Was bad advice given?

cokeiscrap

Would like to get the legal perspective on a case that went through the WRC and subsequently the Labour Court where a man lost his job over an unproven sexual assault complaint. With what's going on at the moment with some high-profile cases, it would be nice to get the legal perspective on the events from this case.

The case on the WRC site is UDD2132.

The male in the case was advised to say no comment to any questions that his legal team believed were not work related and these were any questions that were pertaining to anything that happened at the company's Christmas party. It was due to this silence that the employee was dismissed.

If the males legal team got their advice completely wrong, does he have a case against them for advising him incorrectly?

If he was not given the incorrect advice then did the Labour Court and WRC get it wrong and can legal action be taken against them?

The company argued that it was work related because the organised the event and they provided subsidised accommodation at the hotel. The company also supplied free alcoholic drinks at the function, surely this would rule against it being in the workplace.

Nobody was forced to be at the party. Nobody was forced to stay at the hotel. Nobody who did stay at the hotel was forced to take up the option of visiting the residents bar long after the company function had finished. Of course, none of this would matter if the assault actually did take place, but why would someone wait almost 2 1/2 months to report an assault to their manager, when they should have reported any assault to the police.

It can hardly be the case that both parties in this case are correct, so I ask you in the Legal Discussion forum to shed some opinion on this.

What did his solicitors say when asked about the advice given and it’s affect on the outcome of the case?

gk5000

Seemed to me he was playing Soccer in a Gaelic game or vise versa. He didn't play by the WRC / Labour court rules. The expect a submission from each side, setting out their own case and challenging the other, wheras he seemed to be using the right of silence for a criminal case and forcing the other side to prove their case.

Based on what was presented and the precedence given it seemed like the only possible outcome. Maybe his no comment saved him from possible civil or criminal proceedings but do not seem to have helped in the WRC/LC.

cokeiscrap

https://www.boards.ie/discussion/comment/118567755#Comment_118567755

I don't think they cared. They had received their fee.

cokeiscrap

https://www.boards.ie/discussion/comment/118567792#Comment_118567792

But should the advice that was given to him mean that he should lose his job?

Again, nothing was proved. Maybe he was going to lose his job no matter what he said in the first investigation and his legal team gave the advice of no comment to save the criminal/civil case, but it still stinks.

https://www.boards.ie/discussion/comment/118568014#Comment_118568014

Perhaps they were right, maybe losing his job was the lesser of the punishments he could have received if he misbehaved.

Lenar3556

Employer organised Christmas parties, meetings, nights out have regularly been found by the courts and WRC to come under the auspices of employment, and certainly disciplinary matters can arise in the course of such events. It is for this reason employers are often advised to have a firm end time and wrap the thing up relatively early in an attempt to insulate themselves from anything that might occur out on the town later on.

I haven’t read the WRC case, but from the brief summary provided, it would appear likely that events alleged to have occurred at such a party were very much within the realm of what an employer could reasonably investigate and apply the organisation’s disciplinary policy.

‘No comment’ responses are very rarely a reasonable or appropriate level of engagement in the context of an employment matter.

Seems strange advice for him to have been given.

gk5000

https://www.boards.ie/discussion/comment/118568014#Comment_118568014

We don't know the advice he was given or if he followed it.

That said it if he received advice to stay stum then maybe it was incorrect with regard the WRC/LC.

You say nothing was proved...but again you are thinking criminal cases whereas this is more balance of probabilities, and sounds like he was given every opportunity to make his case/put his side forward but didn't take it.

Truth is sounds like he may be being a bit coy, saying nothing so as not to admit anything and hoping the onus of proof on them, but discovering that the onus of proof goes both ways.

Claw Hammer

A lot depends on what he told his legal team about the alleged incident before the advice was given. It is impossible to say whether advice should be given or not, without knowing the context. Having read the labour Court report it seems that the allegation was proven. It happened at a workplace event. The employee was advised to get legal advice, but never brought a solicitor or barrister to any hearing or meeting. I suspect the legal advice was from hob lawyers which is not to say it was bad advice but there is another thread in the work and jobs forum concerning this case so it looks like the o/p is looking for someone to tell him what he wants to hear, rather than discuss the matter.

Peregrinus

https://www.boards.ie/discussion/comment/118568014#Comment_118568014

We don't know the facts, of course, and we don't know what he told his solicitors, which will have conditioned the advice they gave him. But this may have been the least bad outcome that was possible for him. His solicitors may have served him very well in helping him to avoid a criminal charge, conviction and sentence.

Suppose he told his solicitors "yes, I did this". What advice do you think they should have given him, and how do you think that would have played out?

Lenar3556

https://www.boards.ie/discussion/comment/118573861#Comment_118573861

Indeed, but if that is the case one would wonder what business he had in the WRC/Labour Court.

https://www.boards.ie/discussion/comment/118574859#Comment_118574859

Pride cometh before the fall.

cokeiscrap

Some background stuff to what happened.

The alleged assault was meant to have happened after the residents bar was finished. This was sometime in the region of 5am. Probably the thought behind it not taking place during work.

An allegation of assault was believed to have been mentioned before exiting the hotel but there was no call to the police. If this had been made, then there may have been evidence of wrongdoing, if any, or access to CCTV

While male was suspended his name was taken off the holiday calendar. This was not reflected in the first independent report. It looked like there had been no chance

The female was accompanied to her interviews by the onsite nurse, who should have remained impartial through the whole process as she had a duty of care to all employees. This was again overlooked by the investigation.

When the male got a date for his interview, his solicitor advised him that he would be in court that day and briefed him on what to say at the interview. He brought a close female friend to the interview. He was advised that to answer No Comment to any questions regarding the company Christmas Party as this was not deemed as work related. Any questions that were asked about anything else were to be answered as truthfully as possible.