Worker

Employer

Anonymised Parties

A Counsellor

A Health Care Service Provider

Representatives

  In person

Rachel Sweeney BL instructed by Conor White, Solicitor of Comyn Kelleher Tobin Solicitors

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00043473

09/04/2021

This dispute concerns what the AB alleges was a flawed investigation by her Employer (CD) into complaints of serious misconduct made by a Service User (SU) against AB, a Counsellor/Psychological Therapist, which allegedly took place during a counselling session on 23 June 2016. The complaint also was in respect of how AB then dealt with SU in the immediate aftermath of that session.

An Investigation report was issued by CD in July 2019, over three years after the alleged incident.

Arising from the investigation findings, two of which were upheld, AB was disciplined (in October/ November 2020) and following an internal appeal (9 February 2021) the sanction against her was initially that she be sanctioned short of dismissal (23 February 2021) which was later reduced to a demotion to a Clerical Officer Grade which took effect of 26 April 2021.

AB contends that the investigation was unduly protracted and that the process was fundamentally flawed and biased.

She seeks a recommendation that the Investigation findings be set aside and that she be restored to her role as Counsellor/ Therapist and/or that she be compensated for her losses (from 26 April 2021) since she was demoted.

CD denies that the investigation was flawed and denies the reliefs sought by the AB.

AB, the Worker in this dispute contended as follows:

1.       She was a counsellor/ psychological therapist employed by CD.

2.       SU had been receiving psychological counselling for trauma associated with a history of child sexual abuse.

3.       On 5 August 2016 SU issued a written complaint against AB arising from an event that SU said occurred during a counselling session with AB on 23 June 2016.

4.       SU alleged that during that session she saw up AB’s skirt and saw AB’s underpants. Her complaint was that this was deliberately caused by AB. SU also complained that when she raised a complaint directly with AB in the days following the session, AB’s response was defensive and inappropriate.

5.       AB was informed by her line manager that SU had made a written complaint against her on 5 August 2016 and AB was informed that the complaint would be investigated under an agreed investigation policy (The Policy)

6.       AB contends that the investigation that followed was flawed from the outset.

7.       In synopsis AB contends that:

a.       The investigation process was unduly protracted which prejudiced the investigation findings. The Policy required that an investigation should conclude within three months of commencement however the terms of reference were not issued for eighteen months after the complaint was made and the investigation findings did not issue until July 2019, three years after the complaint was made.

b.       The complaint should not have passed the preliminary screening test (23.10.23)

c.       The preliminary screening decision was taken by AB’s line manager who had been directly involved in how AB dealt with SU in the immediate aftermath of the event - which was part of what was being investigated. It was inappropriate that AB’s line manager was involved in any part of what led to the investigation. This conflict of interest was never addressed by the Investigation Team.

d.       There was a failure to progress the investigation from this point. The terms of reference of the investigation were not agreed until late 2017, eighteen months after the complaint issued.

e.       The Investigation Team decided that three issues would be considered within which the following questions were asked

1.       The Facts:

(i)                  Was AB’s underwear seen by the AB?

(ii)                Did AB respond by saying to SU “take a good look?”

2.       The Intent

(i)                  Was SU sexualised against her will?

(ii)                Did AB act in an unprofessional manner during the counselling session of 23 June 2016?

3.       The Aftermath

(i)                  Did AB behave in an unprofessional and inappropriate manner in the period following the incident of 24 June 2016?

The Investigation findings issued in July 2019 which upheld allegations 1(i) and 3 (i) above and did not uphold any of the other allegations.

g.       AB contends that the decision to uphold allegation 1 (i) was based on the Investigation team relying on what SU said together with what they misinterpreted was an admission made by AB during an investigation interview -  admitting that her underpants had been seen by SU, albeit accidentally,  when in fact the minutes of that meeting and her own case notes from the session shows that she did not make that admission, but rather said that when SU said that she had seen AB’s underwear she assured SU that it was accidental (on SU’s part) and as such was not serious.

h.       AB contends that the Investigation Team’s decision to uphold allegation 3 (i) which was extremely reputationally damaging to her, was based on a series of flawed assumptions made by the Investigation Team. Specifically –

i.         That phone recordings  of conversations between AB and SU on 4 and 5 July 2016 in the immediate aftermath of the alleged incident, which were recorded by SU without AB’s knowledge and were provided to the Investigation Team. These recordings were relied upon by the Investigation Team despite AB not being provided with these recordings and despite the Investigation Team, assuring her that these recordings would not form part of the investigation material. Despite these assurances AB’s line manager (who had listened to the recordings) was asked (during her interview)  by the Investigation Team if having heard the recordings did she consider that AB had dealt appropriately with SU during these conversations, in other words the recordings were relied upon by the Investigation Team in a hearsay fashion..

