Worker

Employer

Anonymised Parties

A Pharmacy assistant

A Retail Pharmacy

Representatives

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 - 00002632

15/05/2024

The Complainant commenced employment with the Respondent with on 26 August 2021 as a Pharmacy Assistant.  She contended that she made a complaint to her manager on 15 April 2024 alleging serious harassment by a colleague and that the Respondent had failed to address her complaints and had failed to take steps to protect her safety in the workplace.

The Respondent accepted that the Complainant had brought concerns to attention but submitted that it had made efforts to investigate her complaints.  The Respondent contended that ‘C’ (hereinafter referred to as ‘C’ was absent for a prolonged period due to illness and that as a consequence and through no fault on the part of the Respondent it had not been possible to progress an investigation.  The Respondent also contended that it had offered support and safeguarding options to the Complainant.

The Complainant submitted that she was employed by the Respondent since 26 August 2021 and that she enjoyed a positive working relationship with the employer until the events which led to this complaint. 

In her complaint form she outlined that she made a complaint to her Assistant Manager on 15 April 2024 to advise her that another member of staff had been harassing her and had given her a “really inappropriate” card in work, with a sexual suggestion.  She also advised her Assistant Manager that her colleague had been constantly approaching her in work and messaging her on Instagram.  She advised that she worked in the retail end of the business while the ‘C’ worked in the office and that their paths would not naturally cross in the course of their working day, other than during bathroom or lunch breaks.  She outlined that the ‘C’ had to purposefully approach her as there was no necessity for interaction due to work commitments.

The Complainant further outlined that the Assistant Manager advised that he would meet with her, the Assistant Manager and the Manager on 16 April 2024 to discuss the matter and to devise a plan. She stated that on 16 April she did meet with the Assistant Manager, the Office Manager, and the Manager and that she made them aware of a number of issues that had arisen that she believed constituted harassment at work.  She advised that she told the managers that she had tried to deal with matters informally herself initially, that she had told her colleague that the card he gave her was highly inappropriate and that since then she had been trying to avoid him and that she had asked him to go away any time he approached her. She further advised the managers that anytime he asked if she was free, she responded that she was not and that she did not open his messages on Instagram. 

In her complaint form, the Complainant outlined that she thought her actions would discourage ‘C’ but that it only seemed to encourage him further to approach her with even greater frequency.  She stated that she advised the managers that this was why she had finally brought matters to their attention as she was now very concerned about her safety in work.  She outlined that the Manager proposed they would deal with the matter initially in house by creating new rules where the office staff were to remain in the office at all times unless clocked out for their assigned breaks and that breaks were to be either in the canteen our outside but that under no circumstances were office staff to be in the corridor or stockroom areas. She further outlined that her manager advised her to lock the stockroom door behind her anytime she would go in there so that ‘C’ could not follow her in there.

The Complainant outlined that the Office Manager had noted that she could hear staff in the corridor and that she had noticed that anytime she heard her (the Complainant) she had noticed that ‘C’ would get up and say that he was going for a smoke but that she hadn’t thought anything of it at the time.

The Complainant further outlined that after the meeting she blocked ‘C’ on Instagram so that he could no longer message her and she outlined that on 17 April the Office Manager and the assistant Manager had a meeting with the office staff and advised them of the new rules, and the various stockrooms were locked.

The Complainant submitted that later that evening she brought back a trolley to the stockroom, she keyed in the code to enter, pushed the trolley in in front of her and closed the door.  She submitted that as she did so ‘C’ entered the room behind her and said in a “low monotone and quite confrontational manner” “long time no talk”.  She stated that she “completely freaked out”, put the code in to enter the next room and closed the door behind her.  She stated that she believed him to be annoyed with her for having blocked him on Instagram and for the new rules.  She submitted that she had to stay locked in that room and phoned her manager to come for her.  She submitted that the Manager came straight away, that ‘C’ had left by the time she arrived and that they had decided to escalate the concerns to a higher level.

The Complainant outlined that on 18 April 2024 she wrote out a detailed list of all the incidents she could recall, giving times and dates and emailed this to the Area Manager and the Manager as she had been advised to do.  She submitted that the Manager had advised that she would look up cctv for the relevant dates/times identified.  The Manager had advised her that the new cctv system only retained footage for a 2-month period so it would only be possible to search for recent events.  The Complainant advised that she did not receive a reply to her email.

The Complainant outlined that on 23 April she messaged the Area Manager and asked if she could call her as she had still not received any reply to her email and she stated that the Area Manager phoned her back to say that she had forwarded the email on to the National Manager as she had never dealt with something like that before.  The Area Manager advised that she would ask the National Manager to call the Complainant.

The Complainant outlined that the National Manager did call her that day and set up a meeting for 24 April at 9 am.  At that meeting the National Manager asked if the Complainant wanted to submit a grievance about the issues and that she had indicated that she did want to as the local efforts to set boundaries had simply not been followed by ‘C’.  She also outlined that during the meeting the National Manager had advised that for her safety he would like her to move to another named location, approximately 20 km away while the matters were being sorted. The National Manager had outlined that he would have to meet with ‘C’ to discuss the issues raised and would review the cctv footage available.

