Complainant

Respondent

Anonymised Parties

A General Ledger Staff Accountant

A Global Logistics Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016959-001

21/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00016959-002

21/01/2018

Aside from the complaint under the Organisation of Working Time Act which is considered below, the substance of these complaints relates to the complainant’s contention that she was unfairly dismissed. She joined the company in September 2015 as a general ledger staff accountant. A series of investigations arising from an incident in June 2016 eventually led to her dismissal on July 27th 2017.

Around January 2016, the complainant said she became friends with a male colleague who I will refer to as “Tony,” playing table tennis at lunchtime and seeing each other in work almost every day. After she went on two occasions to a sports event that he was involved in, she thought that he might want to go out with her, but that he was too shy to ask.   On June 29th 2016, she asked Tony about his intentions and she said that “he reacted by getting mad at me.” He told her that he had a girlfriend, but this turned out not to be true.      

After that, the complainant said that their daily interactions stopped and any time she encountered Tony he ignored her. She was upset about this and felt that she had to avoid him, and she thought that he avoided her. In August, she said that he started to acknowledge her again and on September 23rd, she went to his desk with the intention of asking him if they could just be nice to each other. Tony responded by telling her he was busy. Three days later, he submitted a complaint of sexual harassment against the complainant. He alleged that,

1. In the evenings, she waited for him in reception;

2. She waited for him in her car in the mornings;

3. She constantly sent him messages on the company’s instant message system;

4. On two occasions, she approached him at his desk and on the first occasion, she suggested that they go out with each other;

5. She checked his Facebook account and showed someone a picture of him and two girls;

6. She stared at him at the company barbecue;

7. She frequented a part of the building close to his desk.

At the end of an investigation into these complaints, two were upheld. The first was that the complainant had invaded Tony’s space by approaching him at his desk on September 23rd 2017 and the second was that she had shown someone his Facebook pictures. The outcome of an appeal in December concluded that it was not possible for the investigators to determine if the complainant had shown anyone Tony’s Facebook pictures, as the complainant demonstrated that she hadn’t got access to his Facebook page.

The investigators recommended that Tony and the complainant engage in mediation to try to resolve their conflict. Tony refused, and, on December 20th 2016, the complainant submitted a series of grievances against him:

1. That, if he had a girlfriend, he had paid unwanted sexual attention to the complainant by staring at her, being in places when he knew she would be and hugging her at the second sports event she attended to support him;

2. Lying to her and to the HR department about having a girlfriend;

3. That he made a misleading complaint about being sexually harassed, when he was clearly friendly with the complainant in several respects;

4. That he twisted the words she used on June 29th, when she asked him if their friendship was going anywhere;

5. On September 23rd, he made a complaint about sexual harassment when she said that she asked him if she could speak to him for two minutes;

6. His behaviour on September 23rd was unprofessional and unacceptable when he refused to speak to the complainant when she asked him nicely and there was no indication that she intended to “make a move on him;”

7. He turned down the invitation to engage in mediation.   The complainant considered this and his whole complaint to be an act of bullying.

In March 2017, the investigating managers concluded that the complainant’s allegations were made maliciously because of Tony’s refusal to engage in mediation and the matter was then treated as a disciplinary offence. On April 5th, the complainant complained about the investigation that resulted in this finding, claiming that the investigators refused to accept that Tony made a false, malicious complaint about her.

Ultimately, the outcome of the disciplinary investigation was a finding that the complainant did not make a complaint against Tony with malicious intent.

To bring matters to a close, the complainant asked for a review of the outcome of the complaint that Tony made about her in September 2016. She said that she wanted to clear her name and she asked for an official acknowledgement that Tony’s complaint was untrue and malicious and for this to be communicated to him. On May 25th, the reviewers concluded that the complainant’s concerns had been fully investigated and did not constitute a legitimate grievance.

On June 12th 2017, the complainant sent an e mail to Tony in which she told him that she had been suicidal, that she was terrified of him and she accused him of trying to ruin her life. She was accusative and offensive and placed the responsibility for her problems over the previous year fairly and squarely on him. Tony complained about this letter, alleging that he was bullied and harassed. During the investigation, it emerged that the complainant sent an e mail to his friend on May 29th. In this very long e mail, she described what occurred and how she was affected from the time of the initial complaint up to the conclusion of the investigations in May 2017.

Following an investigation into the sending of these e mails, the complainant was again put forward for a disciplinary investigation. The investigators concluded that she had “bullied and harassed a fellow employee” and, on July 25th 2017, she was dismissed. Her dismissal was upheld on appeal.