j.         These questions should never have been asked of AB’s line manager by the Investigation Team, if as they had assured AB, they would not relying on the recordings. This is  particularly unfair given that AB’s line manager additionally had a motivation to blame AB (to distract from her own involvement of the post incident dealing with SU.) This was in breach of fair procedures.  

k.       In terms of the two adverse findings that were upheld against AB, the Investigation Team also failed to confine themselves to the questions that they had posed for themselves at the start of the Investigation. The Team’s findings reached beyond what the terms of reference set out.

l.         In reaching a finding that she behaved unprofessionally and unsympathetically in AB’s dealings with SU after 23 June 2016, as well as improperly relying on opinion evidence of phone recordings (see above) the Investigation Team also relied on a finding that AB had acted defensively and shown a lack of sympathy about SU during an Investigation interview in 2018 i.e. two years after the alleged incident.  This was procedurally erroneous and in breach of fair procedures. To answer the questions that the Investigation Team had posed to themselves they should have confined their inquiry to what was known by AB on 23 June 2023 and the communication between AB and SU in the aftermath of that session. How AB presented at interview in 2018 should not have been relied upon by the Team to make a finding as to how AB treated SU in the two phone calls on 4th and 5th July 2016, because these two phone calls were the full extent of AB’s  engagement with SU after the alleged incident. And this was what the Investigation was tasked with establishing. Her waning sympathy towards SU by 2018 was not evidence to how she behaved in July 2016.  The approach taken by the Investigation Team was entirely procedurally erroneous.

m.     Furthermore, given that AB spoke to her line manager on 5 July and again 20 July 2016 about what had happened in the session on 23 June 2026 and AB’s line manager gave her instructions not to contact SU and to allow her space, which AB followed, this management instruction should have been considered by the Investigation team to decide whether or not AB had acted unprofessionally in the aftermath of the incident (by failing to make further contact with SU).  The involvement and possibility culpability of AB’s line manager was never even considered by the Investigation Team. This too was procedurally erroneous. AB’s line manager was treated by the Team as an impartial voice, when she was implicated in how SU was treated between 5 July and a month mater when SU’s complaint was received.

n.       The Investigation Team failed to confine themselves to what happened at the material time. Instead of being an investigation into what occurred on 23 June 2016 and in the immediate aftermath (confined to what was known or understood during that period) the investigation over time rolled into retrospective opinions or analysis into what had happened since and how AB had conducted herself during the investigation process, none of which were relevant to the findings that the Team were tasked to decide.  Opinions or explanations for why something may have occurred, unless it was known at the material time, were irrelevant and should not have been a consideration for them to base any findings. And yet they were.  This was a flawed process.

o.       The AB does accept that she became defensive as the investigation went on. She was under suspicion of a serious complaint of misconduct. What she was accused of was fatally undermining to her position and it ultimately led to the end of her career as a counsellor, a job that she loved which she was very good at.

p.       The evidence of SU was implausible from the start and this should have been rooted out at the start.

q.       AB followed the correct reporting process when the incident occurred (by discussing it with her colleague) and then, when SU failed to attend, by reporting the issue to her line manager. She then followed her line manager’s advice by allowing the AB the space that she might need but at the same time remaining open to the SU contacting her. All of this was sanctioned by her line manager.

r.        She accepts that she did not record every detail  of the sessions with SU in her case notes. She accepts that this could have been better but that was because what occurred in previous sessions did not seem remarkable or noteworthy when they happened. It was only in hindsight that AB began to consider that there were earlier warning signs in SU’s presentation in earlier sessions.

s.        When SU first raised the issue with AB, AB did not consider it to be a serious matter. She thought the SU accidentally saw up her skirt as SU was picking something off the floor. But as the investigation progressed and SU’s complaint moved from being one of inappropriate or disregard to a deliberately sexualising act, AB then began to believe that the SU may have looked up AB’s skirt as a re-enactment of childhood trauma. And what seemed to be other benign conduct in earlier sessions could be evidence of intent (frottaging and arousal) for which SU became self- conscious about and blamed AB for this. Again none of this was clear to the AB when it occurred. It was only with  hindsight that AB considered that what as going on was projection or transference.

t.        For instance at the end of an earlier counselling session SU had asked AB, a former nurse, to examine her breast for a lump. AB refused to, but while at that time AB thought that it was an innocent request arising from the fact that SU trusted AB and knew that AB had been a nurse, after the complaint was made and became more accusatory over time AB began to reconsider these behaviours as indicating a state of arousal having discussed and relived memories of abuse during the counselling session.

