Unjustified dismissal following an allegation of sexual harassment … prison officer reinstated

If you have a discipline issue with one of your employees, it is important that you carry out the correct procedures, that you keep the employee informed, and that you do not pre-determine the outcome before making a final decision as to whether or not the alleged discipline issue occurred.

In 2009 a colleague made allegations of sexual harassment against a prison officer working for the Department of Corrections.

The Department carried out an investigation into the matter which found that while there was no first hand account of the behaviour as alleged by the complainant, there was corroborative evidence that sexual harassment, and threatening, abusive or insulting behaviour did occur, and that the prison officer may have breached the Department of Correction’s code of conduct.

The prison officer was advised of the conclusions of the investigation and invited to make submissions in reply. There were some meetings and letters between the Department and the prison officer and his legal representatives regarding the allegations and investigation. However, the Department eventually dismissed the officer.

The officer filed a personal grievance. After the Employment Relations Authority heard the case it held that his dismissal was unjustified and ordered the Department of Corrections to re-hire the prison officer, and to pay him over $40,000 for lost wages and compensation for humiliation and hurt.

The Authority made several comments about how the Department handled the allegation of sexual harassment. Some of the pertinent comments made are:

• The Department did not provide enough detail to the prison officer with regards to the grounds it was relying on to support a finding of sexual harassment.
• Since the prison officer did not have enough detail, he was not able to comment or explain his alleged actions.
• The evidence the Department relied upon was not sufficient to make a finding of serious misconduct. In other words, there was no evidence that the prison officer was guilty of serious misconduct.
• The Department left a strong impression that it had pre-determined the outcome before giving the prison officer an opportunity to respond.

The lessons from this case are that it is important to follow the policies and procedures set down in your workplace, being sure not to pre-determine the outcome. It is also important to ensure that the evidence backs up any decision you make.

If you are involved in a matter regarding discipline and have any questions about how to ensure you carry out the correct procedures, feel free to phone Alan Knowsley, for a relaxed and confidential initial chat.