Complainant

Respondent

Anonymised Parties

A Quality Analyst

A Technology Company

Representatives

Hayley Maher DLA Piper

Act

Complaint/Dispute Reference No.

Date of Receipt

Industrial Relations Act

CA-00047564

09/12/2021

The Complaint is employed by the Respondent as a Senior Quality Analyst since 23rd November 2020.  He submitted a complaint to the WRC under the Industrial Relations act alleging that he was subject to bullying and harassment in the workplace and that there was unclear and insufficient cation on the part of the Respondent in relation to those issues.

The Respondent is a technology company who contended that the respondent carried out a full and fair investigation into the complaints made by the Complainant and that they did so with fairness, sensitivity and due respect to both the Complainant and the Accused.  The respondent contended that such investigation was carried out in accordance with their policies and the relevant codes of practice.

The Complaint Form

The Complainant submitted that on Friday 3rd September 2021 at 10.46 am a message was received on a WhatsApp social group.  The group is made up of staff working in the R2 Arabic live team and the sender of the message was a Turkish colleague.  The Complainant submitted that the message was in Turkish but provided the following translation:

“The Arabs of Elin have given brothel policy to all the bar pub nightclubs in our queue, I swear they are hungry”.  The Complainant submitted that the final part of the sentence (I swear they are hungry) meant sexual deprivation.

The Complainant confirmed that the language used was not acceptable to his Arab culture and society and that he believed he had been sexually harassed in the workplace.  The Complainant submitted that he reported the matter to his line manager and to HR and that there were a few meetings to investigate the matter. He confirmed that he had received a report which clarified that the Accused had “pleaded guilty” but that no action was taken by the Respondent.  He submitted that he asked to know what had happened as a consequence of the outcome of the investigation but that he was told that this information was confidential.  At the time of submission of his complaint to the WRC the Complainant submitted that he was still unaware of any action on the part of the Respondent.

The Complainant submitted that in fact matters got worse as there were rumours circulating that the accused was going to get a new position soon and he submitted that the accused is very close to the team managers and that they are all supporting each other.  He submitted that all he wanted to know was what happened to the person who offended and degraded him.  He submitted that, in his view, nothing had happened to her, other than the fact that she is still in employment and expecting to get a new position in the near future.

The Complainant submitted that the matter was having a negative impact on his mental health, that he suffers every time he sees her name.  He submitted that the respondent did not take any action to protect him and his rights as an employee when he was attacked and victimised by such hateful and hostile behaviour.

At hearing the Complainant stated that he had suffered a great deal as a result of the incident, that it had affected his whole life and that after the incident he had become a different person.  He stated that the Respondent didn’t follow a clear procedure when dealing with the matter and that he was treated unfairly. He outlined the sequence of events as set out in his complaint form and he stated that since then the accused had actuall been given the new job.  He advised that he still did not know what had happened to the Accused after she confirmed that she was guilty of having sent the message and he wanted to know why the company had promoted the person who had committed the violation.  He stated that he believed she had been given the position based on loyalty and friendship.

As part of the discussion on the investigation the Complainant confirmed that he understood that an investigation had been undertaken, and that it was what had happened afterwards that was the problem.  He stated that he still did not know if any sanction had been applied to the accused for such a serious breach of his dignity and that it appeared she had actually been rewarded for her behaviour as she had been placed in a higher position.  He stated that he wanted the company to demonstrate that they cared About their employees dignity and he pointed out that he now found himself still working with the Accused, in broadly speaking the same team, same office space, and same working groups, and within the department they remain in the same email and chat groups. He also pointed out that the Respondent had done nothing to support his recovery.

The Respondent submitted that the Complainant is a member of a WhatsApp Group that he had set up for members of the R2 live team and clarified that the R2 live team is the name given to the quality control function supporting Live Product, with different R2 Live teams supporting different markets.  The respondent submitted that the Complainant is a member of the R2 Live Arabic team but that there were different individuals from different R2 Live markets in the WhatsApp group.  The Respondent further submitted that the WhatsApp Group is a social group and is not used for work related content.

In their submission the Respondent confirmed that on 3rd September 2021 at 10.46 am a message was sent by an employee of the Respondent (the Accused) into the WhatsApp Group and that the message was in Turkish.  The message was subsequently deleted by the Accused on foot of a request to do so from another member of the group.

The respondent submitted that the Complainant submitted a complaint relating to the message to his HR Business Partner (HRBP) on 5th September 2021) and that a second complaint was also received.  The respondent submitted that the complainant confirmed his understanding that the message translated as “ The Arabs of Elin have given brothel policy to all the bar, pub, nightclubs in our queue, I swear they are hungry” and that the last sentence described sexual deprivation.  The respondent also submitted that in his complaint the Complainant had outlined the impact of this message on him as a Muslim and that he had pointed out that the accused would fully understand the impact of what she had written as she too is a Muslim.  The respondent submitted that the Complainant subsequently was on sick leave from 6th September 2021 until 10th September 2021.

