ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00027322
Parties:
| Complainant | Respondent |
Anonymised Parties | Retail Assistant | Retail Store |
Representatives | Self represented | Michael McGrath Ibec |
Complaint/Dispute:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Industrial Relations Act | CA-00034990-001 | 03/03/2020 |
Date of Adjudication Hearing: 02/11/2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969following the referral of the complaint/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.
Background:
The worker submitted a referral under the Industrial Act that she had been sexually harassed by a customer and that the employer had failed to investigate the matter leaving her feeling stressed and vulnerable in her employment.
Summary of Worker’s Case:
The worker stated that she had been employed in the store from 1st October 2013. Since November 2019, she experienced sexual harassment from a customer who came into the store a number of times and told her he was watching her and he proceeded to look at her in a manner she found extremely upsetting. He told her he was watching her and he was licking his lips. The worker was so upset she sought legal advice. Following this she wrote a letter to the employer on 21st February 2020. This letter stated that she had reported numerous situations of sexual harassment and it was not dealt with in a professional manner. She stated that she had to take legal advice, and that she did not feel safe in her workplace. She stated that this sexual harassment had caused her mental anguish at work and at home. She sought for the employer to deal with the matter in a swift manner. The worker had been complaining to management, colleagues and the security guard since November 2019. In February 2020, the manager Ms C assured her first of all that the customer would be barred, but later indicated that they did not know how to go about barring him. This led to the worker feeling stressed and she was further upset by having to go to the stockroom whenever the customer came in to the store again, which he did on further occasions following her bringing the matter to management’s attention. The worker went on a period of sick leave and then in October 2021, some 8 months after she brought the matter to management’s attention, secured another job. |
Summary of Employer’s Case:
In November 2019, according to the Claimant’s statements of events, she experienced a customer behaving towards her which made her feel uncomfortable. The Claimant did not report this to her manager at this time. The Claimant informed the security guard on duty about the customer and asked him to take a note of his description in the event of any further incidents in the future. The manager at the time Ms O was alerted to the matter and informed the security guard that he should inform her of any incidents where staff felt harassed by a customer. According to the Claimant’s statement, on 4 December 2019, the customer arrived in store which upset her. When the Claimant could not find the security guard, she left the shop floor to go to her locker. The Claimant again did not mention this incident to management . The Claimant was then out on sick leave for a medical procedure from 7 December 2019 until 6 January 2020. On 15 December 2019, during the claimant’s absence, Ms C was transferred as the new Store Manager. After the Claimant returned to work after sick leave, she came to Ms C’s office to explain the situation with the customer that had been going on before Ms C had started in her role as the new Store Manager. Ms C advised the Claimant that at no time should she feel uncomfortable in work. The Claimant was advised that if she saw the customer or if she felt uncomfortable in any way while in the store that she would be authorised to leave the shop floor to remove herself from the situation and could bring her concerns to a member of management. Ms C emphasised that the Claimant’s wellbeing was the store’s priority. The Claimant agreed with the course of action that would be taken going forward and left the office. There had been no further issues with the matter until 16 January 2020 when the customer returned again and arrived at the cash registers. The Claimant moved off the registers removing herself from the situation which was the agreed course of action with the Store Manager if the Claimant had felt uncomfortable at the store. The Claimant was absent from work from 11 – 21 February 2020 on certified sick leave. On 22 February 2020, Ms Costigan sought advice from a security professional to discuss the issues the Claimant was having with the customer and to seek professional advice on a way to deal with them. He advised Ms C that the incidents with the customer would fall within the company’s boundaries of Right to Admission and suggested that the customer could be refused entry to the store in the future. It was agreed that he would travel to visit the store on 10 March 2020 to discuss the issue further. This was explained to the Claimant who was happy with the conversation and had no further questions. The Claimant then gave Ms C the letter dated 21st February 2020. Upon reading the letter, Ms C paged the Claimant and invited her back to the office where they spoke at length about the issue that had been going on since November with the customer. Ms C advised the claimant that a security specialist would be visiting the store to discuss security concerns in the store on 10 March 2020. She asked the Claimant multiple times was there anything else they could do the help her situation to which she replied ‘no’ each time. Later that day Ms C and the Claimant had another one-to-one conversation and there were no further issues raised. The Claimant was happy the issue would be resolved going forward. Ms C spoke with the store security guard to advise him that the Claimant was not happy to have the customer in store. Ms C advised the security guard that this customer should be refused admission due to inappropriate behaviour towards the Claimant. Ms C instructed the security guard that security was to monitor the individual going forward and that the safety and wellbeing of their colleagues was paramount and that any further instances were to be reported immediately to a member of management. On 24 February 2020, the customer in question entered the store. At this time the security guard had left the podium to do a security walkthrough with the night shift security guard before their changeover that evening. Ms C stood nearby to the Claimant to monitor the situation. The customer did not attempt to engage with the Claimant and left the store a few minutes later. Ms C then spoke with the Claimant to ensure she was ok to which she replied that she