Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

 Self

Mark Comerford IBEC

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 - 00003422

15/11/2024

The Worker has been employed by the Employer as an analyst since 11th July 2022.

This dispute relates to the Employer’s handling of a complaint of sexual harassment made by the Worker in March 2024. That complaint concerned instances in December 2023 where the Complainant claimed her Team Lead had repeatedly hugged her inappropriately. The complaint was partially upheld following an investigation.

The Worker submitted her complaint to the Employer on 20th March 2024. During the investigation meeting on 5th April 2024, she asked if she would have to remain at her desk in close proximity to her team lead, as she was feeling uncomfortable. She subsequently made a written request for a move on 10th June 2024.

The focus of the Worker’s dispute is that she remained working on the same team as the person she had made a complaint of sexual harassment against throughout the investigation process. She said that no action was taken by the Employer to ensure that she would not have to see him during this time. She felt embarrassed and humiliated as a result of his actions and felt that HR should have taken action on her behalf.

The Worker felt very unsupported and unsafe throughout the process. She was not made aware of the outcome of the disciplinary procedure and said that she was the one who had to seek a move because she no longer wished to work in the same space as the person who sexually harassed her.

She wishes for the Employer to review its policies in relation to sexual harassment and ensure that no one else in the future feels unsupported in the way that she did. She would also like compensation for the 8 days that she had to take off work in order to find her own support and address her mental health needs as a result of this incident and lack of support.

The Employer said that there were policies and procedures in place to deal with situations such as this and those policies and procedures were followed. The Employer said that a move could not be made until the investigation was complete as it could not take any action that may be seen as penalisation pending the outcome of a thorough investigation. It was stated that the investigation was conducted fairly and transparently and concluded on 13th June 2024. The Worker was moved to a different shift on 6th July 2024, but had been reassigned to a different team lead on 10th June 2024.

It stated that there are multiple supports in place for employees who need to avail of them. These include an employee assistance program, of which the worker was always advised of, and a wellness code that could be used for up to an hour a day of wellness time.

The Employer says that the Worker has brought this dispute prematurely to the WRC as internal procedures were not exhausted, contrary to best practice. It is maintained that the Employer acted fairly, consistently, and in accordance with its policies throughout, taking steps to support the Worker and address her concerns.

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

It is clear that the actions of the Worker’s team leader have had a significant and lasting effect on her.

The Employer does have policies and procedures in place in order to deal with this, as is evident by the investigation conducted and the complaint being partially upheld.

In the meeting note dated 5th April 2024, the Worker states that her alleged harasser sits behind her and she is getting more uncomfortable. She asked if she would be at the same desk and the response from the Employer was “we’re hesitant to move you from your desk due to the potential of isolating you from your teammates and friends. We want to ensure you’re not put into any uncomfortable situations but cannot confirm whether moving you from your desk would be the right choice.”

The Worker was clearly asking for assistance in ensuring that she was not in contact with the person who sexually harassed her while the investigation was being conducted and I accept what she said when describing that she felt unsupported throughout the process.

While I also accept that the Employer did not want to take any action that could be construed as penalisation, and that is a very reasonable position, the Worker herself was asking for a solution which would mean she would not have to share the same space as the person who sexually harassed her. This was a reasonable request in the circumstances and I would not view this as penalisation if it was being done specifically at the request of the Worker, which was eventually the case.

However, it is a well-established principle that a worker is expected to exhaust internal grievance procedures before escalating a dispute to the WRC. Both sides should show that they made a genuine effort to resolve the issue internally. The WRC is meant to be a last resort, so workplace procedures should be fully utilised before escalating the matter.

The Worker in this case did not invoke the Employers grievance procedure in relation to the handling of her complaint. S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 addresses the importance of such procedures and sets out that:

Such procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. It is important that procedures of this kind exist and that the purpose, function and terms of such procedures are clearly understood by all concerned.

It is still open to the Worker to raise that grievance internally and provide the Employer with an opportunity to engage with her on the issues she has raised regarding the process. Following the completion of any relevant internal procedures, the Worker may then refer a dispute to the WRC if she remains dissatisfied with the Employer’s response.

As the Worker did not avail of the internal grievance procedure available to her, it is premature at this point to raise this with the WRC. I am not therefore not recommending in her favour in this case.

Requirement to exhaust internal procedures