Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

  In person

Kevin Langford Arthur Cox

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001499

29/06/2023

The Worker (herein after referred to as the Worker) commenced employment with the Respondent (herein after referred to as the Employer) on 1st July 2022. Employment ended on 30th December 2022. The Worker was employed as a Channel Operations Administrator – Temp on a fixed term contract for six months.

This complaint was received by the Workplace Relations Commission on 29th June 2023.

In complaints heard under section 13 of the Industrial Relations Act, 1969 the Worker is referred to as the Worker and the Respondent is referred to as the Employer.

As per complaint form the Worker states that she was the subject of sexual harassment in the workplace. The Worker goes onto state that the Employer did not follow the standard procedure in investigating her case and were biased in their comments and decisions.

The Worker states that the behaviour of her work colleague has affected her and this was the major reason for refusing to accept an extension to her fixed term contract. She felt that she could move on from this experience but still feels that the mistreatment experienced still haunts her.

The Worker is seeking damages for the missed job opportunity and emotional distress caused by the inappropriate behaviour of her colleague. She believes her complaint was not given proper attention and should not have dragged on for months, she feels that she has been unprofessionally treated. Her harasser was being protected by management and remains in employment where she feels she had to leave employment due to these incidents.

On the outcome of the investigation the Worker appealed the Employer findings but heard no more from the Employer HR Department.

The Worker has via her complaint form supplied the following timelines:

1.       First incident of sexual harassment – 28th July 2022.

2.       Second incident in the office – 15th September 2022.

3.       HR made aware of incidents – a few days later.

4.       HR arrange a call - 18th October 2022 – Worker was asked to submit a written complaint.

5.       Worker submits written complaint – 25th October 2022.

6.       Worker states she received no further information until one month later.

7.       Worker declined a second fixed term contract – 30th November 2022 – worker informed HR of the reason why she declined the second contract – that she felt she was being watched and also felt unsafe.

8.       First attempt from HR to set up a call – 13th December 2022.

9.       HR investigation call took place on 20th December 2022.

10.   HR sent grievance outcome letter – 23rd December 2022

11.   Worker appeals investigation outcome – 30th December 2022.

12.   Email from Worker to employer re appeal – 29th June 2023 – ignored by Employer.

On 1 July 2022, the Worker commenced employment with the Respondent as a Channel Operations Administrator – Temp, on a six-month fixed-term contract. Her role as Channel Operations Administrator involved collaborating with the Channel Operations Team and liaising with Channel Partners.

In her Complaint Form, the Worker submits that shortly after 15 September 2022, the HR Department of the Respondent was made aware of two alleged incidents of sexual harassment involving the Worker and her colleague, Mr JM. It was alleged that: (a) on 28 July 2022, Mr JM was intoxicated and made inappropriate sexual advances towards the Worker while on a night out with other colleagues; and (b) on 15 September 2022, while preparing for an upcoming work event, the Channel Summit, Mr JM, who was sitting next to the Worker in a group placed a sticker on her leg.

 The Worker submits that she previously notified her Line Manager, Ms JF on 4 August 2022 of Mr JM’s alleged conduct on the night of 28 July 2022, however, she explicitly requested her not to escalate the matter or report it to Human Resources. Following the second incident the matter was subsequently brought to the attention of Ms AG, the then Human Resources Manager of the Respondent in Ireland.

 In the week commencing 3 October 2022, Ms G met with Mr JM to outline the allegations made against him and to enquire as to his version of events. Following the meeting, Ms G requested Mr JM to provide his response to the complaints in writing. Mr JM provided his written statement on 13 October 2022.  In his statement Mr JM accepted that he “was rude, unbecoming and did not act professionally” towards the Worker on the night of 28 July 2022. He also confirmed that he put a sticker on her leg on 15 September 2022. In his statement Mr JM apologised for his unprofessional behaviour and for any upset he may have caused the Worker.

 On 18 October 2022, Ms G met with the Worker. At this meeting the Worker set out the events of 28 July 2022 and 15 September 2022. Following the meeting, Ms G requested the Worker to put her formal complaint in writing. On 25 October 2022, the Worker sent her formal statement to Ms G, which set out her interactions with Mr JM on 28 July 2022 and noted how his behaviour on 15 September 2022 affected her.