The Respondent submitted that upon his return to work a lead person from Employee Relations & HR Compliance (ER HRC) and a lead person from Trust & Safety met with him to initiate the investigation into his complaint.  During that investigation the Complainant verified that the message was directed at him and another colleague as they were the only 2 Arabs on the team and he had made a mistake.  The Respondent submitted that the Complainant described his mistake as having tagged a lap dancing club as a red district.

A further meeting was held with the Complainant on 14th September where it was confirmed to him that a full investigation would be conducted under the respondent’s Dignity at Work Policy  and that the investigation would be conducted by the lead person from ERHRC.  The Respondent submitted that it was explained at that meeting that the investigation could be either formal or informal and confirmed that a copy of that policy is contained in the employee handbook which the Complainant received at commencement of employment.

The Respondent submitted that an investigation meeting took place with the Accused on 16th September and a further meeting took place with the Complainant on 17th September.  At that meeting, the Respondent submitted, the complainant accepted that the Respondent would follow an informal investigation process.   The Respondent further submitted that as part of the investigation process they asked another Turkish colleague, who was part of the WhatsApp Group how he would translate the message and that he provided the following translation and information:

“Arabic guys applied brothel policy to our Q for the videos related with nightclubs and I swear they are hungry”.  The respondent submitted that the witness explained that “they are hungry” could have a number of different meanings such as “ that they are looking for women” or “They are looking for women or a sexual relationship”.

The Respondent submitted that the outcome of the investigation was communicated verbally to the Complainant on 27th September and a copy of the written report was also furnished to him on the same day.  That report contained the following finding: that the Accused “has a further case to answer in this regard” and the report went on to recommend “that an independent person is appointed to further explore the matter of concern in line with our internal policies and procedures.”

The Respondent submitted that on foot of that recommendation the matter was further investigated by an independent employee of the Respondent between 6th and 11th October 2021 under the respondent’s Disciplinary Policy and that appropriate action, as determined by the Respondent in line with the relevant policies, was taken.

The respondent set out that the Complainant requested further information in relation to the matter on 16th November 2021 and that the lead person from ERHRC wrote to him advising that “I sent you the outcome on the 27th September. I also talked you through this outcome and explained that the investigation into your complaint was closed.  I explained that any further action taken on the back of the outcome, would not be shared with you as this would be confidential as it is relating to the individual you raised the complaint about.”

The Respondent submitted that there was further interaction between the Complainant and the Respondent in relation to the outcome of the investigation, with the respondent continuing to explain the position that these matters were confidential.  The respondent also submitted that the Complainant attended a virtual training session delivered to employees on 24th November and subsequently lodged their complaint with the Workplace relations Commission on 9th December 2021.

The Respondent pointed out in their submission that

·         they have a Dignity at Work Policy and a Non-Discrimination and Anti-Harassment Policy, both of which were made available to the Complainant and both of which prohibit offensive behaviour and harassment

·         they carried out a full and fair investigation into the complaint and communicated the outcome of that investigation, verbally and in writing, to the Complainant on 27th September 2021.

·         Following a call from the Complainant wherein he indicated that he was suffering from stress information was provided to him about supports available through the Respondent’s Employee Assistance Programme

·         Virtual training on Non-Discrimination and Anti-Harassment was provided to employees on 24th November 2021 and the Complainant attended same

·         In line with the Industrial Relations Act 1990 (Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work) Order 2020 (SI No. 674/2020) (“the Code”) the Respondent communicated to the Complainant verbally and in writing the investigation report on 27th September that the complaint had been upheld.  At the same time the Respondent explained that any further action on the back of the outcome would not be shared with the Complainant. In this regard the Respondent pointed to the following provision within the statutory instrument: “Effective communication of any outcome is critical.  In this regard, employers should ensure that outcomes are communicated sensitively and fairly.  All parties directly involved in the complaint (the complainant(s) and the respondent are entitled to know whether the complaint is upheld in whole or in part , or if is not upheld and the reason(s) why). For the avoidance of doubt, specific details of disciplinary action to be taken against any party are confidential and other parties are not entitled as a matter of course to receive this information as part of the outcome.”