The Complainant outlined that on 29 April she went to the other location but that this resulted in a 30-minute journey to and from work versus her normal journey which was 5 minutes.  She submitted that it also felt unfair that she was being moved when the other individual was in no way discommoded. She submitted that on 30 April she emailed the National Manager to advise that she was unable to work in the new location on 1 May as she collects her son from school every Wednesday and she wouldn’t be able to do so given the distance involved.  She advised that she received an out of office reply up to 5 May, so she forwarded the email to the Chief Operations Manager but received no reply.

In her complaint form, the Complainant outlined that on 1st May she called into her original location and met with the Assistant Manager before her shift to advise that she couldn’t attend work as she was feeling very overwhelmed and anxious about being in the same location as ‘C’ and she outlined that she was on annual leave from 6-8 May. She further outlined that when she returned to work on 13 May she was still very anxious about working with her colleague and that on the day the store was short staffed, so she was covering the till.  She stated that ‘C’ approached the till she was covering and queued, and that as soon as she finished with the customer in front of him, she left the till and asked a colleague to take over.  She stated that during the day she saw him in the store walking around and also, that she heard him talking outside the stockroom while she was in there.  She stated that this was all overwhelming for her.

The Complainant outlined that on 14 May she left work early as she could not handle the Anxiety she was feeling in work, that she was in constant “fight or flight mode” anticipating that ‘C’ could appear at any time.  She stated that she explained this to her manager and then left and that she emailed the National Manager to let him know that she could not work in that environment where she did not feel safe.  She submitted that he responded inviting her to a meeting on Wednesday 15 May at 9 am.

The Complainant outlined that when she arrived for the meeting, she asked the Assistant Manager if they could let the National Manager know that she had arrived as she had been told that he was in the office where ‘C’ worked.  She outlined that there was a brief delay but that she did meet with the National Manager and the Area Manager, who took notes of the meeting.  She stated that the first thing the National Manager said to her was that she was not meant to be in work that day.  She stated that she reminded him about the email she had sent and that she could not work there because she did not feel safe.  She outlined that she had to go through all the information she had given at the first meeting with him and her manager on 24th April and added the events of 13 April.  She outlined that the National Manager asked her what her desired outcome would be, and she outlined that she advised the National Manager that ‘C’ was harassing her at work, that in fact she believed it to be sexual harassment, that she considered such action to be gross misconduct and that, in those circumstances she expected his contract to be terminated.   She stated that she also expected that ‘C’ would be placed on suspension while the matter was being investigated so that she would not be afraid to attend work or lose out financially due to not feeling safe at work.

She outlined that the National Manager replied that the company had procedures that would be followed and that the next step was to invite ‘C’ to a meeting and to review cctv footage.  The Complainant outlined that this footage had already been reviewed by him at the meeting on 24 April, so it only remained to review footage from 13 May.  She stated that the National Manager advised that he hoped to contact her by Friday 17 May.  She outlined that after the meeting she sent an email requesting a copy of the notes of the meeting but that by the time of submission of her complaint she had not received any reply or the minutes/notes of the meeting.  She also outlined that she requested a copy of the relevant policies and procedures from the National Manager, copied to the Chief Operations Manager and that she received a reply from the Chief Operations Manager advising her that she could access the policies on ‘my web’ and that they were being update over the coming weeks.  She outlined that she did not have access to ‘my web’ and so she emailed back the Chief operations Manager advising her of that situation and once again received no reply.

In her complaint form, the Complainant listed a series of incidents that she originally brought to the attention of her line manager on 18 April and described what had occurred on each occasion. Of particular note was the content of a valentine card sent by ‘C’ on 14 February 2024 which contained language and innuendo which the Complainant found particularly offensive.  She described an altercation that occurred between her and ‘C’ in relation to the content and how uncomfortable it made her feel.  She further outlined that ‘C’ approached her later the same day asking her to get the card so that he could sign it, as he hadn’t done so.  She stated that she felt “super awkward” and so she got it and gave it back to him.  She stated that he later returned the card signed “Love C”.  In her complaint form she described how ‘C’ sent her a number of Instagram messages between 14 February and 22 February but that she did not open those messages but that when she came to work on 22 February, he approached her in the hallway and asked her to take a picture of the card and send it to him.

As well as additional incidents over the next number of weeks the Complainant described that she received multiple messages on Instagram while she was on 2 weeks leave over the Easter break and that there were further uncomfortable encounters with him upon her return to work and that she was becoming more fearful and anxious.

The Complainant stated that when she advised her line managers, they were very supportive and put measures in place to ensure that office staff would not have access to certain areas.  She stated that she hoped this would resolve matters but that unfortunately that was not the case.

The Complainant provided copies of messages from ‘C’, as well as emails between herself and the Respondent to support her complaints. 