was. Ms C advised the claimant that she should contact an Garda Siochana if she felt it was necessary. A response letter to the Claimant’s grievance was sent on the 26 February 2020. This letter re-iterated the conversation they had on 22 February 2020 which was that if the Claimant ever felt uncomfortable at any stage to speak with Ms C or another member of management or security. The Claimant had no questions or issues about the response letter and gave no indication that this was not satisfactory to her. On 28 February 2020 a management meeting was held. Ms C raised the issue that the Claimant was experiencing. Ms C emphasised that all employees were their priority and any issues that were reported were to be followed up on immediately. She then notified the management team of the Security Professional’s upcoming visit on 10 March 2020. On 9 March 2020, a claim form was received from the WRC outlined the claimant’s complaint. On the same day, 9 March 2020, Ms C received an email from the Security Professional to inform her that due to the COVID-19 travel restrictions he would be unable to visit the following day as planned. The Claimant was then absent from the 6 – 9 of March 2020 on certified sick leave. The Claimant returned to work on 10 March 2020 whereupon Ms C carried out a return-to-work meeting. Ms C asked the Claimant was there anything that could be done in store to help the situation and if she was ok to work that day. The Claimant answered that everything was fine and that she was ok to work. On 11 March 2020, Ms C emailed the Security Professional to arrange a phone call to discuss the issues that had arisen in the store as she wanted to ensure she could get professional security advice. The Republic of Ireland went into lockdown in March 2020 where retail stores were closed and unable to operate from 19 March 2020. The Claimant was then on certified sick leave from 4 May 2020 – 2 November 2021. On 16 October 2021 the Claimant contacted Ms C to inform her that she had been offered a new position in another company and that she may be contacted as a reference. On 19 October 2021 the Claimant sent her letter of resignation stating the effective date of resignation as 25 October 2021. Respondent’s Position It is the company position that they have acted at all times appropriately and reasonably towards the claimant. According to the Claimant’s series of events she did not notify management until after the second time the incident had happened a second time meaning that management had not been aware of the issue until 21 November 2019. It appears from the Claimant’s series of events that on multiple occasions the incidents with the customer in question were not reported to management which led them to be unaware of the severity of the impact this customer was having on the Claimants shifts at work. When the new store manager Ms C became aware of these issues the matter was taken with the utmost seriousness and had multiple meetings with the Claimant to ensure she was ok. Ms C sought professional advice from a security expert as she wanted to ensure that all members of staff would be safe and comfortable in the workplace. Once the Claimant submitted her letter to Ms C on 21 February 2020, she received both verbal and written acknowledgement of her concerns. The Respondent informed the Claimant what their next course of action would to resolve the situation. The claimant was advised to contact the Gardai if she felt it was necessary. Importantly, subsequent to the claimant submitting her claim to the WRC she was asked if there was anything else the company could do for her to which she repeatedly replied there was not. The claimant herself informed the company that she was satisfied with the company response after she submitted her claim to the WRC. The COVID-19 pandemic had profound impact on employers in the retail sector which led to the security expert being unable to travel and then the Respondent’s store being shut down for many months. The Claimant herself remained on certified sick leave from when the store re-opened until she resigned with effect from 25 October 2021 meaning she had not returned to the store and therefore could not assess the security situation with the employee during that time. The Claimant chose to find employment elsewhere before returning to the Respondent’s store from her certified sick leave. The Respondent acted in a reasonable manner to the Claimant’s choice and provided her with a certificate of service in a timely manner. As the claimant has moved on voluntarily to another employment, the scope for the resolution of the issue is greatly reduced. It is the clear position of the respondent that they have acted reasonably and supported the claimant when they were appraised of the issues. It is submitted that Respondent carried out their duty of care to the claimant. The Respondent respectfully requests that the Adjudicator find in favour of the respondent. |
Findings and Conclusions:
The worker in this case has stated that she was subjected to sexual harassment from a customer effectively from November 2019 to in or around February 2020. The customer came into the store on a number of occasions and subjected her to behaviour which comes within any of the accepted definitions of sexual harassment. The Employment Equality Acts 1998-2015 define sexual harassment as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which conduct has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person and it is prohibited under the Acts. The worker in this case suffered stress during a prolonged period of time in her employment. I accept that she did report the matter to management and it was not until she lodged a formal complaint on 21st February 2021 that some action was instigated when the ‘Security Professional’ from Head Quarters was consulted. I note that the Professional advised the Manager at the time that the incidents fall within the Company’s boundaries of right to admission. I find that the employer should have acted sooner to address the worker’s appalling situation in which she found herself over a number of months and which led her to seek medical and legal advice. I recommend that the employer offer the worker a compensatory sum of €3,000 in full and final settlement of her dispute and in recognition that the line is now drawn under the matter. |
Recommendation:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
I recommend that the employer offer the worker a compensatory sum of €3,000 in full and final settlement of her dispute and in recognition that the line is now drawn under the matter.
Dated: December 8th 2022
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Industrial Relations Act, Sexual Harassment, compensation. |