Employee 'not unfairly dismissed' over alleged sex attack on colleague at Christmas party

Throughout the company investigation, the male worker argued that the alleged incident of gross misconduct did not take place during work time or on work premises
Employee 'not unfairly dismissed' over alleged sex attack on colleague at Christmas party

The female complainant alleged that her male colleague sexually assaulted her in her hotel bedroom after a staff Christmas party on December 1, 2018. File photo File photo: iStock

The Labour Court has ruled that a worker for a beverage company who is alleged to have sexually assaulted a female colleague at a staff Christmas Party was not unfairly dismissed.

In its ruling, chairman of the Labour Court, Kevin Foley said the decision to dismiss the worker in response to the “uncontested” allegation that he sexually assaulted a colleague falls within the range of responses which might be expected of a reasonable employer.

The female complainant alleged that her male colleague sexually assaulted her in her hotel bedroom after a staff Christmas party on December 1, 2018.

The woman complained to her bosses on February 15, 2019, concerning the alleged sexual assault.

In her complaint, she said she was afraid that she would have to work with her male colleague or sit beside him in the restaurant at work.

She said she was “bringing this to your attention now as I cannot cope with this on my own at work anymore”.

The company's disciplinary procedure

The male worker was suspended three days later pending an investigation and the investigation made a single finding that on the balance of probability, the male worker sexually assaulted the woman after the firm’s Christmas party.

The man was dismissed on April 24, 2019, and after two internal appeals the dismissal was finalised on September 24, 2019.

Throughout an investigation, disciplinary hearing, appeal hearing and second appeal hearing, the worker confirmed that he continued to be in receipt of legal advice and that he would make no comment in relation to the sexual assault complaint made against him.

The man did, on more than one occasion, state that he had done nothing wrong but, on each occasion, declined to elaborate on the meaning of that assertion.

The beverage firm engaged an independent barrister to conduct an investigation into the sex assault allegation.

Throughout that investigation the worker refused to comment on any matter associated with the date of the alleged sexual assault or on any aspect of the complaint against him.

The worker argued that the alleged incident of gross misconduct did not take place during work time or on work premises.

He said it took place at a private venue, in a private room after the work party took place.

The worker went on to challenge the investigator’s failure to assess or test the credibility of the complainant.

Labour Court ruling

However, the Labour Court's Kevin Foley concluded the Christmas Party was sufficiently connected with work that it occurred in the course of employment where the company's disciplinary policy could be applied.

Mr Foley said the company organised the party and paid for it and the woman took a discounted hotel room rate that had been negotiated by the company.

Mr Foley said it is the court’s judgment that the alleged sexual assault had the potential to impact on employee relations in the workplace, to cause reputational damage to the company and to risk bringing the company’s name into ill repute and to cause the employer to genuinely lose trust and confidence in the male worker.

He found that the independent investigator found the complainant to be a truthful, credible witness and also asserted that her evidence had been corroborated in a number of ways.

Mr Foley stated that where there was no contest over the facts of the incident, the investigator was not obliged to challenge the female complainant to the degree which might be necessary where a dispute as to the facts of the matter existed.

The decision of the Labour Court upholds an earlier ruling by the Workplace Relations Commission (WRC) which found that the man was not unfairly dismissed. The matter came before the Labour Court after the man appealed the WRC ruling.

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