 On 17 November 2022, more than one month prior to the expiry of the Worker’s fixed-term contract the Respondent offered to extend the Worker’s contract for a further period of six months on the basis that she would continue to work in the same role under the same terms. The Worker chose not to extend her contract and declined the Respondent’s offer.

On 7 December 2022, Ms G wrote to the Worker, confirming receipt of her written complaint and notifying her that she would write to her shortly requesting that she attend a meeting. Ms G also explained that exceptional circumstances beyond her control had resulted in a delay in dealing with the complaint. (In this regard, Mr JM had been absent from work for a period as he had been sick and in hospital. Additionally, the initiation of the complaint coincided with the Respondent’s Channel Summit Event, which required a lot of attention from the Channel Team members and restricted their availability). Ms G subsequently invited the Worker to attend a Teams meeting on 13 December 2022 to discuss her complaint.

On 8 December 2022, in advance of a further meeting on 14 December 2022 with Mr JM, Ms G provided Mr JM with a copy of the Worker’s written statement. At the meeting, Ms G questioned Mr JM on each of the allegations made against him and he was afforded the opportunity to provide a full response.

On 13 December 2022, the Worker responded to Ms G’s email requesting further information regarding the agenda for the meeting and the questions she would be asked. Initially, the Worker was reluctant to attend the meeting with Ms G. However, following further email correspondence, on 19 December 2022, the Worker agreed to attend a meeting.

On 20 December 2022, Ms G met with the Worker. The Worker was accompanied by a colleague to this meeting. At the meeting Ms G asked the Worker to set out again the details of her interactions with Mr JM. The Worker was afforded the opportunity to give a full and detailed account of the incidents on 28 July 2022 and 15 September 2022. She also set out how they impacted her mentally and at work. When asked by Ms G what outcome she desired from the process, the Worker outlined that she did not “know what to say or comment” as she was leaving the Company.

At the end of the meeting the Worker expressed that she believed the follow-up to her complaint had not been timely and that it had not been dealt with appropriately. She contended that this was due to her age. Ms G noted her comments and acknowledged at the outset of the meeting that every effort had been made to deal with her complaint in a timely manner and within the prescribed timelines but unfortunately, due to exceptional circumstances beyond the Respondent’s control, this was not achieved.

On 22 December 2022, having met with the Worker and Mr JM, Ms G issued a letter titled “Outcome of Investigation of Grievance” (the “Outcome Letter”). Ms G upheld the Worker’s complaints and found that “there has been some evidence of harassment”. The Outcome Letter confirmed that Mr JM would face disciplinary action. The Outcome Letter also outlined that the Worker had the right to appeal its findings within five business days.

The Employer took appropriate disciplinary action in relation to Mr JM which was communicated to him on 22 December 2022.

 On 30 December 2022, the Worker’s last working day with the Respondent, the Worker wrote to Ms G seeking to appeal “some comments from the finding and conclusion” of the Outcome Letter. The Worker’s employment with the Respondent ended the following day and the appeal did not take place.

 SUBMISSIONS OF THE RESPONDENT

In the Complaint Form dated 29 June 2023, the Worker contends the Respondent “did not follow their standard procedure for investigating her case and were biased in their comments and decisions”. The Respondent refutes this claim. The Respondent at all times adhered to best practice in processing the complaint and upheld the principles of natural justice and fair procedures. Specifically, it took the following steps:

(a) The Worker submitted her complaint in writing to the Human Resources Manager, Ms G.

(b) Ms G then provided Mr JM, the person against whom the complaint was made, with a copy of the Worker’s written statement.

(c) The Worker was accompanied by a colleague to her meeting with Ms G.

(d) Mr JM was given an appropriate opportunity to respond to the complaint made.

(e) Ms G, as investigator met separately with both the Worker and Mr JM.

(f) Ms G ensured records of meetings were kept and that statements were circulated with Mr JM.

(g) Following the investigation, the Respondent took appropriate disciplinary action against Mr JM. 