u.       SU’s request for AB to examine her breast, leaning down to pick something off the ground and from there looking up to see up AB’s skirt became more explicable as a pattern of trauma re-enactment of child sexual abuse for which SU found in AB a person to direct her self-disregard and discomfort at.

v.       AB ultimately was found by the Investigation Team to have acted unprofessionally for not writing down these opinions and earlier incidents in her contemporaneous case notes. However the reason that the AB did not,  was because AB did not consider them to be significant at the time.

w.     The AB accepts that she should have recorded more in the case notes, but as these incidents at the time seemed innocent or benign,  she thought nothing more of it, at the time.

x.       If the Investigation Team more familiar with child sex abuse therapy and how projection onto a counsellor and re-enactment of childhood trauma can often take place, the Team would have understood why behaviour that seemed benign at the time (and not particularly noteworthy and therefore not recorded in the case notes)  later can be seen for what it is, an attempt to create a situation where a counsellor (a person who is trustworthy – as a parent or guardian should be) can be blamed if a SU becomes aroused during a session remembering child hood events (when making disclosures about sexual abuse) and is later embarrassed by this arousal.

y.       However not only were none of these matters - which were raised by the AB to the Investigation - ever considered by the Investigation Team. These explanations were treated as not only implausible but further evidence that AB lacked sympathy towards SU, a vulnerable person.

z.        The Team having spent too long on the investigation process to date, then rushed its conclusion by erroneously finding that the AB had acted inappropriately (based on evidence that they should not have relied) and finding that she failed to accurately record what occurred in earlier sessions, when at the time these events occurred, they were too unremarkable to record.

aa.   AB accepts that she did not write up her case notes of 23 June 2016 at the time because she did not have access to the file immediately after the session (being in a different location) and she was going on leave the following day. Again this was criticised by the Team but it was only when SU started ringing AB when she was on leave and when AB rang her back on 4 July that AB realised that SU was really upset that AB wrote up the notes. These reflected the fact that AB followed protocol by discussing it with a colleague and then her line manager. This all happened before the complaint was received on 5 August 2016.

bb.   AB’s acceptance that her case notes could have been more detailed could not of itself justify a finding that the AB acted in an unprofessional and inappropriate manner in the period following the incident of 24 June 2016.

cc.    There was no basis for the Team to have reached this finding and it was this finding that has been most damaging for the AB professionally. It was on the basis of this finding that she was disciplined and recommended for sanction short of dismissal which was later commuted to a demotion to work as a clerical officer.

Conclusion

8.       AB contends that the investigation was significantly flawed in a multiplicity of ways. In the way the preliminary screening test was decided and who decided that; in allowing the investigation to last over 3 years; in conflating how she presented in 2018 to determine how she behaved towards SU on 4 and 5 July phone calls; assuring her that the phone recordings would not be listened to or considered by the Investigation but the Investigation members  then asking AB’s line manager her view as to how AB behaved during the calls; in criticising her for not taking contemporaneous notes of explanations that AB only came to realise months or years after the fact.

9.       She seeks a recommendation that the two adverse findings of Investigation be set aside and a recommendation that she be reinstated into her position as counsellor or in the alternative that she be compensated for all her loss of earnings arising from this defective investigation.

The Employer CD provided evidence from the HR manager and two of the Investigation Team.

The defence of CD to this dispute was as follows:

1.       A complaint of serious misconduct was received by CD from SU on 5 August 2016. It related to alleged inappropriate conduct of AB during a counselling session on 23 June 2016 and how AB dealt with her concerns in the aftermath of the session.

2.       AB’s line manager met with SU on 10 August 2016 and advised her that her complaint would be dealt with under the Policy.

3.       Under the terms of the Policy, a preliminary screening of the complaint was conducted and AB was advised. Preliminary Screening of any complaint is based on whether the alleged complaint could have taken place. If the allegations could have taken place, then the matter must proceed to an investigation.

4.       In accordance with the Policy, AB was advised that the test of preliminary screening had been passed and that the issue would become subject of a formal Investigation.

5.       On 16 December 2016 AB was invited to a meeting at which she was formally advised that an investigation would take place.

6.       On 11 January 2017 two investigators were proposed and agreed to by AB.

7.       On 16 January CD received another letter from SU which identified other matters that she wished to be considered by the Investigation Team. CD asked AB if she would consent to this.

8.       On 22 March AB wrote to CD advising that whether or not the investigation was expanded to include the new information received from SU was a matter for them to decide. CD decided not to expand the investigation and advised the parties accordingly.

