerned about the time lapse in the second report concerning Ms X’s allegation. However the Complainant never denied the allegation. He never said it was not in his character to do something like that. This was worrying from the Respondent’s point of view.  She accepted the outcome of the report though it didn’t factor into her decision as much as the other investigation report concerning his conviction in the District Court and related matters. 

Ms Callaghan felt the Complainant consistently demonstrated a lack of genuine remorse and understanding of his actions.  He stated that he pleaded guilty to avoid forcing the woman in question to attend a trial but also because it gave him the opportunity to avail of the Probation Act. The Complainant never said that he had pleaded guilty because he was guilty.

While the Complainant indicated that the offence was at the low end of the scale she had no further context. The offence might not have been on the lower end of the scale from the point of view of the victim.

Ms Callaghan is of the view that the University must also be concerned about safety of students as well as the colleges reputation. The issue of sexual assault is really significant in that context, prospective students do online research about the places they are considering for University and are going to make decisions about where they are going to go based on that research.

Ms Callaghan took the view that the Complainant gambled on getting the Probation Act in the District Court and that it didn’t come out the way he thought it would. This doesn’t show remorse. When, during the WRC hearing, it was pointed out to Ms Callaghan that other staff might have pleaded guilty to crimes and gotten the Probation Act unbeknownst to the University she took a very negative view of that position. She accepted that this is a reality but that it doesn’t make it right.

Ms Callaghan didn’t see any evidence that there had had been any sort of interference and was not influenced by any other person.

The Complainant had many opportunities to demonstrate remorse or understanding or provide context but did not do so. This meant that final written warning was not an acceptable outcome.

I asked Ms Callaghan about the comments of Mr Clarke and Ms Cunningham contained in the investigation report. Ms Callaghan did not place much emphasis on their contribution. She felt she had an obligation to come to a decision based on her understanding of the Complainant’s case. Ms Callaghan’s sense was that Mr Clarke and Ms Cunningham held view any manager would towards any member of staff in a similar to the Complainant. It was not exclusive to the Complainant and as such did not really factor into her decision. 

Ms Callaghan was cross examined by Mr Shearer.

Ms Callaghan reiterated that she did have a concern about the delay in Ms X’s allegation but that she didn’t make a decision in regarding delay. She relied in part on the Complainant stating in the disciplinary hearing that the incident could have happened. However, she accepted that she was concerned about that report and took legal advice. Ms Mallon had no objection to her detailing this advice in the hearing. The advice was that she had to decide whether she thought any actual prejudice arose from the delay and any other procedural issues, she did not.

Her view was that the failure to initiate the investigation under the right policy interrupted the flow of the investigation but it didn’t prejudice the Complainant. The situation was rectified by correcting the terms of reference.

She did not put these concerns in the final decision because she did not think that was the place for them.          

She did not accept the Complainant’s position that the matter should have concluded after the Circuit Court applied the Probation Act. She understands that there is an inherent logic to the Complaint’s position but that it contributed to a sense that he had a lack of remorse.

Mr Shearer suggested that the Complainant did show remorse. That he plead guilty, notified the Respondent that he had started counselling and that he recognised he had previously bad relationship with alcohol. Mc Callaghan was glad to hear him raise these issues but they weighed against the other statements he had made throughout the process.

Ms Callaghan accepts that the Complainant had his concerns about the process but there was sufficient time between the investigation and the hearing to give him a bit of distance. The disciplinary hearing was an opportunity to come clean.

Ms Callaghan does not accept that if there is a sexual assault charge of any nature concerning any employee of the Respondent that it would necessarily have to result in dismissal. She made a decision in the round, there were several issues which together brought the matter over the line to warrant dismissal.

Evidence of Ms Antoinette Quinn

Ms Quinn is the Respondent’s Director of HR. On the 24th of March 2021 she was called by the Complainant on his way from the District Court, immediately following his conviction. She emailed him later that day invited him to go off duty with pay if he declined there would be a suspension hearing. This was a neutral holding suspension. The following morning the Complainant replied to her email and agreed going off duty with pay.  He was referred to the Employee Assistance Program.

On 30th of March 2021 the Complainant wrote to Ms Quinn indicating that he was appealing the District Court conviction and wanted to return to work. A hearing into the suspension was held and Ms Quinn concluded that the Complainant ought to remain suspended until the conclusion of the investigations.

The Respondent understood that the Complaint had pleaded guilty. She believes that all sexual assaults are considered serious in the context of working for a university.