The evidence of the complainant and the witnesses for the respondent are summarised under the heading of the complaint under the Unfair Dismissals Act below. First, I will consider the complaint under the Organisation of Working Time Act.

In her complaint form, the complainant said that she didn’t receive any payments for annual leave not taken at the time of her dismissal and that she didn’t receive any information to show what leave she had taken and what was left when she was dismissed.

Documents submitted by the respondent show that when the complainant was dismissed, they calculated that she was owed four days of untaken holidays. Her final payslip was also submitted in evidence and shows that she received her salary for the month of July 2017, although her employment was terminated on July 25th. The respondent’s case is that the complainant was paid up to the end of July, to take account of her entitlement to four days holidays remaining on the date of her termination. The days on which she did not work and for which she was paid were July 26th, 27th, 28th and 31st.

This complaint about holiday pay could been avoided if the respondent had provided clear information to the complainant about her outstanding holidays at the time of her dismissal. However, having examined the evidence put forward by the respondent, I accept that the complainant was entitled to four days’ leave when she was dismissed and that she was paid for these four days in the form of wages for the last four working days of July.

I have concluded that the complainant was paid for the holidays that she had not taken up to the date of her dismissal and I decide therefore that her complaint under the Organisation of Working Time Act is not upheld.

As the burden of proof is on the respondent to show that the dismissal of the complainant was not unfair, the evidence of the respondent must be considered first.

The Reason for the Dismissal

The complainant was dismissed on July 27th 2017 because of the contents of an e mail she sent to Tony on June 12th, and because of an e mail she sent to his friend on May 29th. It is not necessary to repeat in full the contents of these mails. However, it is apparent that her dismissal arose because, on June 13th, Tony complained about the e mail he received the previous day, so there is some purpose in exploring the issues that led to his complaint. The first paragraph of the e mail that Tony complained about sets the tone:

“I’ve noticed you started acknowledging me again a few times and I’m not sure what to think of it. We’ve been there before. Last Aug (sic) you finally ended your silent treatment of me and when I tried to make things better between us, as seemingly that’s what you wanted too, you know what happened. What do you expect now? I’m terrified of you. What if I respond and you turn on me again? I’d like to be on good terms with you, but I tried 3 times and you were nothing but awful to me, pretty much trying to ruin my life.”

The complainant went on to tell Tony how his behaviour had affected her, how she had been suicidal the previous year and how she felt he had put her through “an absolute nightmare.” She referred to the lies that Tony told about her as “unreal” and she told him that he was “shameless, arrogant and manipulative.” She told him that he was “not a healthy individual” and she said that sometimes she thought he was “pure evil.” Referring to Tony’s participation in the investigations that went on over the previous 12 months, the complainant said,

“Certain quotes I read from you in the reports were so arrogant, insulting and abusive. Telling me to get over being falsely accused and nearing losing my career is bullying. I’m getting better and I’m nearly there, but it took me a long time.”

In the final paragraph, the complainant refers to her sense that Tony is trying to engage with her again:    

“The reason why I haven’t reacted to your recent acknowledgements is because you did the exact same thing before you made your complaint and I don’t know what to expect now. As I said I’d like to be on good terms with you, so you are welcome to approach me, but I can’t pretend nothing happened. Based on your unwillingness to sort this out so far I doubt you’ll come up to me, even though it’d mean a lot. If you’d rather go back to ignoring me suit yourself.   And if you don’t see anything wrong with the things you did and said, there’s really no point in us being friendly with each other.

PS, Despite that the past year, I’ve been nothing but tense, scared and upset around you, there was a time I actually loved being in your company. The way you couldn’t hide your attraction to me was really sweet and you can never take that away from me, so I do want to thank you for that.”

The following day, Tony sent an e mail to a member of the human resources department in which he said,

“I’d like to make a formal complaint of harassment and bullying as per below.

“It would appear that there has been an attack on me and on my character and this correspondence…is absolutely not welcome which has been outlined previously.

“There has also been an e mail sent to (name of colleague) by (name of complainant) again discussing details of the original investigation and as an indirect approach to me.”