9.       On 13 April a firm of solicitors came on record for AB

10.   On 28 April and 25 May 2017 CD asked AB to confirm that going forward they were to engage with the firm of solicitors and not her directly.

11.   On 8 June 2017 AB went on certified sick leave.

12.   On 29 June 2017 the solicitors firm wrote to CD advising that they were no longer on record for AB.

13.   On 13 July 2017 AB wrote to CD advising that another firm of solicitors would be representing her.

14.   The draft terms of reference of the Investigation were sent to AB’s new firm of solicitors on 29 August 2017.

15.   On 30 November after engagement with AB on the draft terms of reference, the final version was sent to AB’s solicitor on 30 November 2017

16.   On 23 October 2017 Occupational Health confirmed that despite AB being on sick leave she was fit to participate in the investigation.

17.   On 30 November AB’s solicitor asked that the investigation process be progressed.

18.   The investigation commenced in January 2018.

19.    The Investigation Team progressed to interview stage in February 2018. The investigation was complex and AB’s position changed and became more defensive over time.

20.   AB was provided with all relevant documentation and was given an opportunity to respond to the draft Investigation Report. The investigation was extensive. At this stage the attitude of AB was directed against how the investigation was being conducted. AB felt strongly that the process should not have even passed preliminary screening. She had become highly critical of SU and critical of the investigation process.

21.   The final Investigation report issue in February 2019.

22.   The Investigation upheld 2 findings against AB – that SU saw her underwear during the session on 23 June 2016 and that AB had acted unprofessionally in dealing with SU in the aftermath of the incident.

23.   In terms of delays within the investigation process this was contributed to, although not excused but a restructure of management at this time. These delays were unavoidable.

24.   Following the partial upholding of SU’s complaint AB was disciplined under CD’s well established disciplinary procedure.

25.   On 30 October 2020 it was decided that AB be sanctioned with action short of dismissal.

26.   AB appealed this and an appeal took place on 9 February 2021.

27.   On 23 February 2021 the sanction was reduced to a demotion to clerical officer grade at the highest scale.

28.   Evidence on behalf of CD contended that AB was afforded all fair procedures under the Policy.

29.   The Investigation Team was critical of  the fact that AB did not report allegations of sexually harmful behaviour in respect of SU until 18 months after the fact. The Team found that AB should have recorded this in her case notes and the fact that she did not either gave rise to an unavoidable conclusion that either it did not occur or if it occurred it was not recorded by her in her case notes. Therefore either way this was unprofessional conduct for a therapist.

30.   In terms of the finding that SB’s underwear was seen by SU as a matter of fact, this was upheld because SU’s assertion that this occurred on 23 June 2016 but also because this was admitted to by AB at interview.

31.   At all times CD acted within the parameters of the Policy and did not depart from same.

32.   Fair procedures were adhered to at all times.

33.   AB was afforded every opportunity to explain her side of what happened and she exercised her full rights of appeal.

34.   The allegations made by SU were very serious. She was a vulnerable patient. While no evidence of AB’s intent to expose SU to inappropriate conduct was proven, SU was allowed to see AB’s underwear and the way that AB thereafter dealt with SU’s direct complaint to AB was insufficiently apologetic or ameliorative. AB’s response blamed SU for what happened and given SU’s history and vulnerabilities, this defensive and unsympathetic approach was inappropriate.

35.   AB throughout the investigation process queried the process undertaken by the Investigation Team. She questioned the Team member’s qualification, she alleged that information was being kept from her; she alleged that she was not being provided with all the information that she should have been, she alleged bias, she was uncooperative and while she complained about delays she contributed to the delays herself.

36.   The issue of phone recordings was a vexed one in which CD received conflicting advice on whether or not the recordings which SU had provided to the Team could be used in the investigation. Ultimately the view was taken that they would not be listened to and they were not listened to and were set aside.

37.   CD made every effort it could to progress the investigation but an adversarial approach taken by AB and the changing of her representatives also contributed to the delays.

38.   The evidence of AB changed over the course of the investigation and every time she was interviewed this new explanation needed to be investigated. For this reason the Investigation Team were pulled away from the time period of between 23 June 2016 and the immediate aftermath. How AB conducted herself during the Investigation gave rise to new concerns about her professionalism and this ultimately impacted the findings that were made.

39.   The Policy that was adopted by CD is time-tested that has been in place for 15 years.

40.   The Investigative Team were clinical experts in their chosen fields and are highly experienced in conducting investigations.