When Ms X’s allegation came to the attention of HR they had already drafted terms of reference for the investigation concerning the Complainant’s conviction in the District Court. These terms of reference were drafted under the disciplinary policy and in error HR put the investigation into Ms X’s complaint under that policy.  When this error was flagged, they reissued the terms of reference under the Dignity and Respect Policy.

Ms X’s allegation seemed like a serious complaint. HR thought that it warranted investigation as they are required to provide a safe place of work. It was not unprecedented that an investigation would be initiated following a complaint made by a former employee.

Following the Complainant’s dismissal on the 6th of April 2022, HR reviewed the resulting vacancy and concluded that the role was in fact two roles that each needed to be covered. Since the outbreak of Covid-19 issues regarding campus management had become particularly important and time consuming. They went through the process to get approval for the additional role and approval was given on the 30th of June.

Ms Quinn was cross examined by Mr Shearer.

Ms Quinn reiterated her view that all sexual assaults were serious. She does not know where a line could be drawn to say a sexual assault was not serious.

Ms Quinn accepted that some technical aspects of the Dignity and Respect policy were not adhered to but that the spirit of the policy was adhered to.  The failure of HR to exchange both Ms X’s and the Complainant’s written accounts of the party in question before the matter was investigated, as mandated by the policy, was a mistake rather than a deliberate omission. She accepted that in hindsight it might have teased out some of the issues. It is possible that such an exchange might have dealt with a need to investigate, but this is unlikely.

Ms Quinn rejected the suggestion that this matter was investigated as a result of pressure from the Provost.

Ms Quinn disagreed that she should have discontinued the investigation into the District Court conviction once the Circuit Court Appeal had concluded. She understood that the guilty plea still stood but essentially the penalty had changed. The underlying facts remained proven. 

The Law

It is common case that the Complainant has the requisite service to be covered by the protections afforded under the Unfair Dismissals Act.

Section 6 of the Unfair Dismissals Act outlines that any dismissal is an unfair dismissal contrary to the act, unless there are substantial grounds justifying the dismissal. It is for the Respondent to prove that such grounds exist and that they were the cause of the dismissal.

The Respondent argues they were entitled to dismiss the Complainant as Subsection 4 (b) provides that a dismissal shall not be an unfair dismissal if it results wholly or mainly from the conduct of the employee.

In examining the reasons given for the Respondent’s decision to dismiss, the approach I am required to take is well established. As outlined in British Leyland v Swift and endorsed in this jurisdiction in Bank of Ireland v Reilly, my role is not to take over the role of the Respondent consider whether in my view that the conduct of the Complainant ought to have resulted in his dismissal, but rather whether a reasonable employer might have reasonably dismissed him for the reasons given. An element of discretion is given to the Respondent in this approach by recognising that a band of reasonableness exists within which one employer might reasonably decide to dismiss but another might reasonably decide not to.

Section 6 requires the Respondent to demonstrate not just that “substantial grounds” exist which establish that the dismissal was within the “band of reasonableness” but that the dismissal occurred because of those “substantial grounds.” As such a key issue to be determined in any Unfair Dismissal Act case is whether the “substantial grounds” put forward by the Respondent were properly arrived at, that is arrived at following a fair process. The Respondent has pointed me to the High Court decision in Loftus and Healy v An Bord Telecom.  This case concerned an employer’s decision to dismiss two employees because the employer believed that they had assaulted a third employee. In his decision Mr Justice Barron concluded that the assault had occurred. He then considered a number of potential deficiencies the process which the employer had undertaken in dismissing the employees. In doing so he stated as follows: “The question however is not whether the Plaintiffs were deprived of procedures to which they were entitled, but whether the denial to them of such procedures is such that the Defendant must be deemed to have failed to establish the assault as the whole or main reason for justifying their dismissal.” I agree that I ought to consider matters relating to the procedures followed in this case with regard to the above approach.

Pre-Investigation Matters

As I outlined in the hearing I have limited jurisdiction to consider matters related to the decision of the Respondent to launch investigations related to the Complainant. Broadly speaking, any organisation has the right to investigate any matter it considers pertinent to its own affairs.

At times the decision to launch an investigation can show evidence of predetermination of the outcome of the investigation and related processes, which is relevant to a case for Unfair Dismissal.

The Complainant has raised a number of issues which he argues demonstrates that the investigation concerning Ms X’s allegation and resulting disciplinary process were unfair. I will consider each in turn.

