The complainant, who held the role of assistant manager and was considered “number two” to the CEO, admitted to sending sexually explicit or offensive messages from two colleagues’ mobile phones.

In September 2022, he accessed a colleague’s social media account while she was on holiday and posted offensive material. On 30 January 2024, he sent a sexually explicit WhatsApp message to another colleague’s husband from her phone.

Following complaints from both women, the company engaged an independent HR consultancy to conduct an investigation. The investigator concluded that the complainant’s behaviour amounted to sexual harassment of “high severity”.

Having considered the independent report, a disciplinary panel decided to dismiss the complainant in March 2024 and rejected a subsequent appeal.

In a newly-published decision, the WRC agreed the complainant made “unwanted sexual remarks which were offensive and degrading and which had no regard for dignity of his colleagues” and met the definition of sexual harassment in the company’s policy.

However, adjudication officer Catherine Byrne found that the “categorisation of what happened as ‘high severity of sexual harassment’ was too extreme”.

Under the terms of reference, it was “not open to the investigator to reach a conclusion regarding the scale of the offence or the severity of the sexual harassment”, she noted.

In cross-examination, the respondent company’s said it was “not up to me to critique the report”. However, the adjudication officer said: “I fundamentally disagree with this.”

“The role of the disciplinary panel was to examine the facts and to reach their own conclusions about the seriousness of the conduct and, based on those conclusions, to decide if the complainant should be dismissed,” she said.

“It is my view that, by relying on the opinion of the independent investigator, they failed in their duty to properly consider the complainant’s defence.”

The adjudication officer also found fault with the company’s handling of the 2022 incident.

“Having taken no action in September 2022, I am concerned that the disciplinary panel decided that ‘the fact that there’s a couple of incidents’ was material to their decision to dismiss the complainant,” she said.

“I find that the retrieval of the September 2022 incident to bolster a case for the dismissal of the complainant was unfair.”

The WRC further held that the complainant had been denied a right of appeal against the findings of the independent investigation, despite the employer’s policy providing for this.

“Considering the findings in the report, which were catastrophic for the complainant, it is my view that the failure to inform him about his right to appeal was a significant breach of procedural fairness,” she said.

The disciplinary hearing was also rushed and no consideration was given to the possibility of a sanction short of dismissal, or to the complainant’s suggestion that he be demoted, the adjudication officer found.

Finding that the dismissal was procedurally unfair, the adjudication officer ordered the respondent to pay €22,500, equivalent to 30 per cent of the complainant’s estimated losses in the two years following his dismissal.

“Having concluded that the dismissal of the complainant was unfair, I find that he contributed significantly to the respondent’s decision to dismiss him,” she said.

The parties were not named in the WRC decision due to “the risk that, given the facts that led to the dismissal of the complainant, naming the parties could lead to the identification of his former colleagues and this, in turn, could result in collateral damage not only to the people concerned but to the organisation itself”.

The complainant was represented by Michael Kinsley BL, instructed by Daniel O’Connell of Keans Solicitors. The respondent was represented by Lauren Tennyson BL, instructed by Sarah Conroy of Beale & Co.