41.   The position that AB held was a position of trust upon whom vulnerable clients depended.

42.   The conduct of AB amounted to a breach of trust and she could not return to counselling work

43.   All complaints and allegations raised by AB are entirely denied by CD.

Introduction

First,  I wish to thank AB and the legal representatives of CD for the time, hard work and perseverance that they put into the preparation for this Adjudication. It was the longest adjudication hearing that I have been involved in and the documentation was voluminous to manage. I am very grateful to the representatives for the assistance that they provided during the course of this hearing.  

The scope of this Adjudication

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

While this dispute criticises the Investigation process, the Disciplinary process and the Sanction of demotion, the evidence provided to me was confined to the Investigation and its findings only. The Adjudication lasted ten hearing days.

The Employer, CD, however accepts that the disciplinary action taken against AB was conducted on foot of the Investigation findings and that if the Investigation findings are to be set aside,  the disciplinary action must fall. CD also contends however that if even if either of the two Investigation findings are upheld, there was still a basis to discipline AB up to and including the sanction that was applied.

AS this is an industrial relations dispute based on the evidence heard over ten days I am obliged to consider only  (a) the investigation process and whether that was procedurally fair and (b) whether the two findings against AB that were upheld were fairly and properly reached.

In synopsis: SU’s version of what occurred on 23 June 2016

SU complained that at the end of a counselling session with AB on 23 June 2016, AB was writing at a desk and sat with her legs open which permitted SU to see up AB’s skirt. SU told AB that she could see AB’s underwear and was uncomfortable. AB disregarded this and did not alter her sitting position and instead told SU to take a good look.  SU felt exposed and re-traumatised by this. SU phoned AB and spoke to her on 4 July 2023 during which AB blamed SU for what had happened. She spoke to her again on 5 July during which AB apologised but again blamed SU for what happened. SU said that she felt sexualised against her will by AB’s conduct.

In synopsis: AB’s version of what occurred on 23 June 2016

AB said that the session prior to 23 June 2016 had been a difficult and emotional session for SU. SU had a background of child sexual abuse and had been receiving counselling for some time. The session of 23 June 2016 was not remarkable. What the Complainant alleged was not true. The long skirt that AB was wearing at the time was not amenable to what SU described happening. At the end of the session SU leaned down to pick something off the floor and from there looked up AB’s skirt. AB was writing at the time so was not looking at SU.  SU told her that she could see up AB’s skirt and AB looked up and was surprised because she didn’t see how that could have happened. AB brushed it off assuring SU not to worry because it was an innocent accident (she meant by SU.) It was only the following week when SU rang AB - while she was on leave – and they eventually they spoke by phone on 4 July and then again on 5 July that AB realised that SU was accusing AB of inappropriate conduct, even though it was still unclear to AB what she was being accused of. It was SU who had moved to the ground and looked up AB’s skirt. AB hadn’t moved. AB completely denied that inappropriate conduct occurred and telephoned her colleague straight away to discuss SU’s phone call.  She also spoke to her line manager who advised her what to do. They agreed that it might be a trauma re-enactment from her childhood experience (shame) and that SU was projecting trauma from her childhood sexual abuse onto AB. 

Investigation Team Findings    

The findings against the AB, which were upheld by the Investigation Team were twofold:

Finding (Allegation 1 (i) That AB’s underwear was seen by the AB during the session of 23 June 2016

and

Finding (Allegation 3 (i) That AB behaved in an unprofessional and inappropriate manner in the period following the incident of 23 June 2016.

Overview of Adjudicator’s finding

Having heard and considered the evidence of the AB and members of the Investigation team over the course of a 10 day adjudication, I am satisfied that the investigation process as conducted by the Employer, CD, in this dispute was seriously flawed.

I have no hesitation in recommending that the Investigation findings, per Allegations 1 (i) and Allegations 3 (i), be set aside.

Defects in the Investigation

It seems to me that at the very commencement of this investigation, errors were made.

No one in CD appeared to grasp the investigation that was needed and the limitations around what needed to be investigated.  I am not clear if this problem lay with the decisions around the commission of the investigation or with the Investigation Team and based on the evidence it seems most likely that it was a combination of the two.

However, wherever that blame for this lies, the Employer, CD is liable for the flaws that were inherent in the process from the beginning. I set out the defects in the Investigation Process in chronological order below:

1.       The Terms of Reference

The Terms of Reference of the Investigation were not specified. They were stated as being to investigate the complaint made by SU against AB. These terms were vague and unsatisfactory given that neither AB or SU were allowed any clarity as to what precise issues were being investigated.

The Investigation Team (later) refined the terms of reference into a series of 3 questions however this specificity should have been provided to both AB and SU before they engaged with the process.

However thereafter the Investigation Team fell into error in that the findings of that investigation went further than SU’s complaint and the three questions that the Team had refined from the Terms of Reference. The Investigation appeared to take on a rolling or expanding jurisdiction as time went on.