The first concerns the fact that Ms X had been raising her concerns regarding her line manager for a number of years and that on at least one occasion the Respondent’s HR Department had refused to investigate these issues because she was a former member of staff. The Complainant points out that this approach changes when an allegation of sexual harassment arose against him and suggests this was only pursued by the Respondent as they had decided to dismiss him following the fallout from his conviction at the District Court. This allegation was sent by Ms X to the Provost’s Office in April following her having heard about his conviction at the District Court. Ms Leahy, the Respondent’s Head of Employee Relations, explained that there has been a sea change in attitudes to bullying and harassment in University sector since Ms X began submitting complainants against her line manager and that she felt her predecessor got it wrong in failing to investigate the matter of Ms X’s line manager because Ms X left the Respondent’s service. I see no reason to disregard this explanation. Employers, particularly public sector employers, are required to react to changing norms and standards.

The Complainant made several technical arguments regarding the wording of the Dignity and Respect policy and the investigation of Ms X’s allegation, including that there was no jurisdiction under the policy for the Respondent to investigate the matter as Ms X was a former member of staff. I see no basis under the Unfair Dismissal Act for me to decide that an employer was prohibited from even looking into a matter because of the wording of one of their own internal policies. While adhering to policies is important for consistency and transparency, departure from their strict wording is does not make a dismissal unfair. It is only an issue where the departure results in some actual substantive unfairness to the Complainant, I can see no such unfairness arising solely because of the decision to investigate Ms X’s allegation under the Dignity and Respect policy, indeed if the Respondent was of the view that this was not open to them then it would likely leave the Disciplinary policy as the relevant policy under which to examine the alleged misconduct.

Related to this issue was an inaccuracy in one of the Respondent’s email to the Complainant and in evidence (specifically Ms Leahy’s). The Respondent’s HR department had stated that they became aware of Ms X’s allegation on the 14th of April when the Provost replied to it with them cc’d. In fact they had been informed on the 8th of April in a separate email. This coincided with the Complainant having heard, through the grapevine that there was allegation against him that he was yet to be informed about and that this was sure to result in his dismissal. 

I cannot rely on the hearsay evidence provided by the Complainant and I see no reason to discount the evidence of Ms Leahy and Ms Quinn that this issue was simply a mistake.

The Complainant has also queried the decision to refer the matter of Ms X’s allegation straight to Ms McKenna for investigation. He is correct that this policy requires an exchange of written statements at the start of an investigation and that this was not done. Mr Shearer had suggested that if this step had been taken it might have dealt with the matter without the need for investigation. That may have been the case but just because a process failed to utilise an opportunity to resolve an issue without investigation does not render that investigation unfair.

The Complainant also raised the issue of the matter being, at first, investigated under the disciplinary policy terms of reference rather than the Dignity and Respect Policy. Ms McKenna gave convincing evidence that this would not have affected the interview conducted under the wrong policy and Ms Leahy and Ms Quinn are clear that the reference to the disciplinary policy was a mistake. I don’t see how this mistake resulted in any unfairness to the Respondent.

Generally, the Complainant’s side argued that these matters together showed that the Respondent was determined to move Ms X’s allegation to a formal investigative process no matter what. If this is the case it would, in my view, be understandable. The Respondent had an obligation to provide a safe place of work and study and the Respondent’s HR Department had legitimate grounds to be wary of the Complainant as he had just pleaded guilty to sexual assault. An allegation of sexual harassment came to their attention shortly thereafter and they decided that this needed to be properly investigated and the facts established. There is nothing notably unfair or unreasonable about that course of action.

Investigation and Disciplinary Hearing

Notwithstanding the fact that I see nothing wrong with the Respondent deciding to initiate an investigation partially on the basis of the Complainant’s damaged reputation, I do agree with the Complainant that the Respondent HR Department had likely formed a view of him at that point. I think this is evident from the comments made by Ms Quinn during the suspension process and in her evidence to the WRC a year and a half later.  As such it is for the Respondent to establish that their HR Department’s views regarding the Complainant did not predetermine the outcome of either the investigation or the disciplinary hearing. The investigation process was handled by Ms McKenna, it is common case that she was entirely independent in her role. Ms Callaghan, the Academic Secretary of the Respondent, was the decision maker. Following her evidence, I am of the view that she fulfilled her role independently. While I note that HR continued to have an administrative role in the process and Ms Quinn performed the role of presenting the investigation Report at the disciplinary hearing, I see no reason to think the outcome was not independently arrived at by Ms Callaghan. I also note that when Ms Callaghan sought advice she was put directly in contact with the Respondent’s solicitors. There is no evidence that HR had any input into her reasoning or final decision.