On June 14th, the complainant was suspended, pending the outcome of an investigation into Tony’s complaint. Tony and the complainant were interviewed as part of the investigation and on July 18th, the investigators reached the conclusion that the e mail contained inappropriate comments and that these comments were an attack on Tony’s character. The investigators also found that the e mail sent to Tony’s friend was evidence of the complainant’s unwillingness to accept the findings of previous investigations and to move on. One of the investigators gave evidence at the hearing and she said that she found it hard to conclude that the complainant understood the seriousness of what she said in the e mails. The investigators found that Tony’s complaint constituted a legitimate grievance and they passed the sending of the e mails forward for consideration under the company’s disciplinary procedure.   Two disciplinary hearings were held on July 24th and 25th and on July 27th, the complainant was issued with a letter of dismissal. The letter concluded that,

“…(the respondent company) has a duty of care to prevent improper conduct or behaviour. We outlined to you that, based on the investigation report, the inappropriate content of the e mails and the information you had provided to us we formed the reasonable opinion that you had bullied and harassed a fellow employee.   Having considered all of the information available to us, the decision was made to terminate your contract of employment on the grounds of bullying and harassment, which constitutes gross misconduct. We regret that this course of action is necessary but under the circumstances, we feel that there is no alternative.”

The manager who dismissed the complainant, “AB,” also gave evidence. He said that the complainant displayed a pattern of behaviour that he thought would continue. He said that he didn’t get any sense that she thought the e mails were inappropriate and he thought “this wasn’t going to be the last of it.”  

The e mails were written at the end of a series of investigations lasting almost a year.   The complainant felt the investigations were not conducted fairly. She alleged that her colleague told lies about her and that his lies were believed. The company’s position is that the investigations were properly conducted. AB referred to the findings of an investigation report of May 25th 2017 which concluded that the complainant’s concerns were fully investigated and that she did not have a legitimate grievance in respect of how the issues she raised were investigated by the respondent’s managers.

At the hearing, one of the managers, “CD,” who investigated Tony’s complaint of bullying and harassment gave evidence about a meeting with the complainant on June 14th, two days after it was sent. It appears that the meeting was short, as the notes run to around 200 words.   CD said that the complainant wanted to go back through previous investigations and that she was very upset and that this is the reason the meeting was short. The next day, the complainant submitted a long e mail setting out her reasons for sending the mail to Tony on June 12th and the background, and this was accepted as her statement on the matter.

The Respondent’s Position that the Dismissal was not Unfair

For the respondent, Mr O’Gorman argued that the dismissal of the complainant was substantively and procedurally fair. He said that the complainant was aware of the allegation of bullying and harassment, she was informed of the potential outcome of the disciplinary investigation and she was informed of who the decision-maker was. She was given the right to representation and notes were taken of meetings and she was given a copy of the notes.

Mr O’Gorman submitted that the language used in the e mails to Tony and his colleague were “highly inappropriate.” The e mail and the tone of the language was found to constitute bullying as it was consistent with a pattern of behaviour displayed by the complainant for over 12 months. The complainant’s actions indicated that she was unwilling to let matters rest.  The manager who dismissed the complainant felt that it was likely that the complainant’s pattern of behaviour would continue.

As the respondent has a duty of care to all its employees, it was argued that the reasonable conclusion of the investigation was that, if the complainant remained in the workforce, that Tony would continue to experience the same treatment.

During the investigation into the sending of the e mails, the complainant said that she had got permission to do so from the manager who conducted the investigation that concluded on May 25th 2017. This was the investigation into how Tony’s initial complaint had been handled and the outcome was that the complainant’s request for this investigation was not legitimate. The manager said that he instructed the complainant not to contact Tony or anyone else who was involved.

Mr O’Gorman submitted that the dismissal of the complainant falls within the band of reasonableness required for a fair dismissal.

Events Leading to the Sending of the E Mail of June 12th 2017

In her submission at the hearing, the complainant described how Tony befriended her in January 2016. He was involved in mixed martial arts and in March, he invited her to a charity fight.   In the following weeks, the complainant said that she noticed Tony “taking quick glances” in her direction. Between March and June 2016, she observed him checking her out and “looking at my chest and legs.” She said that she wasn’t wearing revealing clothes and that most of the time, if she saw him looking at her, he would turn away.

The complainant played table tennis with a colleague at lunchtime and between March and June, Tony and his friend joined them, and they played doubles. The complainant said that during this time, Tony would flatter her and refer to them as “the dream team.” The complainant said that she wouldn’t have been opposed to him asking her out. In retrospect, she said that she should have found his behaviour alarming instead of flattering.

Every day, the complainant said that Tony would come up to the area where she worked and walk past her desk staring at her. When she noticed him, he would just look away. She said that other things should have signalled that his behaviour was strange; he told her he lived alone, and it turned out he lived with his parents. He said he paid €300 for a table tennis bat and it emerged that the bat cost €20.   He boasted about his power-lifting abilities which the complainant said was simply to get “one up” on her.

