ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005741

Dispute for Resolution:

Date of Adjudication Hearing: 07/02/2017

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Complainant’s Submission and Presentation:

The complainant alleged that he had been the victim of a ‘sexual ‘assault or harassment which took the form on one occasion of his bottom being pinched, and another of his skin being squeezed in the stomach area to the accompaniment of adverse references about his weight

On September 19^th 2016 he complained to the respondent about the incidents and followed this up a few days later with a written version of this complaint.

While the company undertook an investigation he says he was not kept informed about its progress.

Eventually, the investigation upheld his complaint and this resulted in disciplinary action against the perpetrator who was administered a final written warning and advised as to his future conduct.

The complainant was not satisfied with this as he continued to be apprehensive about the possibility of a recurrence of the behaviour.

They both shared an open plan working area but were separated by some twenty to thirty metres.

He sought to appeal the outcome of the investigation and the sanction against his assailant.

Initially he was told that the outcome in respect of a co-worker was not a matter for him. But in due course the respondent agreed to a review of the process.

This review upheld the original decision.

Since submitting his complaint to the WRC the complainant has submitted his resignation to the respondent and his notice was due to expire about two weeks after the hearing.

Respondent’s Submission and Presentation:

The respondent submitted that it took a very serious view of the complaint and acted properly and quickly to have it investigated. The complainant was interviewed about his statement and it then proceeded to interview other relevant witnesses.

The investigation was concluded in three weeks and resulted in the complaint against the perpetrator being upheld. This was followed by a disciplinary hearing which resulted in the serious sanction of a final written warning against him. The respondent did not think that final sanction of terminating his employment was justified as it had concluded that the subject matter of the complaint was not a ‘sexual’ matter, much less sexual abuse which had also been referred to.

Further, it had agreed to the review by one of its senior managers as a further response to the concerns of the complainant, even though this was not a requirement of its procedures.

The respondent disputed the basis for the complainant’s apprehension about a recurrence of the behaviour; the employees were not in close proximity and the perpetrator was aware that his job was on the line if there were to be a recurrence.

Findings and Conclusions

The issue nets down to the handling of the matter by the respondent. As the complainant will have terminated his employment with the respondent before this decision is published any recommendation with a view to improving the situation for him will be pointless.

And in fact, it is hard to know what might have been in such a recommendation that would have added to the initiatives already undertaken by the respondent.

At the heart of the complainant’s submission was criticism of the respondent’s handling of the matter.

I can find no such fault with it.

It acted with all due dispatch in processing the complaint and concluding its investigation within fifteen days.

This resulted in the complaint being upheld and it then took relatively severe disciplinary action against the perpetrator. I do not think there is any requirement to provide the complainant with regular updates at all, and certainly not when the investigation was concluded so speedily.

The complainant was aggrieved at the outcome and seems to have wanted the company to terminate the perpetrator’s employment. Certainly he stated at a follow up meeting (November 22^nd 2016) that he was ’disappointed’ that the perpetrator had not been dismissed.

Such a decision is one for the employer (until referred outside the workplace) and not for a complainant in these circumstances who has no role in the matter at all. The respondent outlined the factors it weighed in reaching a decision which seemed fair and proportionate and to give a role to a grievant in such circumstances would be highly problematic, to put it no more strongly, from the point of view of the application of principles of fair procedure.

The complainant’s apprehension about a repetition of the incidents complained of seems totally overstated and without foundation. From the cursory description of them at the hearing the initial incidents were relatively minor in nature and, while unacceptable, there was no objective basis for believing they would ever be repeated, given the steps taken by the respondent.

Again at the November 22^nd meeting the complainant is reported as having said of the perpetrator ‘there would be no issues from him in relation to Person B should they meet during the course of their day.’ Indeed the entirely positive tone of that meeting leaves one wondering how this complaint has arisen.

The complainant’s apprehensions may have been fuelled by the external factors he raised in his submission, but that remains a matter for conjecture.

But the respondent actively engaged with the complainant in an effort to help him address the outcome of the incident. He availed of the Employee Assistance Programme and he told the respondent at the November 22nd meeting that ‘he found it helpful’.

In his letter of resignation of January 23^rd 2017 he thanked the company for having ‘saved’ him (from issues going on in his personal life) and stating ‘I enjoyed my tenure with the company and will leave with some fond memories. This is somewhat at odds with his assertions at the hearing that the incidents which gave rise to this complaint were a factor in his resignation and this claim is not credible.

Accordingly, the complainant has no basis for a complaint against the respondent which acted in line with good HR practise and achieved an outcome that was balanced and just.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the reasons set out above complaint CA-00007971-001 is not upheld and it is dismissed

Dated:   20 March 2017