The Complainant has raised concerns about other aspects of the investigation process which he argues resulted in his unfair dismissal.

In May 2021 he sought to clarify the scope of the investigation regarding his District Court conviction and “related matters.” HR responded to the Complainant’s request and provided a list of “related matters.” This list did not include his failure to tell the Respondent about the pending District Court case. This is undoubtably a flaw in the process as this failure was one of the major reasons the Respondent dismissed the Complainant. I can see no reason for the ambiguity in May 2021 as to whether this issue would be part of the investigation. However, on review of the documents supplied from the investigation process, specifically the transcript of Mr Clark’s interview which was given to the Complainant before he was interviewed by Ms McKenna, I am satisfied that the Complainant knew that this issue was live and something that could result in his potential dismissal before he was interviewed.  As such I can see no actual unfairness arising from the omission in HR’s email of the 7th of May.

Another issue raised by the Complainant was the delay in investigating Ms X’s allegation. It was established clearly in cross examination that the night and location in question were identified during the course of the investigation. It was further established that the Complainant was able to source potential witnesses, though they did not remember anything special about the night in question. I would agree with Ms McKenna that the Complainant did not actually suffer any prejudice arising solely out of the delay. I also note that Ms McKenna was satisfied in the evidence provided by Ms X and her witness. I think this view was reasonably formed by an experienced investigator and was something the Respondent was entitled to rely on.

While the Complainant maintained he had no memory of meeting Ms X I must note the remarks made by him in the minutes of the disciplinary hearing where he appears to state that the incident may well have happened. Regardless of his explanation in the WRC hearing some 14 months later as to what he meant by this statement, I am satisfied that when Ms Callaghan was making her decision at that time she was reasonable in concluding that he was not denying the allegation and that, on the balance of probabilities, the Complainant had sexually harassed Ms X in the manner alleged.

The Complainant has argued in written submissions that parts of the investigation report prejudged the outcome of the disciplinary hearing chaired by Ms Callaghan.  This argument was not pursued by the Complainant’s representative during the course of the hearing and in cross examination of the Respondent witnesses, except regarding Ms Leahy who had no involvement with the report or the decision to dismiss. The investigation report included comments made by the Complainant’s line manager Mr Clark as well as Ms Cunningham whom both the Complainant and Mr Clark worked under. The comments made by Mr Clark are to the effect that he would not even consider an application to for the Complainant’s role made by someone with the same conviction as him. Ms Cunningham’s remarks are to the effect that she could not see how the Complainant could continue to perform his role. I asked Ms McKenna why these comments were contained in the report and she stated that she felt they were necessary to provide the University’s view.

The Complainant’s position is that the disciplinary hearing could not be fair and independent because the people he had reported to had already determined that he should be dismissed and that these views were highlighted to the decision maker before the outcome of the hearing. Throughout the course of the hearing, I tended to agree with the Complainant on this issue, I see these comments as a potentially serious flaw in the process. They created a real concern that the Respondent had dismissed the Complainant not because of the “substantial grounds” they have identified but because the Respondent’s management had already decided that his position was untenable. Ms Callaghan gave evidence on her decision-making process for over an hour and was subject to rigorous cross examination. During the course of her evidence, she went into considerable detail as to what factored into her decision. Mr Clark and Ms Cunningham’s comments did not feature in this evidence. I asked her outright what consideration she gave to these comments, and she stated that she did not attach huge importance to them. Her view was that Mr Clark and Ms Cunningham’s views were not unique to the Complainant and that they would have been the views of the immediate management of any employee in a similar circumstance. Ms Callaghan went to great lengths to consider the Complainant’s case and alternatives to dismissal. I am satisfied that though the comments of Mr Clark and Ms Cunningham should not have been included in the investigation report they did not result in the disciplinary hearing being prejudged and were not the reason for the Complainant’s dismissal. I would stress that I only feel comfortable in coming to this conclusion because Ms Callaghan was an exceptionally thorough and credible witness who was able to demonstrate in detail how she came to her decision.  

The Decision to Dismiss

The Complainant pleaded guilty to sexual assault contrary to Section 2 of the Criminal Law Amendment Act 1990 on the 24th of March 2021, he was sentenced to 3 months in prison with the sentence suspended and fined €1000. Shortly thereafter the Complainant appealed the matter to the Circuit Court. On the 22nd of July 2021 in the Dublin Circuit Court gave the Complainant the benefit of the Probation Act and the charge was dismissed.