·         This procedure was again explained to the Complainant when he sought further feedback in November 2021

·         The Accused and the Complainant no longer work on the same team as the Accused is no in a new job

The Respondent submitted that the Complainant had stated that he was victimised as a result of his complaint.  The Respondent submitted that this was simply untrue and that at no stage had the Complainant suffered any adverse or other treatment as a reaction to either his initial complaint or his complaint to the WRC.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

Arising from an incident involving a colleague sending a message to a social WhatsApp group, the Complainant brought a complaint to the attention of his line manager and HR and the complaint was investigated by the Respondent.  

I noted that the meeting which took place with the Complainant on 13th September was described as a Preliminary Investigation, the outcome of which was that the respondent wrote to the Complainant to say that arising from their discussions they felt “it is appropriate to investigate your complainant in line with our Dignity at Work Policy”.  I noted that the formal investigation took place and the outcome of that was communicated verbally and in writing on 27th September 2021 to the Complainant.  I further noted that although the investigation was conducted in accordance with the Dignity at Work Policy there were no clear findings contained therein as to whether the behaviour described by the Complainant constituted bullying, harassment or sexual harassment as defined in the policy.  I also noted that the Complainant had described the behaviour of the Accused as being hostile and offensive and I noted that there was no indication in the investigation report as to whether this allegation was upheld.

I reviewed the investigation outcome report at some considerable length and noted that there were a number of occasions throughout the process when the Accused was deemed to have given false information to the investigation, and it was clear that such falsehoods were in her own interests.  I noted the following findings of fact contained in the report:

·         That the translation of the message was broadly in keeping with the translation given by the Complainant

·         That no other example could be identified where a message was put in a language other than English

·         That the Accused had only withdrawn the message at the prompting of another colleague

·         That the message was specifically aimed at the Complainant and another colleague

 While it is not specified that the complainants’ complaint was upheld, it is clear from the above that the details of facts as outlined by him were accepted as truthful by the respondent.  Notwithstanding these findings I have some concern that the investigation made no judgement, based on the policy as to whether the behaviour constituted bullying, harassment or sexual harassment and in my view this should have been included for thoroughness of the investigation.

I noted that the investigation concluded that the investigator believed that the accused “has a further case to answer” and recommended that an independent person be appointed to “further explore” the information gathered as part of the investigation.  This conclusion could not be described to be in keeping with the Code of Practice, as it is abundantly unclear as to whether this is another investigation procedure or consideration of the matter under the Disciplinary Procedure.

Taking all of the above into account I consider that the investigation process did not adequately address the concerns raised or the seriousness of the impact of the behaviours described.

I accept that if a disciplinary sanction was applied that was a confidential matter that could not have been shared with the Complainant.

At hearing I noted the obvious distress of the Complainant as he talked about the insult that the message caused to him and the impact that the event had on him.  I noted, in particular, his evidence in relation to the promotion of the Accused soon after the investigation process and his view that this demonstrated that the respondent had no regard or concern for his safety and wellbeing at work.

I noted, too, the Respondent position when asked about the promotion of the Accused so soon after the investigation process which was :

·         That the interview/promotion process is separate to the investigation process and

·         That it would have been unfair to double penalise the accused by not promoting them

I find this explanation to be without merit.  When an employer wishes to ensure that they maintain a workplace free from bullying, harassment and sexual harassment a number of components need to be in place; there should be clear policies in place that provide clarity in relation to the desired behaviour and which clearly sets out what behaviour is unacceptable, all staff should be made aware of the policies and reminded of the policies and the required behaviour at regular intervals, the policy(i.e.) should contain details of the process for making and addressing complaints and the Respondent must act in accordance with the policy.

In considering what occurred in this instance it is clear that the respondent had all appropriate policies in place.  It is also clear that after the incident training was made available to staff, however, the respondent could not be clear as to whether the Accused had actually attended the training. It seems to me that it would have been of greater importance to ensure that the Accused attend training rather than the Complainant.

Furthermore, in promoting the Accused so soon after she had been found to have behaved in a most unsavoury manner towards a colleague and to have given false testimony to the internal investigation sends out a clear message that such behaviour will be tolerated within the respondent company.  It is my view that the actions of the Respondent in this regard added considerably to the distress of the Complainant and served to make a bad situation worse.

Having regard to the conclusions above, I recommend that the employer pay the employee the sum of €15,000.  In coming to this recommendation, I am cognisant that the event complained of was found to have happened by the internal investigator. I consider that in promoting the Perpetrator so soon after the investigation the Respondent added considerably to the distress of the Complainant and that, at no time did the Perpetrator or the respondent apologise to the Complainant for what occurred.  I note that had this dispute been taken as an employment rights complaint, this award may have been at a higher quantum.

Additionally, I recommend that the employer clarify what the role of the investigation hearing is as compared with that of a disciplinary hearing within its policy and procedures.

Bullying, harassment, sexual harassment