About this case:

• Citation:
  UDD1967
• Judgment:
  External link
• Court:
  Labour Court

Finding serious procedural failings in the disciplinary process which led to the man’s dismissal, Chairman Kevin Foley also said he could find no basis for understanding how an incident in which the man had briefly touched a co-worker’s back could be concluded as sexual in nature.

Background

In February 2001, the respondent, JD, commenced employment as a butcher with the appellant, Murphy’s SuperValu Rosslare Harbour.

In October 2017, a student who was on work experience in the supermarket made a complaint that JD touched her on her lower back. Statements were also provided by a witness. JD was immediately suspended and the supermarket held an investigation into allegations of serious misconduct and sexual harassment – specifically that JD had touched her inappropriately.

In November 2017, after the investigation was carried out, a disciplinary meeting was held with JD. Thereafter, JD was informed that he was dismissed by letter stating that his actions constituted gross misconduct. JD appealed though his solicitor; however, his dismissal was upheld by an independent third party.

Workplace Relations Commission

In January 2018, JD made a complaint seeking adjudication by the Workplace Relations Commission under section 8 of the Unfair Dismissals Act 1977. JD accepted that he touched the girl on her bare back, but that it was intended as a friendly act because his hands were cold from working at the butcher’s counter – and that his actions contained no sexual intent. JD said that when he was made aware that the girl was upset, he immediately offered to apologise to her.

In November 2018, Adjudication Officer Pat Brady decided that JD had been unfairly dismissed and awarded €24,000 in compensation (Decision No. ADJ-00012695).

In view of the CCTV evidence provided to the Commission, Adjudication Officer Brady said the footage cast “very serious doubt” on the girl’s original statement that she was “rubbed” by JD – and that there was no evidence of “anything more than a brief touch”, consistent with JD’s evidence. Adjudication Officer Brady also found serious failings in the Supermarket’s investigation and disciplinary processes.

Adjudication Officer Brady said it was easy to understand the supermarket’s concerns about what happened and the business implications of “perhaps inaccurate or exaggerated” versions of what happened beginning to circulate in the local community. However, he said “such sensitivities must be applied proportionately and not in such a way as they diminish the constitutional rights of a person charged with a disciplinary offence to fair procedure”.

Stating that the supermarket’s actions fell outside the parameters of what might be expected of a ‘reasonable employer’”, Adjudication Officer Brady said that because of the flaws in the process “and on any measured and detached view of the facts of the matter”, the dismissal was unfair.  

Labour Court

In December 2018, the supermarket appealed the Recommendation of Adjudication Officer Brady to the Labour Court.

Noting that the supermarket was a reasonably small enterprise and that this could limit its capacity to carry out investigation and disciplinary procedures, Labour Court chairman Kevin Foley said that this did not relieve the supermarket of the burden of ensuring that the procedures “employed to investigate and consider disciplinary sanctions are as fair as possible and in conformity with the requirements of natural justice”.

Chairman Foley said that the investigation “did not conclude with the issue of findings or any communication with [JD]” – and that instead, this concluded with the managers who carried out the investigation deciding that sexual harassment had occurred. Further, during the disciplinary process, no charge of sexual harassment was put to JD.

Again, at the appeal stage, the independent third party did not conclude in any of his 15 findings that sexual harassment had taken place – yet he found that the dismissal was fair.

Considering the evidence and submissions regarding the investigation, disciplinary, and appeal procedures, Chairman Foley said there were significant issues as regards fairness. He said it was clear that the procedures offered no transparency to JD regarding “the roles of various actors in relation to the investigation of the matter and certainly no transparency as regards the identity of the ultimate decision makers in terms of sanction to be applied”.

Further, it was clear that JD was never provided with the opportunity to address those persons who would ultimately participate in and contribute to the decision to dismiss him – nor was he ever “on notice in the disciplinary phase that the investigation was focussed on a proposition that he was guilty of sexual harassment on the basis that this had been the unannounced conclusion of the investigation phase”. Chairman Foley said during the process, JD was never provided with “the opportunity to respond to the charge of sexual harassment or to address questions of sexual motivation or pre-planning”.

Having reviewed the CCTV footage of the incident, Chairman Foley said he could find “no basis for understanding how the event could have been concluded to be sexual in nature”, and “much less how [a manager involved in the disciplinary process] could determine, primarily from the CCTV footage as he said in evidence, that [JD] sought sexual gratification in his interaction with the student”. Chairman Foley said these conclusions “would not… fall within a range of conclusions which could reasonably be drawn from the available evidence”.

Finding that JD was deprived of his right to fairness of procedure and natural justice, Chairman Foley agreed with the WRC decision that the JD’s dismissal was unfair.

Awarding €35,000 in compensation, Chairman Foley said the decision to dismiss JD was “disproportionate and outside of the range of responses which the Court would expect from a reasonable employer”.