The complainant described how Tony would be eager to talk to her one day, and the next day, shift his attention to someone else. She felt this “hot and cold” behaviour was intended to confuse her and that he was playing games. When she attended a second fight in June 2016, the complainant said it was evident that Tony had feelings for her, as he hugged her several times during the evening when they watched the fights that took place after his fight.

Back at work the next week, the complainant said that Tony acted as if he was in love with her, waving at her childishly when he saw her and shouting after her to get her attention.   A week later, he cooled again.   The complainant said she couldn’t make sense of his behaviour and, as this had been going on for about four months, she decided to ask him about his intentions as “his behaviour was no longer welcome.” On June 29th, the complainant said that she went up to Tony and called him aside to a quiet place and said, “I’m mad at you for giving me such mixed messages.”   Tony said “what?” a couple of times.   The complainant said she was nervous, and she repeated herself, “I’m mad at you for giving me such mixed messages.” Then she continued, “sometimes you are so eager and obvious, other times you ignore me and it’s alright if you don’t want to ask me out, I just wish you’d make up your mind.”   In response, the complainant said that Tony stared at her and said, “I have a girlfriend.”

The complainant knew that Tony hadn’t got a girlfriend. She hadn’t seen anyone behaving like a girlfriend at the two fights she attended, and, at the second fight, Tony spent all his time with her, touching her and hugging her “very inappropriately for someone who would have a girlfriend.”

Looking back at her experience with Tony, in her submission, the complainant said that it was as if she was rejecting Tony and, although this doesn’t seem to make sense, she said that because she told him that she knew that he liked her, “he lost his perceived control and fantasy” over her and she put an end to whatever he was doing. She thinks that she “ruined his game and he started punishing me for it.”

Following this, the complainant said that Tony was “visibly mad” at her and gave her “the silent treatment.” She said that he stopped talking to her and stopped playing table tennis in their regular group. If she ran into him on her own, the complainant said that Tony gave her a nasty look and she felt that he wanted her to know he was angry with her. She said that she found this upsetting and that she stopped going to public areas in work, she stopped playing table tennis and started having her lunch off-site or in an empty wing of the building.   On July 9th, the complainant sent Tony a message on the company’s instant message platform, asking him why he was behaving as he was, and asking him to stop. Tony didn’t reply. That weekend, the complainant said that Tony blocked her as a friend on Facebook, even though she had never contacted him through Facebook.

During July and August, the complainant said that she went out of her way to avoid Tony and she changed her whole routine. She said that his behaviour created such a negative atmosphere that she found it hard to work and she wanted the tension to end. After the complainant sent Tony a message on Instagram, he again didn’t reply, but he started acknowledging her again, and they played table tennis once. “Since he was finally looking like he was coming around,” the complainant said that on September 23rd, she approached Tony at his desk and said, “can you just be nice to me for two minutes?” He replied that he was busy. The complainant said, “it’s bothering me, the way you’re acting, it’s not nice,” to which Tony again responded that he was busy.

The following Monday, September 26th, Tony submitted a complaint of sexual harassment against the complainant.

Complaint of Sexual Harassment – September 26th 2016

The allegations submitted by Tony have been set out in the “Background” section above.

In her submission, the complainant sets out her concerns about Tony’s complaint and her perception of his motivation for making it. She thinks that his complaint was intended to give the impression that she is a stalker who was infatuated with him and that he had to take steps to avoid her. She said that Tony omitted crucial facts such as that he chose to spend time with her daily and was friendly to her in front of colleagues and that their relationship only broke down when, on June 29th 2017, she questioned his intentions. The complainant said that Tony’s complaint “contains outright lies, manipulative and frivolous in parts. He knowingly made false statements in it and during the investigation…in my opinion it must be one of the clearest examples of a false complaint against someone.”

The complainant’s position regarding Tony’s claim of sexual harassment is that he made a malicious and false complaint in retaliation for her raising an issue about his bullying behaviour and to threaten her. She feels that he expected her to go along with the way he was treating her. She also thinks that it’s likely that he made a complaint about her as a pre-emptive measure in case she brought a complaint against him, for refusing to do something about his behaviour. It is her view that Tony “knowingly made false statements with the intention of misrepresenting the facts and to try to get me into trouble.” He withheld important information and falsified other details. She thinks that he must have known that this had the potential to ruin her reputation and her career. He had no proof for any of his allegations and the fact that he socialised with the complainant daily in work and outside work is “an inexplicable contradiction” considering that he alleged that she stalked him. She said that as a perpetrator, he tried to paint himself as a victim.