The Employer at all times endeavoured to support the Worker throughout the process and facilitate a fair and objective process. The Worker was a valued employee of the Respondent as is clear from the fact that it sought to extend her fixed term contract. The Worker chose not to accept this offer for her own reasons.

The Employer carried out a full and objective investigation into the grievance raised by the Worker. The Worker alleges that her case was “not given the proper attention, it dragged on for months”. The Respondent rejects this assertion. The Respondent acted promptly to engage with the Worker once it became aware of the alleged incidents. Once the Worker submitted her written complaint, the Respondent initiated an investigation into the alleged incidents.

Unfortunately, due to circumstances outside the Employer’s  control the investigation did not begin immediately, however, this delay was not significant and did not impact on the process or the Worker’s rights. It in no way prejudiced the process undertaken by the Respondent. The total time taken in relation to the Worker’s case, from the date she submitted her written complaint on 25 October 2022, to the issuance of the Report on 20 December 2022, was eight weeks and two days.

 Significantly, the outcome of the investigation was that the Worker’s allegations were upheld. The Respondent found there was evidence of harassment and subsequently took disciplinary action against the person whom the Worker complained of.

SUMMARY

The Respondent engaged with the Worker in respect of her complaints in accordance with its standard procedure.

The Respondent at all times treated the Worker fairly in respect of the complaints process.

The Respondent upheld the Worker’s complaints and took appropriate action thereafter.

The Respondent reserves the right to make further written and oral submissions.

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

Harassment

Harassment is “unwanted conduct” relating to any of the nine grounds of discrimination. Harassment violates one’s dignity and creates an intimidating, degrading, humiliating or offensive environment for the victim.

Some examples of harassment include:

·       Verbal harassment, such as making jokes or derogatory (offensive) comments

·       Written harassment, such as graffiti, text messages, emails, or social media posts

·       Physical harassment, such as shoving or any other assault

·       Intimidating behaviour, such as gestures or threatening poses

·       Visual displays such as posters, emblems or badges

·       Excessive monitoring of work

·       Isolation or exclusion from social activities

·       Unreasonably changing job content or target.

Sexual harassment

Sexual harassment is “unwanted conduct of a sexual nature” that affects dignity at work.

Sexual harassment can include many behaviours, such as:

·       Physical conduct of a sexual nature, including unnecessary touching, brushing against another employee’s body, assault and coercive sexual intercourse

·       Verbal conduct of a sexual nature, including propositions or pressure for sexual contact, continued suggestions for social contact outside the workplace after it has been made clear that such suggestions are unwelcome, suggestive remarks, innuendo or lewd comments.

·       Written conduct of a sexual nature, including emails, text messages or social media posts

·       Other conduct of a sexual nature, for example, whistling, leering, and display of sexually suggestive pictures

·       Gender-based conduct, including derogatory or degrading insults which are gender based (for example, insulting an employee because they are pregnant or transgender).

In the instant case the Worker refers to sexual harassment, the head of human resources, Ms G refers to harassment. Having read the submissions and conducting the hearing into the matter there can be little doubt that we are talking about sexual harassment.

Duration of investigation.

The Worker officially reported the incidents to Ms G in or about the third week in September 2022. The investigation outcome from Ms G was sent to the Worker on 23rd December 2022, a time period in excess of three months, not the eight weeks and two days expressed by the Employer’s representative.

The Worker exercised her right to appeal the investigation outcome, this was done by email dated 30th December 2022. To date she has heard nothing in relation to her appeal being heard. Best Practice would suggest that the appeal be heard and not ignored because the worker is no longer in employment.

Overall, I can understand the Worker’s frustration. This investigation should not have taken a period in excess of three months to complete.

Recommendation.

I have given a high degree of consideration to this complaint and now find in favour of the Worker.

I believe the Worker was the victim of sexual harassment and further believe that the Employer has not managed the investigation process in a timely fashion. In the words of William Ewart Gladstone (1868) ‘Justice delayed is Justice denied’.

I now recommend that the Employer pay compensation of €15,000 to the Worker and that such payment be made within 42 days from the date of this recommendation.

Industrial Relations Act 1969; Sexual Harassment.