For example, in respect of Question 3 – Did AB behave in an unprofessional and inappropriate manner in the period following the incident on 23 June 2016 – the Investigation Team considered evidence of unprofessionalism by AB that were not and could not have been ever in the mind of the parties when SU made her complaint.

The finding of unprofessional misconduct (eg failure to record evidence of sexually harmful behaviour of SU in the case notes) were part of an expanding remit of observation by the Investigation Team that fell outside SU’s complaint and were not part of the agreed Terms of Reference.

In June 2016 AB had no belief that SU was engaging in sexually harmful behaviour. That belief developed during the Investigation process. To rely on the failure by AB to record a belief in her case notes at the time when AB did not have any such belief is illogical and erroneous. I consider that if the Terms of Reference had been specific, and if the investigation had limited itself to the 3 refined questions alone and considered only what was known or could have been known by the parties at the material time (ie on 23 June 2016 and the immediate aftermath) that would have been the appropriate way to manage the investigation.  But that did not happen.

I am satisfied that the failure to have specific Terms of Reference for the Investigation led to multiple errors in how the Investigation proceeded thereafter.

2.       The Preliminary Screening Decision

Given that AB discussed the incident with her line manager on or about 5 July 2016 and again on 20 July 2016 when the line manager directed AB on how to deal with SU thereafter it is my view that AB’s line manager was not an appropriate person to decide the preliminary screening test, because she was involved in SU’s treatment before any complaint from SU had been received.

Given that AB discussed the case with her line manager on 5 July, albeit after the last phone conversation between AB and SU took place, because AB received advice from her line manager on how to deal with SU thereafter, in my mind it was not appropriate that this line manager was the person who made the preliminary screening decision. That decision should have been taken by a person unconnected to the line management of AB, a person who had no role in how SU was treated from a service point of view. 

However, a preliminary screening test is undoubtedly a low bar to reach.

The applicable test is could the allegations have taken place. It is a test based on possibility not probability and therefore while I consider that AB’s line manager was the incorrect and inappropriate person to decide the preliminary screening test, it is difficult to see - given that there were no witnesses and that it was the word of SU against the word of AB - how the preliminary test –of could the allegation have taken place – would have not been met on these facts.

3.       The Delays

There was initially a very slow start to the investigation. The complaint was made in August 2016 and the Investigation did not commenced until January 2018. There was initially a protracted period attempting to agree the Terms of Reference. I accept that AB was the author of some of the delays because for a period she was on sick leave and management wrongly or otherwise decided that the investigation was not to be progressed during that time but within a short time she attended Occupational Health in order to allow the investigation to progress despite her remaining on sick leave.  I accept that AB’s change of representatives; a trade union representative, to a solicitor and to another solicitor also impacted somewhat on the progress of the investigation and the dispute that arose over the provision of documentation before the investigation started.

However two periods of significant delay lay at the hands of the Employer.  The first relates to the agreeing the terms of reference and then commencing the investigation from 2016 until early 2018, which was inexplicable and inexcusable.   The second was after the conclusion of investigation in 2018, when the draft Investigation report was not issued until May 2019, which again was excessive.

Employers sometimes overlook with workplace investigations that while time passes quickly when work is continues as normal for management while at the same time they are trying to arrange and conduct an investigation, for the employee whose reputation is being called into question, each morning wakes to a sense of dread of the possibility that they might be found guilty of wrong doing which has the potential to ruin one’s professional reputation. When this dread is allowed to accumulate over three years, it often came become too heavy burden to carry.

I accept that there was a change in personnel engaged in the investigation but I do not accept that this justifies why the final investigation report took 3 years to issue from the date of the alleged offence.

I find that the delays in this investigation was inexcusable and egregious.

4.       The Investigation

The questions that the Investigation Team considered were (in synopsis)  

-  What happened during the session on 23 June 2016 and

 - Did AB deal with SU’s experience of the alleged incident in an appropriate and professional manner in the immediate aftermath of the alleged incident?

What was known at the time?

A fundamental assumption in the Investigation should have been what was or could have been known by AB within the material time (on 23 June 2016 and in the immediate aftermath of that.)

When SU made it clear to AB on their phone call of 4 July that she was unhappy with what occurred at the session on 23 June 2016 AB was taken aback by that because in her view, nothing noteworthy had happened. Thereafter she tried to make sense of it. She phoned to a colleague to discuss it. She talked to her line manager. No one disputes this. Up until this time the therapy with SU was going well. There was a trust relationship and progress was being made. There was no reason for AB to record a belief in her case notes that transference might be occurring or that SU was engaged in sexually harmful behaviour.