Following an investigation and an appeal by the complainant, just one of Tony’s seven allegations was upheld, that the complainant invaded Tony’s space by approaching him at his desk on September 23rd 2017. The other allegations were “neither upheld nor dismissed.”

Tony was off work on paid leave from September 26th, when he made the complaint, until late November or early December, when the investigation into his complaint of sexual harassment was concluded. The complainant said she was informed that he was absent, but not told the reason.   She saw him when she was returning from her lunch on December 5th and she got such a fright that she didn’t go into the office but walked around the outside of the building.

Complaint against Tony for Making a Malicious Complaint – December 20th 2016

When Tony refused to participate in mediation, the complainant submitted a complaint against him. She said that he had made her life at work intolerable, he conducted a smear campaign against her and had lied about her. She said that he ruined her name and reputation in the company, including the opinion of her bosses and the managers involved and anyone he told about her. She wanted the company to acknowledge that he had made a false complaint and that he knowingly made false statements. She said that she wanted to feel safe after living in fear of him for six months and she wanted to feel safe from future accusations.

Between December 2016 and June 2017

The complainant provided a detailed account of what occurred after she submitted her complaint against Tony. A finding in March 2017 concluded that she made a malicious complaint, although a disciplinary investigation in April found the opposite. She asked for a review of the initial investigation, but, in May, the company found that her concerns “did not constitute a legitimate grievance.” On May 29th, she sent an e mail to Tony’s friend, outlining her experiences and the effect of Tony’s treatment on her. On June 12th, she sent an e mail to Tony, telling him what she thought of him and again, explaining how his behaviour affected her.   Her submission on the events that occurred between December 2016 and June the following year and up to her dismissal is detailed, setting out in clear terms the facts of what occurred, the people involved and her views about the injustice of the initial investigation and the awful effect it had on her. Although there is little scope in this report for reflecting the distress that she suffered, the complainant’s account and her evidence at the hearing was compelling.

E Mail of June 12th 2017

When she was asked at the hearing why she sent the e mail of June 12th to Tony, the complainant said, “they pushed me to the edge” and that she couldn’t understand how Tony was still employed. She said that while part of her wanted him not to be working in the company any longer, she wanted the managers who had been involved in the investigations to acknowledge that he was wrong. She said that the situation had been going on for a year and that she had tried to avoid him. When he submitted a complaint in September 2016, she said she knew he was telling lies. He had gone from being nice to her to being malicious, and she found it hard to understand how the investigators could believe what he said about her.

In June 2016, after Tony’s first complaint, for nine months afterwards, she avoided him.   She changed her lunchtime and she made sure she didn’t go near where he worked. Then, in April 2017, he started acknowledging her again. The complainant was promoted in May 2017 and she was moved near to where Tony sat. She said that this felt like having to face her “accuser” every day.   She said that she didn’t feel safe.   When Tony acknowledged her several times, she said she asked herself, “what if he’s setting me up?” She said that on the one hand, she was relieved and on the other hand, it was unsettling, because she didn’t trust him.

In her submission, the complainant said that there was “this unresolved issue between us that needed to be addressed if he wanted to re-establish contact.” She said that her employer closed off dealing with it and she felt that she had to deal with it herself, because Tony wasn’t ignoring her, as he had claimed.   She said she was in a no-win situation, because, if she ignored him, he could have reported her for being difficult, and if she approached him, “and it was all a set up for a new complaint,” she lost anyway. She said that she wanted to know why Tony was acknowledging her again. She now believes it was a deliberate act on his part to provoke her into approaching him and this is what she did, when she sent the e mail on June 12th.    

Two days later, the complainant attended a meeting to investigate Tony’s allegation of bullying and harassment. The complainant said that the manager hosting this meeting, “AB,” didn’t give her a chance to speak, interrupting her and not letting her finish her sentences.   This is the reason she sent in a detailed submission the following day. The disciplinary meetings on July 24th and 25th were longer, lasting about two hours.   The complainant said that she was listened to at these meetings.

Addressing the fact that she sent an e mail to Tony’s friend on May 29th 2017, the complainant referred to the May 25th outcome of the investigation into her grievance about how Tony’s first complaint was handled. Before the report was issued, the complainant said that Tony’s friend knew what was going on and that she was thinking of sending him an e mail. She said that the investigating managers asked her to let things go but her understanding is that they said that they saw no reason why she couldn’t contact Tony’s friend if she wanted. In sending that mail, the complainant said that she wasn’t expecting Tony’s friend to say she was right, but she felt that he was uncomfortable with what was happening, and she was trying to tell him her version of the story. It is apparent from the evidence presented at the hearing that the recipient of his e mail was open to hearing what the complainant had to say as he responded to her before he read it saying, “Just seeing this e mail now…I will have a read of your e mail when I get some time, as I can see it’s very long and I’ll reply once I’ve read it. Just letting you know that I’m not ignoring it.”

