A professional in the child and family services sector has won €32,000 for being sacked after gardaí charged him in connection with allegations of abuse, which he is denying in ongoing criminal proceedings.
The respondent organisation maintained the man had “misled or failed to disclose” the nature of the alleged offences by advising they were linked to “one or two relatively minor issues” referred to State agency Tusla two years earlier. He claimed they had been dismissed as unfounded.
The organisation determined the man was guilty of serious misconduct and sacked him, a decision the man’s barrister said ignored his client’s constitutional right to the presumption of innocence.
The Workplace Relations Commission (WRC) issued its findings in the case with all names and identifying information redacted on the grounds that the criminal charges are still before the courts.
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Giving evidence on his Unfair Dismissals Act complaint at the WRC, the worker said that when garda detectives came to his home on August 4th, 2019 to tell him there had been a “historical complaint of inappropriate behaviour” against him, he informed his line manager the next day.
He said his understanding was that the claims were “serious in nature”. He said the reference to “inappropriate behaviour” in the context of the complaint meant “violation of another person”.
The complainant said that when he spoke to his line manager, Ms AB, he was “clear about the nature of the inappropriate behaviour alleged” against him.
After the worker told the organisation about the claims against him, it referred a retrospective abuse report to the Child and Family Agency, Tusla in line with the Children First legislation and placed him on leave before he was able to return to a role in head office.
After Tusla decided the historical claim was “unfounded” in December 2019, the worker was allowed to get back to his normal job as a centre manager. He stepped into a senior manager vacancy in January 2020 and was formally offered that role in September 2020, the tribunal heard.
There was no further contact from the gardaí, the complainant told the tribunal.
However, the non-profit’s HR manager said in evidence that when the complainant’s garda vetting fell due for renewal in May 2021, it “wasn’t a quick turnaround”.
The complainant told the respondent about a letter he received from An Garda Síochána in August 2021 but did not write to the vetting bureau about the information it was considering sending to his employer, the tribunal heard. He spoke with his line manager and HR manager, telling them that he wasn’t making a submission. He also phoned the CEO about the letter, and told her it was “upsetting” to see “reference to abuse beside his name”, the WRC heard.
The CEO said the employee was asked for a copy of the letter at the time, but that she only saw it for the first time when it was submitted in an evidence pack sent to the WRC by the complainant after he lodged his complaint.
The witness said this letter contained “a very different disclosure to what the complainant had referred to in 2019″.
However, she accepted under cross-examination from the complainant’s barrister, Michael Kinsley, that she “did not know” whether the ongoing criminal charges concerned the same claims already examined by Tusla.
The employee told his bosses in January 2022 that he was to be charged in connection with offences – a notification that he said “came out of the blue” from the gardaí.
The man denied telling the CEO that he was being charged with the same issues Tusla had examined.
He was suspended with pay on January 21st, pending an investigation, shortly before the organisation received a vetting disclosure setting out court dates and pending criminal charges on a number of counts.
The employee said that when he met the CEO and the HR manager in February 2021 after attending a Garda station and a court hearing, he felt things were becoming a “fait accompli situation” and felt a decision was going to be made against him.
Notice of dismissal came the following day, he said.
Tom Mallon, appearing for the respondent and instructed by Black & Co Solicitors, said a person could not be maintained in employment “who had been charged and convicted of the type of offences with which the complainant was charged, or against whom such offences were pending”.
He said the pending charges “undermined trust and confidence” and amounted to a substantial reason for dismissal.
Mr Kinsley, instructed by Hanahoe Solicitors, argued that the presence of a charge or allegation on a Garda vetting report “did not render the contract inoperable” and that the organisation had “options”.
“The dismissal of the complainant arising from unproven allegations is a breach of his constitutional right to the presumption of innocence,” Mr Kinsley added.
Adjudicator Kara Turner found that the evidence pointed to “a dismissal based on the nature and gravity of the criminal charges faced by the complainant”. She said the organisation “did not and could not investigate or determine” the allegations.
She found procedural flaws with the investigation and disciplinary process, including the wording of a notification letter calling him to an investigation meeting while telling him he “should have advised [the organisation] of the full extent of the charges”.
Ruling the dismissal unfair, Ms Turner rejected the worker’s application to be reinstated to the role and instead awarded five months’ pay in compensation, a sum of €32,000.