It was only as the investigation went on, over the years that it took, that AB developed this explanation about what might have motivated SU and AB started to re-evaluate earlier interactions with SU as frottaging and arousal (ie sexually harmful conduct)  but until the complaint was made (by phone to her on 4 and 5 July 2016 and by written complaint on 5 August 2016)  there was no evidence of any sexually harmful behaviour for that to be recorded in the notes. AB accepts that the case notes could have recorded greater detail in a general sense but there was nothing in AB’s mind at the material time that SU was engaging in sexually harmful behaviour.

Therefore it was wrong of the Investigation Team to criticise AB for not recording this in the notes at the time.

What is more, in the immediate aftermath AB’s case notes did record the possibility of “re-enactment of childhood experience” and “projection” onto AB. Which was the start of AB developing her later explanation that the actions of SU during that session and indeed during earlier sessions were not benign. But these, even though they recorded what the AB thought at the time, were not given sufficient consideration by the Investigative Team.

Investigation findings superceded SU’s complaint and therefore the Terms of Reference

The terms of reference related to the complaint SU made but the Investigation Team did not confine themselves to that. Instead they expanded their remit to find that because she did not record adequately (which was not something that the Complainant had raised in her complaint nor was it a feature of the Terms of Reference or the 3 questions) that AB was guilty of unprofessional conduct.

The Investigation Team concluded that AB had engaged in unprofessional conduct  -“for either observing sexually harmful behaviour and not recording it or by retrospectively highlighting alleged sexually harmful behaviour” (page 21 of the Investigation Report) as if there is something wrong with not having an explanation at the time but developing one later and giving that explanation to the investigation. This was not an inconsistency. This was a development of her views with hindsight on what she thought was going on with SU. Had the investigation been conducted closer to the events, this might not have happened.

I reiterate, not recording sexually harmful behaviour  in the case notes was not part of the complaint made by SU  and therefore should not have been a part of the Terms of Reference of the Investigation and therefore not part of the findings against AB.  The Investigation Team went outside of its jurisdiction in this regard.

If the Investigation had instead had been confined [(a) what facts were alleged? (b) what did both parties say happened? (c) what corroboration was available at the material time for each side’s version?and remained confined to this,  the whole process would have been short, the material to be considered would have been limited and the risk of an unhinged investigation would have been minimised.   But that did not happen.

The Employer is the custodian of an investigation under this Policy. The Employer has a careful duty to investigate fully a complaint that has been made. The Employer also has a duty to protect the rights of an employee who is subject of a complaint. This balancing act is possible when the investigation is kept tight and does not stray from the terms of reference as agreed. Unfortunately that did not happen in this case.

Conflation of time periods when determining demeanour

For the Investigation Team to find for example - as they did – that the AB’s showed a defensive demeanour and lack of sympathy towards SU when the Investigation Team interviewed her in 2018 as constituting grounds to find that in June/July 2016, she was not sufficiently concerned about SU’s well-being, is not even logical. How AB presented to the Investigation Team in 2018 was entirely irrelevant to how she behaved towards SU in June and early July 2016. Two years under suspicion has an impact.  This conflation of time periods to consider attitude of AB to SU was a serious error of judgment by experienced Investigators.

Phone Recording Evidence

And now, the phone recordings. The fact that AB’s line manager was asked (in an interview on 23 April 2018 and on 3 May 2018) for her opinion of the phone recordings (between AB and SU) and if, in her opinion, AB had upheld good practice during these phone conversations, was an entirely inappropriate question for the Team to ask – given that AB had been assured by them that these recordings would not be relied upon and for this reason would not be provided to her. This is such a serious and obvious breach of fair procedures. The answers of the AB’s line manager to these questions are then cited by the Investigation Team to explain their finding that AB dealt with SU in an inappropriate and unprofessional way in June/July 2016.

Was the sight of the underwear admitted to by AB?

I am satisfied that there was insufficient evidence available for the Investigation Team to make a finding that AB’s underpants were seen by SU.

I am satisfied that this finding was made because the Team misconstrued AB’s apology to SU during the phone call on 5 July as being an admission of what SU alleged she saw was true and I am satisfied that the Team misconstrued AB’s case notes as recording an acknowledgment that AB’s pants were seen by SU as opposed to recording that SU said that she saw AB’s underpants.

I am satisfied that the Team again misconstrued AB’s interview as admitting that her pants were seen accidentally by SU when that was not what AB said at the interview.

AB said that when she spoke to SU she reassured her by saying that it was accidental (by which she meant SU’s accident – not AB’s accident). She said this to reassure SU that if SU had accidentally seen up her skirt, it was not a problem for AB. At that stage AB had no idea that SU would later suggest that AB deliberately allowed SU to see her underpants.

