Care worker who asked young female colleague about 'one-night stands' and 'date rape' loses dismissal appeal

A care organisation sacked a worker after he asked a 19-year old female colleague had she ever been tempted to have a one-night stand and questioned her about ‘date rape’.

In the case, the male care worker was dismissed for gross misconduct in May of this year after the voluntary care organisation found that the 19-year-old agency worker's "dignity at work" was violated as a result of sexual harassment which arose from the conversation of a sexual nature.

The organisation - which provides services to people with intellectual disabilities in Dublin - found that the conversation “had the effect of creating an intimidating and offensive work environment for the woman”.

The employer is a ‘Section 38’ organisation that provides health or personal social services on behalf of the HSE and it employs around 1,000 staff to provide services to around 1,000 service users.

The complaint of sexual harassment by the 19-year-old woman that culminated in the man’s dismissal was made on September 2, 2018, the complaint came two months after the man had been served with a final written warning concerning a separate incident involving the emotional abuse of a patient.

In her complaint, the woman said that her male colleague raised a number of topics while working alone with residents.

She stated that he asked if her friends had one-night stands; had she ever been tempted to have a one-night stand and how long would it take her to do something with a male.

She also said that the man told her that there is a sex site online for women when their husbands go away that they have sex with these people online and that she should look it up.

The woman said that her colleague asked her do men come up to her on nights out and questioned her about ‘date rape’.

As a result of the allegations, the male worker was requested to remain off duty pending a full investigation into the matter.

The man - employed as a care worker since 2003 - was sacked for gross misconduct in May of this year.

The man sued for unfair dismissal at the Workplace Relations Commission (WRC).

However, WRC Adjudication Officer, Jim Dolan has dismissed the worker’s claim.

Mr Dolan said: “On the balance of probabilities, I believe the actions taken by the Respondent are the actions any reasonable employer would have taken, it is on this basis that I find that the Complaint as presented is not well founded and therefore fails.”

Mr Dolan said that the behaviour of the male care worker did amount to sexual harassment and this fact is not in dispute.

The decision to dismiss came after he had been previously been served with a final written warning on July 4, 2018, that was to remain on his file for nine months.

This arose after the employer found the worker to have engaged in behaviour and language with a resident that was both emotional/psychological and institutional abuse.

In the incident, it is alleged that the man told a service user that he was in no mood to listen to him today, to hurry up he was too slow and it was coming up to his lunch time.

Mr Dolan said that the events leading to the dismissal are not in dispute and the summary provided by both the care worker and the care organisation are very similar.

It was argued on the worker’s behalf that the complaint regarding sexual harassment does not merit the sanction of dismissal and that it was a disproportionate sanction.