A former senior manager at Trinity College Dublin claims he was unfairly dismissed from his €120,000-a-year job after college authorities learned from a press report that he pleaded guilty to sexually assaulting an American tourist.
The Workplace Relations Commission (WRC) was told university management “went into a tailspin” when news broke that its head of facilities, Brendan Leahy, had pleaded guilty in 2021 to sexually assaulting the woman at a pub in Dublin in 2018.
Mr Leahy, of Fenian Street, Dublin 2, was given a suspended three-month sentence by Dublin District Court on condition that he complete a sex offenders course and to pay a fine and a further sum in compensation. He later appealed to Dublin Circuit Criminal Court and was given the benefit of the Probation Act in August 2021.
The WRC tribunal on Thursday heard that Mr Leahy’s line manager only became aware that a charge had been brought against the complainant when he received a text on the evening that newspaper reports began to appear. The commission is hearing a complaint under the Unfair Dismissals Act 1977 taken by Mr Leahy against the university.
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By August 2021, the tribunal was told, Trinity had placed Mr Leahy on paid leave and started an investigation. There had been a second allegation of sexual harassment against Mr Leahy dating back to a Christmas party in December 2017 from a former university employee identified only as Ms X in the proceedings.
Miming
Ms X had accused Mr Leahy of miming the act of oral sex at her across the bar during a karaoke party, the tribunal heard.
“[He] stood close to me and a colleague… berating me and intimidating me and then proceeded to imitate a sexual gesture with his hands and mouth,” Ms X wrote in an email to college authorities.
Mr Leahy’s case is that the investigations against him were procedurally flawed and pre-determined, failing to take into account the order of the Circuit Court giving him the benefit of the Probation Act. The college’s position is that in order for Mr Leahy to have received the benefit of the Probation Act, the charge had to be proven.
He also told a disciplinary hearing that the investigation he was subjected to in respect of the matters was “adversarial”. This was denied in evidence to the WRC by Mairead McKenna SC, an employment law barrister appointed by Trinity to examine the allegations against Mr Leahy.
The university’s barrister, Rosemary Mallon BL, said Ms McKenna made findings of fact that Mr Leahy had entered a guilty plea to the sexual assault charge and received a sentence; that he had not provided that information to his employer, and that the Probation Act had been applied at the Circuit Court on appeal.
Ms McKenna also made findings in the second investigation “completely upholding” Ms X’s complaint, Ms Mallon added.
The tribunal heard Mr Leahy wrote to the college’s HR department in early August 2021 stating that the Circuit Court order meant his conviction had been “disposed of”.
“It was his position that because his conviction ‘no longer existed’ there was nothing for me to look into… He told me ‘That’s gone.’ I was trying to reconcile that with the fact that he had apparently pleaded guilty before the District Court,” Ms McKenna said.
Interpretation
A major issue in dispute in the case centres on the interpretation of the Probation Act in the context of the investigation and disciplinary proceedings.
Counsel for the complainant, Aaron Shearer BL, put it to Ms McKenna that there were two options open in such an appeal - to dismiss the information or charge and to discharge the offence on certain conditions.
“But the facts are proven, Mr Shearer. I was very careful, very careful of this in the findings I came to to take account of the legal position arrived to after the appeal,” Ms McKenna said.
She went on to say that the conviction is “recorded as being dismissed on the Circuit Court order, however the facts remain proven”.
“That’s the one thing Mr Leahy wouldn’t own up to. I was very careful in my findings that they were correct as a matter of law and I stand over that,” she said.
Mr Shearer put it to Ms McKenna that a Circuit Court judge had dismissed it as a “trivial matter” and that the garda in the criminal case had said that what Mr Leahy was prosecuted for was “at the very lowest end” of the scale.
“I’m asking why you perceived it as a very serious matter,” Mr Shearer said.
She replied: “The point of fundamental distinction is between criminal and civil. Whether the guard viewed it as trivial or not, I don’t know. I was looking at it as a civil matter.”
Paid leave
At a previous hearing in November, Trinity’s HR director Mary Leahy said the complainant “had not informed his line manager of the charge or what was going on prior to conviction” and was asked to take paid leave as an investigation began.
Ms Leahy said that although previous complaints by Ms X had not been formally investigated, the college felt it “proper and appropriate” to look into her claims when they were made again in 2021, identifying Mr Leahy.
She said there was “no prejudice” to Mr Leahy as a result of the delay of over three years before an investigation was opened into Ms X’s complaint.
“It would be absolutely inappropriate for there to be an order of reinstatement or re-engagement in this case,” she said. “This is a university with female staff and female students. I say it is entirely appropriate and reasonable for Trinity College to say it has no trust and confidence in Mr Leahy now.”
Adjudicating officer David James Murphy adjourned the hearing overnight.