In her closing statement, the complainant acknowledged that, “in normal circumstances, a few things I said in that letter would be inappropriate.” She argued however that she should not have been in a position where she felt compelled to send the e mail, but “because of the year of bullying” by Tony and her employer, she ended up feeling compelled to send it.

Mitigation of Loss

The complainant was dismissed on July 25th 2017 and she said that she started a new job on December 13th 2017. She finished there on March 5th 2018 and she got another job on May 8th. She was unemployed therefore, for a total of seven months. She said that, in her current job, she earns €10,000 less per year than what she earned with the respondent.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. It is the respondent’s case that the complainant was dismissed for sending an inappropriate e mail and that this e mail constituted bullying and harassment.

Was the Decision to Dismiss Reasonable and in Proportion to the Conduct?

As has been established by the former Employment Appeals Tribunal (EAT) in many instances, and specifically, in the case of Looney & Co Limited v Looney [UD 843/1984], my job is to determine if it was reasonable for the respondent to conclude that, by an objective standard of assessment, the complainant engaged in bullying and harassment, meriting the response of dismissal.

An exploration of the facts relied upon by the respondent in reaching the decision to dismiss provides the basis for the test of reasonableness. The facts are as follows:

The complainant was friendly with a work colleague, who we have referred to as “Tony.” From his behaviour around her, she got the impression that he liked her. Based on her evidence, it wasn’t unreasonable for her to have this impression.   It is regrettable that the respondent did not call Tony to give evidence. From the evidence of the complainant, we learned that Tony’s behaviour wasn’t straight-forward, and he oscillated between keenness and coldness and the complainant said that she became fed up and confused. At the end of June 2016, she asked him to make up his mind and from then on, she said that Tony was “visibly mad” at her. After about three months, Tony became friendly again and the complainant approached him at his desk and asked him if they could just be nice to each other.   Tony submitted a complaint of sexual harassment, setting out seven allegations against the complainant.

Complaint of Sexual Harassment

Sexual harassment is a malignant and undermining form of abuse and an employee making a complaint under this heading must be taken seriously. In Tony’s case, the respondents followed their procedure and conducted an investigation. In response to Tony’s seven allegations, the investigators concluded as follows:

1. In the evenings, the complainant waited for him in reception – “neither upheld or dismissed.”

2. She waited for him in her car in the mornings – “neither upheld or dismissed.”

3. She constantly sent him messages on the instant message system – “neither upheld or dismissed.”

4. On two occasions, she approached Tony at his desk and her comments and Tony’s opinion that she invaded his personal space was interpreted by him as harassment – “upheld.”

5. She checked his Facebook page and showed someone a picture of him and two girls – “upheld.”

6. She stared at him at the company barbecue – “not upheld.”

7. She frequented a part of the building close to his desk - “not upheld.”

Following an appeal, the fifth allegation, that the complainant showed colleagues Tony’s picture on Facebook, was changed to “neither upheld or dismissed.” The final outcome therefore, was that allegation 4 was upheld. In this regard, the investigators concluded that Tony was sexually harassed when the complainant approached him June 2016 and asked him if he would make up his mind about going out with her. They also found that he was harassed when, in September 2016, she knelt beside Tony’s desk to ask him if she could speak to him for a couple of minutes. They concluded that this was “an invasion of his personal space and made him feel uncomfortable.”

“Sexual harassment” is defined at section 14A of the Employment Equality Act 1998 (as amended) at subsection (7)(a)(ii). It is described as,

“…any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

The behaviour that the investigators decided was sexual harassment occurred when the complainant made two attempts to have a conversation with Tony. On both occasions, in an open plan area and lasting a short few minutes, the complainant approached Tony and asked him if she could speak to him about what was going on between them. The conduct complained about was therefore verbal. On the first occasion, Tony said that the complainant “asked him out.” She denies this, but, taking his complaint at face value, her conduct does not meet the test of “having the purpose or effect” of violating Tony’s dignity or of “creating an intimidating, hostile, degrading, humiliating or offensive environment.” On the second occasion, Tony said that he felt uncomfortable when the complainant invaded his personal space. A feeling of discomfort is not the same as a feeling of intimidation, hostility or humiliation and, on this basis, the investigators were wrong to conclude that the complainant’s conduct amounted to sexual harassment.