Adjudication Findings

Finding 1 (a)

For reasons set out above, I am not satisfied that the Team had an evidential basis to determine that AB’s pants were seen by SU, as a matter of fact.    I recommend that this finding be set aside.

Finding 3.

I am satisfied that the basis upon which the Investigation Team found that AB behaved in an unprofessional and inappropriate manner in the period following the alleged incident on 23 June 2016 was incorrectly and improperly reached because the investigation breached a number of what are accepted fair procedures. 

Conclusions

It  is a fundamental problem that the 3rd question that the Investigation Team sought to address in the Investigation Report (unprofessional behaviour by AB) was determined by considering three additional sub-criteria; record keeping/ management of Complainant’s response to the incident and AB’s concerns about SU’s sexually harmful behaviour and how AB managed this – even though these sub criteria did not relate to SU’s complaint, but rather were developed as an expansion to the Terms of Reference as the investigation progressed. These additional criteria were add-ons to what was agreed would be investigated.  

The Investigation Team finding that AB’s case notes should have recorded her belief at the time that SU was engaging in sexually harmful behaviour disregards the fact that AB did not believe this to be the case this at the material time ie in the immediate aftermath of the incident.

The Team also disregarded the fact that AB did record in her case notes her belief and discussions with her colleague and line manager after 4/5 July 2023 - that SU was likely projecting and re-enacting childhood trauma (because that is what AB thought at the time) and that was recorded in the notes.

I am very concerned by the fact that AB’s line manager’s opinion evidence on the phone recordings was relied upon in a hearsay manner by the Team to support a finding of unprofessional conduct when AB was expressly assured by the Team that the phone recordings would play no part in the findings and she was not provided with the recordings despite multiple requests for them.

I am seriously concerned by the fact that how AB presented at an investigation interview in 2018 played any part whatsoever in the Team’s finding that AB was unsympathetic or defensive towards SU in the period following 23 June 2016.

As the Investigation Team erred in a number of respects in reaching this finding, I consider this finding to be unreliable and I recommend that this finding be set aside.

As I recommend that neither of the two findings by the Investigation Team should have been upheld, it follows that any disciplinary action that was taken relying on the Investigation findings should also fall.  

I have little doubt that the whole investigation process caused great damage to the Complainant’s professional reputation and personal life. It is my view that the errors in the investigation process were entirely avoidable and that lessons should be learned by the Employer from this.

I recommend that all the staff who are still employees of the CD who were involved in this investigation should undergo professional training in how a fair investigation is conducted.

Remedy

AB lost her position, her career and her professional reputation as a result of this flawed investigation. 

The remedy that is now sought by AB is a recommendation that she be reinstated back into her former position as a Counsellor/ Therapist. I can understand why she would want this but am disinclined to recommend this on the basis that relations between the parties have broken down to an extent that I do not expect that a working relationship would now be possible.

However,  by way of alternative, I consider that the loss of earnings that AB suffered as a result of the demotion which took effect on from 26 April 2021 following the investigation (the findings of which I have recommended be now set aside) should now be paid to AB.

CD disputes the loss of earnings in that AB claims that it runs to date. CD claims that AB did not file any medical certificates of the sick leave that she was on from June 2022 until October 2023 (the date of the last Adjudication hearing day). However CD does accept that certificates were sent by AB, albeit to the incorrect CHO manager.  Arising from her demotion AB’s CHO Area was changed but because AB did not accept this – pending the WRC adjudication – she kept sending the certificates to her former line manager, which CD accepts were received. For this reason, I do not accept that CD management were unaware of the certificates that were sent to it by AB, albeit to her former manager and I do not accept that they were unaware that she remained on sick leave.

I have calculated AB’s loss of earnings based on what she would have earned from 26 April 2021 if she had remained working as a Counsellor minus her sick pay and the salary that she received from that date as a clerical officer. I find that her loss of earnings until 12.6.2022 when CD contends that she went on sick leave to be €68,901.

From 12 June 2022 until October 2023 AB suffered an additional loss for 501 days at a daily rate of €217 per day. This amounts to an additional €108 717.00. I accept that the sick pay rate would not have continued at this rate however I am assessing this compensation based not on an entitlement to sick pay but rather based on the earnings that AB would have received if she had continued in her post as Counsellor and was not subjected to a demotion.

The total sum that I recommend is paid to AB is €177 618.00

I recommend this high level of award not only to compensate AB for what occurred but also to prevent this from happening again to another employee.  

Industrial Relations - demotion – fair procedures in an investigation