Worker

Employer

Anonymised Parties

An Employee

An Employer

Representatives

Amanda Kane Local Government Management Agency (LGMA)

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

18/02/2020

The employee has worked for the employer since 1982.  The dispute centres around the taking of a photograph at a retirement party.  The employee made a complaint regarding a colleague that he groped her while standing for a photograph at the end of the evening.

The employee submitted that the disciplinary action taken was not proportionate compared to the nature of the intentional behaviour she was subjected to.

The employee submitted that the expectation that she remains in the same work environment as the colleague she complained of was too high.

The employee submitted that her character was attacked during the investigation of the incident.

The employee submitted that all policies and procedures were not followed in that there was not careful monitoring of the workplace and that she was dissatisfied in that the employer offered to destroy the file wherein she claims that her character was attacked – she understood that such files had to be retained for seven years.

The employee is seeking a recommendation that the employee she complained of is transferred and a declaration that the disciplinary action taken was not robust enough.

The employer submitted that the employee’s complaint was investigated by way of an independent disciplinary hearing taken under its Dignity at Work (DAW) policy.  Arising from this it was determined that no formal sanction take place, but the colleague was directed to write a letter of apology to the employee.

The employer submitted that mediation was offered but was declined by the employee, she was also offered the option of a move but declined this too.

The employer submitted that it had not received any further complaints regarding the workplace.

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 touching the employee inappropriately, the employee took a complaint under the Dignity at Work policy.  The complaint was investigated independently.  

The investigation found that the incident did occur and that a witness described it as being a deliberate act.

The investigation found that the witness to the incident was credible, that he had no vested interest in the complaint and that he had no difficulties with either party.  The investigation also found that the person complained of had a lot of drink taken during the event and described himself a “completely disgusted” afterwards.

The investigation concluded that the behaviour complained of had the effect of offending, humiliating and intimidating the worker. I note that physical harassment is described in the employers Dignity at Work policy as including “unwelcome physical contact such as groping, pinching patting, unnecessary touching or brushing against another person’s body”.  I also note that the policy continues “in addition to constitute sexual harassment or harassment under the Employment Equality Act, the behaviour must have the purpose of effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.”

The submission was that a disciplinary hearing occurred and that following that hearing the director of services concluded that there was insufficient evidence from both the investigation report and the disciplinary hearing to determine whether the actions were malicious or accidental.  The director decided that a formal sanction was not appropriate, and the party complained of was asked to issue a formal written apology.

The process lasted from 29 March 2018 when the complaint was made until 8 March 2019 when the outcome was notified to the employee, to resolve.

Having regard to the conclusions above, I recommend that the employer pay the employee the sum of €12,000.  In coming to this recommendation, I am cognisant that the event complained of was found to have happened by an independent investigator.  I am also cognisant of the fact that the investigator found that a witness to the incident described the action as deliberate and that the witness was described as “having no vested interest” or dispute with the parties by the investigator.  I also note that the person complained of admitted that he was “completely disgusted” with himself after the incident.  I further note from the employer’s representative that although the director concluded that the was insufficient evidence from both the investigation report and the disciplinary hearing to determine whether the actions were accidental or malicious, the person complained about was requested to issue a formal written apology as part of the disciplinary process when the process concluded almost a year later.  I note that had this dispute been taken as an employment rights complaint, this award may have been at a higher quantum.

I further recommend that the employee engage with the mediation process offered by the employer to try to resolve any remaining matters and that both parties try to ensure a return to a safe and equitable workplace for all.

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.

Industrial Relations Act – sexual harassment – Dignity at Work – investigation hearing – disciplinary hearing - outcome