In Nkemka Patrick Okachi v Sodexo Ireland Limited (ADJ-00045306), the WRC ordered the reinstatement of the Complainant after determining that he had been unfairly dismissed.

Whilst this case is noteworthy in that the remedy of reinstatement was used, there were also some useful learning points from the processes carried out by the Respondent organisation, in how it dealt with a sexual harassment claim, and the absolute necessity for fair and objective processes from initial supsension through to dismissal and appeal.

The Complainant has been employed for almost 9 years before his dismissal from his position as a Cleaning Supervisor, after a female colleague, who was not an employee of the Respondent, but an employee of the Respondent’s client made a complaint.

The Complainant denied there was anything of a sexual nature involved and said that he complimented her, and she gave him a hug at the end of the conversation, and when he next attended work, his manager told him that there had been a complaint made against him, and he was suspended from work and was sent a disciplinary invite letter.

The Complainant was refused access to CCTV footage which he said would confirm the nature of the interaction.

The Respondent provided evidence of the investigation, disciplinary and appeals processes it followed, but the Adjudicating Officer found that the Respondent had not followed fair procedures or its own policies in handling the complaint of sexual harassment. These included:

• • The decision to suspend was knee jerk and not necessary, as there were other work locations available and there was no request by the female colleague not to work with the Complainant. There was also a timing issue around the decision to suspend, as it appears to have been taken before the written details of the complaint were ever received by the Respondent from its client.  

• • The Adjudicator did not accept the Respondent’s submission that its Dignity at Work policy did not apply when the complaint came from a client rather than an employee.

• • The initial complaint came in the form of a list of points “HR agreed” with the female colleague. This email did not name the Complainant, nor did it make any complaint of physical contact. The Adjudicator remarked that it was “extraordinary” how matters unfolded for the Complainant given that the Respondent had been advised the female colleague “did not want to make a big deal” of the interaction.

• • Despite the written complaint  not mentioning physical contact, and the Complainant consistently denying it, each stage of the process relied on the inappropriateness of this conduct, which ultimately led to the Complainant’s dismissal.

• • In addition, the Adjudicator noted that an email from a receptionist also made no reference to physical contact between the parties and a personal trainer identified by the receptionist as having witnessed the incident was not interviewed.

• • The Complainant consistently requested access to the CCTV footage, which was denied, but yet appeared to have been relied on by the Respondent.

• • No cross examination of witnesses was allowed despite the Respondent’s own Disciplinary Procedure providing “Employees may question witnesses (via the meeting/hearing manager where appropriate)”.

The Adjudicator therefore determined that the Respondent’s handling of the case fell significantly short of the principles of natural justice and commented that:

“While the standard for workplace investigation is not perfection, it does go beyond merely populating template documents without any objective independent thought and consideration for the Complainant’s version of events. This is even more significant when it comes to complaints, if founded, can have a lasting impact on a party’s reputation both in the workplace and beyond.”

The Adjudicator further noted the sanction of dismissal was entirely disproportionate in the circumstances and determined that reinstatement was appropriate, as the Complainant has not secured permanent employment, and there was potential for work for him at other sites in the Respondent’s business, with it again noted that he did not work directly with the individual who made the complaint.

Takeaway for Employers:

• • Ensure that complaints are reviewed under relevant policy

• • Consider the necessity for suspension and options available to redeploy to other work locations if available.

• • Ensure complaint is clear and understood at outset and not framed by HR

• • Interview all relevant witnesses

• • Make available all evidence relied on including CCTV footage

• • Consider the whole circumstances fully and proportionality of response and sanction, with dismissal being a last resort.