The Complainant, throughout the disciplinary process, took the view that his conviction in the District Court had been overturned by the Circuit Court. He has argued that at that point the investigation should have ceased as the charge and conviction no longer existed. He is of the view that the matter could not have formed the basis of any lawful decision to dismiss him. The Respondent in turn argued that after his appeal the charge of sexual assault remained proven and his guilty plea stood and that this was prerequisite to him obtaining the benefit of the Probation Act.

Much advice was sought by both sides as to what the Probation Act means and whether the charge or conviction still existed in the legal sense. However, I am of view is that this debate is largely not at issue in the case before me. The protections outlined in the Unfair Dismissals Act and the options available to the Courts in the Probation Act do not dovetail and this decision is not an attempt to reconcile the two or make one follow on from the other.

For me to decide, because the Circuit Court applied the Probation Act, that the Respondent was required to ignore the Complainant’s guilty plea and his conviction at the District Court, I believe the Probation Act would need to expressly provide the offender with additional employment related protections.  It does not.

The Complainant has also argued that the offence was on the lower end of the scale and if the matter was to be the basis of a disciplinary process, then it fell outside the “band of reasonableness” outlined in British Leyland v Swift. Regarding this point I believe there was some mixing of words in the hearing. There was extensive questioning as to whether all sexual assaults are necessarily serious. A confusion arose as a serious sexual assault is understood to mean a sexual assault being serious as compared to other sexual assaults. Therefore, not all sexual assaults are serious sexual assaults. This is distinct to holding the view that any sexual assault is a serious matter.

The Complainant pleaded guilty to sexual assault, if he wanted the Respondent to take the view that the sexual assault itself was of a degree of seriousness which did not justify dismissal it was for him to provide the circumstances and relevant details to the Respondent. Both Ms McKenna and Ms Callaghan appear to have been open to him providing such information and were clear that this might have altered investigation report and disciplinary outcome. However, the Complainant decided not to engage with them as to what happened on the 26th of June 2018. While the Complainant’s reticence to engage may have been borne out of some legitimate concerns about the Respondent’s HR Department having taken a view of him, it was still a mistake. He was a senior management figure in a high profile and publicly funded organisation which educates thousands of young adults. He was entirely aware of that context, and yet he still chose not to engage. The Complainant himself left the Respondent in a position where the only information available to them was that he had pleaded guilty, the District Court had convicted and sentenced him and later the Circuit Court had given him the benefit of the Probation Act. I am satisfied that the Respondent was entitled to consider that this sequence of events constituted serious misconduct on the part of the Complainant.

I am satisfied that Ms Callaghan was entitled to conclude that the Complainant had sexually harassed Ms X. Specifically that he mimed an oral sex act at her from across the room at a work Christmas party in December 2017. It is unclear as to whether Ms Callaghan factored the misconduct itself into her decision to dismiss.  However, a major aspect of her decision to dismiss was the Complainant’s failure to take ownership and show remorse for his actions towards both Ms X and the woman involved in the incident on the 26th of June 2018. Having reviewed the minutes of the disciplinary meeting there is an obvious basis for this decision. The Complainant never admitted to either incident or provided context and was limited in his expressions of remorse.

Ms Callaghan, in deciding to dismiss the Complainant, put a lot of emphasis on his failure to tell the Respondent of his pending Court case. He only reported this matter to the Respondent once he was convicted. Shortly thereafter there was media coverage on the issue and the Student’s Union reacted. None of this is disputed by the Complainant. He had hoped that he would get the benefit of the Probation Act in the District Court as he subsequently did in the Circuit Court and the matter would conclude unnoticed by his employer. At times his representative put the hypothetical scenario as what would have happened if the Complainant did get the benefit of the Probation Act in the District Court and the matter was never reported. This is, in my view, entirely irrelevant. This was not what happened and it was not the situation the parties were dealing with.  The Respondent was entitled to consider the Complainant’s failure to give them any advance warning of the case against him as misconduct.

In the circumstances I am satisfied that the Respondent had discretion as to whether to dismiss the Complainant. While there are flaws in the process that the utilised to arrive at that decision I am satisfied that these flaws did not result in any actual unfairness to the Complainant and that the Respondent has established substantive grounds for the dismissal.

For the reasons outlined above the Complainant was not unfairly dismissed.

Probation Act