The Workplace Relations Commission (WRC) has found that the dismissal by Trinity College Dublin (TCD) of a senior college manager after he pleaded guilty to a sexual assault was not unfair.
In a WRC ruling, Adjudicator David James Murphy has dismissed TCD facilities manager Brendan Leahy’s unfair dismissal action.
In his ruling, Mr Murphy concluded that in the circumstances, TCD had discretion as to whether to dismiss Mr Leahy in November 2021.
Mr Murphy stated that while there were flaws in the process that TCD utilised to arrive at that decision, “I am satisfied that these flaws did not result in any actual unfairness to the complainant”.
Dismissing Mr Leahy’s unfair dismissal claim, Mr Murphy stated that TCD “has established substantive grounds for the dismissal”.
He was on a salary in excess of €120,000 for the senior role he held at TCD.
Mr Leahy was dismissed by TCD in November 2021 after a disciplinary process which followed a college-appointed barrister completing a report concerning two disciplinary matters relating to Mr Leahy.
The first concerned Mr Leahy pleading guilty on March 24th, 2021, at Dublin District Court to sexually assaulting a woman at Kehoe’s Pub on South Anne Street, Dublin 2 in June 2018. Mr Leahy was sentenced to three months in prison, which was suspended in full, and fined €1,000.
Investigation
Mr Leahy informed TCD of the conviction and the college placed him on paid suspension pending investigation.
He appealed the court conviction to Dublin Circuit Criminal Court and was given the benefit of the Probation Act in July 2021.
One week after the District Court hearing, a former female employee of TCD sent an email to the College Provost alleging that Mr Leahy had sexually harassed her at a Christmas party three years previous.
The WRC was told the allegation was that Mr Leahy had sat across the room from her and mimed an oral sex gesture while staring at her.
In his findings after three days of evidence, Mr Murphy stated TCD was entitled to consider Mr Leahy’s failure to give them any advance warning of the court case against him in the District Court as misconduct.
Mr Murphy stated TCD academic secretary Patricia Callaghan was entitled to conclude that Mr Leahy had sexually harassed the woman at the Christmas party and, specifically, that he mimed an oral sex act at her from across the room at the event in December 2017.
Mr Murphy said it is unclear as to whether Ms Callaghan factored the misconduct itself into her decision to dismiss.
However, Mr Murphy stated a major aspect of her decision to dismiss was Mr Leahy’s failure to take ownership and show remorse for his actions towards both the woman at the Christmas party and the woman involved in the incident in Kehoe’s pub in June 2018.
He stated that having reviewed the minutes of the disciplinary meeting, there is an obvious basis for this decision to dismiss.
Co-operation
Mr Murphy said Mr Leahy never admitted to either incident or provided context, and was limited in his expressions of remorse.
The WRC Adjudicator also determined that it was a mistake by Mr Leahy not to provide detail around the nature of the sexual assault in Kehoe’s pub.
Mr Murphy said Mr Leahy “was a senior management figure in a high-profile and publicly-funded organisation which educates thousands of young adults. He was entirely aware of that context, and yet he still chose not to engage”.
Mr Murphy said TCD was entitled to consider the sequence of events concerning the court process for the sexual assault “constituted serious misconduct” on the part of Mr Leahy.
As the Circuit Court applied the Probation Act on appeal, Mr Murphy stated for TCD to ignore Mr Leahy’s guilty plea and his conviction at the District Court: “I believe the Probation Act would need to expressly provide the offender with additional employment related protections. It does not.”
In his findings, Mr Murphy said throughout the disciplinary process Mr Leahy took the view that his conviction in the District Court had been overturned by the Circuit Court.
Mr Leahy argued that, at that point the investigation should have ceased as the charge and conviction no longer existed.
Mr Leahy was of the view that the matter could not have formed the basis of any lawful decision to dismiss him while TCD in turn argued that the charge of sexual assault remained proven and Mr Leahy's guilty plea stood.
Leagl advice
Mr Leahy started working for TCD in 1993 and was promoted a number of times, ultimately to the position of head of facilities and services and had 100–200 personnel reporting into him, depending on the time of year.
In April 2020, Mr Leahy was charged with sexual assault which, he said, came as a shock and surprise.
Mr Leahy said he took legal advice to plead guilty, claiming he was advised this would be viewed well by the court and save the person in the case coming back to Ireland to give evidence.
Mr Leahy said he was advised that because of the minor nature of the incident itself and his plea, there was a likelihood that the Probation Act would be applied by the District Court.
He said he decided against telling his employer about the charge and was shocked the matter was going to court and was ashamed by the whole affair.
He thought the matter would likely be dealt with by way of the Probation Act but, against the expectations of his solicitors, he was convicted of sexual assault.
Mr Leahy called TCD's director of HR Antionette Quinn while walking home from the courthouse to notify TCD of the District Court conviction and was placed on suspension.
Represented at the WRC by Aaron Shearer BL, instructed by Tom Roley Solicitor, Mr Leahy believes his dismissal was preordained and since his dismissal he has found it extremely difficult to obtain work.
He occupied a relatively niche role at a senior level as there are few “estates” large enough to necessitate a similar role.
Mr Leahy has continued to look for work and is training as a commercial vehicle driver and expects to earn somewhere between €35,000 and €40,000 when he starts this job.
Ms Quinn told the hearing that all sexual assaults are serious and said she did not know where a line could be drawn to say a sexual assault was not serious.