The investigators concluded that, “it is apparent that your comments could have been interpreted by ‘Tony’ as harassment.” The problem with this finding is that it is not the conclusion of the investigators; it is a reiteration of Tony’s interpretation of what occurred. By conflating Tony’s opinion with their own findings, the investigators abdicated on their responsibility to reach an independent conclusion.

I have examined the evidence presented by both sides of this complaint and it is my view that the outcome of the investigation into Tony’s complaint of sexual harassment was wrong. The first three allegations and the sixth allegation were “neither upheld or dismissed” because there was no evidence to substantiate them. On this basis, these allegations, like the sixth and seventh in the list, should have had a finding of “not upheld.” The fourth allegation about the two conversations was upheld. It is my view that this was a grave error on the part of the investigators, which resulted in a litany of misery and distress for the complainant, and ultimately, it led to her dismissal.

December 2016 – June 2017

The events of December 2016 until the complainant was dismissed have been set out in the previous sections. Tony refused to engage in mediation and the complainant made a complaint that his initial allegations were malicious. She was then subjected to a disciplinary investigation, but the outcome was that her complaint was not malicious. Following this outcome, on May 2nd 2017, she asked for a review of how the first investigation into Tony’s complaints was carried out. She had reached the conclusion that, by complaining about her in September 2016, Tony was bullying her, by adopting the persona of a victim. In her e mail in which she looked for a review of the investigation, she explains that she is close to resigning:

“I would like this resolved now as soon as possible and I will give my notice next week if I can’t get this resolved by then. I have no idea how I am going to manage, but I will figure something out. I guess this is my version of a hunger strike, but the situation is intolerable for me now. I am extremely disappointed by all this, but I cannot be treated this way any longer in the hope I will give up.”

On May 25th, in a detailed response to her concerns about the way Tony’s complaint was investigated, the company concluded that her complaints were “not a legitimate grievance.”

The e mail that the complainant sent to Tony on June 12th 2017, and the mail she sent to his friend two weeks beforehand was at the end of long saga of complaints and allegations.   The complainant described her life at work at that time, which went from being confusing and tense, to distressing and, at times, frightening. She said that she couldn’t sit her exams and she was suicidal at times. The complainant is intelligent, articulate and resourceful, and, in September 2016, she clearly felt that she could deal with the complaint of sexual harassment that Tony made about her. She responded by telling her side of the story and it is my view that she was honest and truthful in doing so. The process of the investigation and the finding that Tony’s complaint of sexual harassment was upheld had a traumatic effect and the complainant then set about trying to clear her name. It seems to me that this was an entirely reasonable response. She considered leaving. But, she had a good job, she had just been promoted and got a considerable pay increase and, she was not yet fully qualified, so the prospect of leaving didn’t make sense. More importantly for her I think, was the problem that, if she left, she would never clear her name.

E mail of June 12th 2017

When she sent the e mail to Tony’s friend on May 29th, he replied that he would read it and get back to her and he said that he wasn’t ignoring her. In any event, he didn’t respond. When the complainant sent an e mail to Tony on June 12th, he made a complaint of bullying and harassment. I have provided details of the contents of this mail in the section, “Summary of the Complainant’s Position” above.

It must be apparent to anyone with a miniscule understanding of how people deal with stress that this e mail was an attempt at closure. It was preceded by Tony starting to acknowledge the complainant again, and she was aware that she was in danger of being set up. She concludes by saying, “And if you don’t see anything wrong with the things you did and said, there’s really no point in us being friendly with each other.” It seems to me that this was a polite request to Tony to “back off.” Tony however, resorted again to being the victim, “there has been an attack on me and on my character…” and, at the end of another investigation, the complainant was dismissed.

Conclusion

I have already stated my view that the outcome of the investigation into Tony’s complaint of sexual harassment that was communicated to the complainant in November 2016 was wrong. This outcome followed from an unfair and flawed investigation, where the investigators seem to me to have been inexperienced and not competent to deal with the issues confronting them. As a complaint of sexual harassment, it should have been delegated to an independent expert.

The complainant’s efforts to remedy this unfair investigation were met by a finding that her grievance had no legitimacy. As she was dealing with this bizarre outcome, Tony was acknowledging her again. She was confused and emotionally wrecked. She was looking for acknowledgement of what had gone on and, for someone close to the situation to recognise her right to her account of what had happened. She put her thoughts in an e mail to Tony’s friend, because she considered him to be a decent person. Based on what she had been through in the previous months, I find this behaviour entirely normal and understandable. For reasons that we can’t speculate on, while he said that he would get back to her, Tony’s friend didn’t respond and on June 12th, she sent an e mail to Tony himself. It is my view that the complainant sent these mails to bring matters to a conclusion and I disagree with the dismissing manager’s finding that “this pattern of behaviour” would continue. The only person who had displayed a specific pattern of behaviour was Tony.

