A Rights Commissioner's finding that a man guilty of sexual harassment was unfairly dismissed was appealed to the EAT by the employee on the grounds that the preferred remedy was reinstatement rather than the nominal compensation they were awarded.
In this case the Tribunal found that the employee had actually been fairly dimissed and so upset the Rights Commissioner's original unfair dismissal decision.
In the appeal of Duffy against the recommendation of the Rights Commissioner in the case of The Zoological Society of Ireland UD560/2011, the employee was employed from 2006 to 2010 until he was dismissed for Gross Misconduct. it was alleged that he had physically and sexually assaulted a female colleague three times whilst on a work organised night out. The employee was on medication for depression and had also consumed a large amount of alcohol. The female colleague encountered the employee who was bloodied and in some difficulty with the police and out of a sense of responsibility she agreed to take him in her taxi rather than in a squad car.
When back at the hotel the employee and female colleague mistakenly took the service lift and ended up in the wrong part of the hotel, and then entered a stairwell but ended up trapped there for up to an hour. the three assaults took place over the course of the night and when back at work the female employee lodged a formal grievance as she felt she could no longer work with this employee. Although witnesses could not verify the assaults took place, they confirmed the employee was very drunk and on this basis the employer concluded they had no reason to doubt the validity of the female employee's account and had no option but to dismiss.
The employee felt that the investigation process was flawed and so was the disciplinary appeals process and as such felt it was unreasonable to dismiss.
In their very detailed determination the Tribunal noted that although this incident occurred off site and outside of work hours, they had no issue with the employer taking this matter into their hands, as the employer is bound by a duty of care to conduct an investigation. Even though the alleged assault did not take place in the workplace it could only be damaging to the employment relationship, and there was still a correlation to the workplace as they had been on a work night out.
It was interesting to note that the Tribunal also stated that perhaps the investigation process was not as thorough as it may have been, however "...this was not a criminal trial (albeit the sanctions are onerous) and the employer need only be satisfied that the behaviour warranted gross misconduct."
The Tribunal went on to state that "the issue of sexual harassment, once raised, cannot be brushed under the carpet. it must be dealt with swiftly and decisively. if the acts complained of are of such a serious nature as herein it would be unreasonable for the employer to expect Ms. X to continue work comfortably and without fear in the workplace. This is at the very top end of gross misconduct and the respondent had no choice but to dismiss the claimant."
Employers should be conscious that if an employee brings such a claim to them, they have a duty of care to investigate this and ensure that the employees work in a safe environment, free of the fear of harassment.