The investigators who considered Tony’s complaint concluded that “the contents of both e mails were very inappropriate, and were tantamount to bullying and harassment.” The comments that were identified as inappropriate, were the statements, “You’re shameless, arrogant and manipulative…” and “You are not a healthy individual…” and “Sometimes I think you’re pure evil.”

Tony said that he considered this e mail as an attack on his character. From his subjective standpoint, this may not have been unreasonable. The question that arises however, is, does the sending of the e mail and its contents constitute bullying? Clearly, in the context of a normal working relationship, the complainant’s comments are opinionated and offensive. They are a direct, unvarnished expression of her opinion of her erstwhile friend.  

The Code of Practice Detailing Procedures for Addressing Bullying in the Work Place, (Declaration) Order 2002 (S.I. No. 17/2002) provides a definition of bullying:

“Workplace Bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual's right to dignity at work. An isolated incident of the behaviour described in this definition may be an affront to dignity at work but, as a once off incident, is not considered to be bullying.”

Referring to this definition, Mr Justice O’Donnell, in the Supreme Court case of Ruffley v the Board of Management of St Anne’s National School, [2017], IESC 33 remarked:

“At each point the statutory drafter has chosen a term at a markedly elevated point in the register: conduct must be repeated, not merely consist of a number of incidents ; it must be inappropriate, not merely wrong; and it is not enough that it be inappropriate and even offensive: it must be capable of being reasonably regarded as undermining the individual's right to dignity at work.

He went on in this judgement to conclude that, for conduct to be bullying, it must be “outrageous, unacceptable and exceeding all bounds tolerated by decent society.”

It is my view that, in her e mail, the complainant’s conduct did not meet the test set out in the Supreme Court case referred to here and, it was not bullying and harassment.   I have come to this conclusion for the following reasons:

1. The complainant’s comments were direct and indiscreet. Unlike bullying, which is characterised by deviousness, what she said was clear and she identified herself as the author.

2. This e mail was not repeated behaviour, as required by the definition, as this was the first time that the complainant communicated with Tony by e mail and the first time that she told him what she thought of him.

3. Her comments may have been “inappropriate and even offensive,” but they could not be regarded as undermining Tony’s right to dignity. The e mail was sent directly to Tony and not to anyone else. The complainant’s comments were unrelated to any personal characteristic such as gender or nationality and they focussed on nothing other than his treatment of her.    

4. They are in the context of a much longer statement, which refers to the possibility that they could have been on better terms. Other parts of her e mail are warm and reflective, “…there was a time when I actually loved being in your company…” and the offending comments seem to me to have been extracted to build a case for dismissal.

5. They are an effort to communicate the reality of what the complainant experienced, and they do not seek to undermine or intimidate Tony. The complainant made no threat, nor did she look for any response; she simply attempted to tell Tony how she was affected by his behaviour.

Conclusion

The Unfair Dismissals Act provides that the dismissal of an employee is unfair, “unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” Having considered all the evidence and, having regard to all the circumstances, I find that the reasons put forward by the respondent for dismissing the complainant were not justified and were disproportionate to their findings that her e mail was “very inappropriate.” I find also that no consideration was given to the context in which she sent the e mail and the effect on her of the investigation into a previous complaint by the same colleague. It is my view that the failure of the respondent to appoint an independent investigator to examine Tony’s complaint of September 2016 was the starting point of the process that led to the complainant being dismissed.

In conclusion, I return to my role to determine the response of a reasonable employer in these circumstances. In the EAT case of McGee v Beaumont Hospital, UD 136/1984, chairman said that its task is,

“…not to consider what sanctions the Tribunal might impose but whether the reaction of the Respondent and the sanction imposed lay within the range of reasonable responses.”

For the reasons set out, I conclude that the respondent’s findings that the complainant engaged in bullying and harassment was not within the range of reasonable responses and I find that the decision to dismiss her was entirely disproportionate and unfair.

As I have found that the summary dismissal of the complainant was unfair, I decide that the respondent is to pay her compensation of €37,500. This is based on an estimate of her loss of earnings in the two years following her dismissal.

Unfair dismissal, bullying and harassment, sexual harassment