Hearing on 15 July 2024

The Complainant’s evidence at the hearing on 15 July 2024 was consistent with her submission.  She described that she had become increasingly concerned about the behaviour of her colleague ‘C’, that he had sent her the Valentine card with an extremely inappropriate message, that he was constantly approaching her, showing up in areas of the business where he had no business, messaging her on social media.  She stated that she didn’t want to get anyone in trouble but that eventually she had to bring it to attention and that she did so on 14 April.  She initially brought it to the attention of her line manager but that she then met with her manager, the assistant manager and ‘C’s’ manager.  She stated that everyone agreed that he should not be in areas where he was approaching her and so they proposed to re-enforce that office staff should not be present in certain areas.  She stated that she was happy with this arrangement as she didn’t want to get anyone into trouble. 

She described that unfortunately this didn’t work as ‘C’ ignored the instruction and that when she brought the matter to attention of her line manager, she confirmed that the matter would be escalated to the National Manager.  She confirmed that a meeting took place and that she again outlined all the incidents that had occurred.  She stated that he recommended she move to another location for her safety.  She also stated that the National Manager stated that her complaints were not just a grievance but could be considered sexual harassment.

In summary she stated that she was unhappy with how the Respondent had handled matters, that she had been moved to a location that didn’t suit her and her family circumstances, that when she advised that she could not continue with that arrangement she had returned to work and continued to experience anxiety about possible interactions with ‘C’.  she noted that ‘C’ had gone out sick but that even then he had attended the workplace to leave in medical certificates.  She stated that she did not know when he was due to return to work and so she was constantly on edge awaiting his return.

She drew attention to the fact that she had also been on sick leave as a result of the on-going stress and anxiety and that she had lost pay as a consequence.  She stated that she had lost 2 days’ pay. She pointed out that she first raised concerns with the Respondent on 14 April 2024 and that despite formalising that complaint and lodging her complaint with the WRC, by the date of the first hearing in July 2024 the Respondent had yet to even initiate an investigation into her complaints.

Adjournment of Hearing

At hearing, during a break, the parties reached agreement on a number of matters relating to the handling of the complaint.  As a result, the hearing was adjourned for 2 months to allow for progress on implementation.  However, on 25 July 2024 the Complainant wrote to the WRC to confirm that she had resigned her position with the Respondent.  In that context a hearing was reconvened for 15 November 2024 to finalise the matter.

Hearing on 15 November 2024

At hearing on 15 November, the Complainant confirmed that she had resigned her position on 7 August 2024 and that, in that context, there had been little or no progress on implementing the areas of agreement reached between the parties back in July.  She confirmed that she had found alternative employment and she indicated that her trust in the Respondent to provide her with a safe place to work was badly undermined.

She summarised again the issues that gave rise to her complaints, as well as confirming the level of anxiety she suffered as a result of those issues and as a result of the failure of the Respondent to adequately address her complaints.

The Respondent provided a submission in advance of the hearing.

The Respondent submitted that

·        the Complainant’s complaint was escalated to the National Manager on 23 April 2024 and it was addressed with her the following day

·        ‘C’ was on leave until 10th May 2024

·        Upon his return on 13th May the Complainant was contacted and informed that the Respondent would commence an investigation on 15 May 2024

·        In preparation of inviting ‘C’ into a formal meeting for 17 May 2024, the Respondent was notified that ‘C’ had handed in a medical certificate until 8 June 2024

·        Subsequent to 8 June 2024 ‘C’ produced 2 further sick notes from his GP and that continued to be the case up to the date of submission in early July 2024

The Respondent submitted that it was its’ intention to recommence the investigation with ‘C’ upon confirmation of his return and that as a result of his absence the Respondent had not been able to bring this investigation to his attention and proceed any further.

The Respondent submitted the following sequence of events:

15 April 2024      The Complainant met with the Assistant Manager to raise concerns relating to interactions with ‘C’ since 14 February 2024.  The Retail Manager was on leave that day so he confirmed he would address the matter with her upon her return from leave.

16 April 2024      The Retail Manager, Inventory Team Leader and the Assistant Manager met with the Complainant and heard the details of the complaints in relation to interacts since 14 February 2024.  They put in place “rules” where all office staff were to be at their desks, or if clocked out on break, only to be in the canteen and not lingering around retail areas.  The Respondent submitted that the Complainant felt supported in those changes and the Inventory Team Leader held a meeting that afternoon with the office staff regarding the implementation of the new rules.

18 April 2024     The Complainant sent an email to the Area Manager and the Retail Manager with the detailed interactions with ‘C’ from 14 February to 9 April 2024.  The Retail Manager responded by WhatsApp at 3.24 pm on the same day, advising that the Area Manager was on leave and would not be back until Monday 22 April, at which time she would get in touch.

23 April 2024      The Complainant contacted the Area Manager by WhatsApp at 10.27 am asking if she was free for a call.  At 10.31 am the Area Manager called the Complainant.  During that call the Complainant explained what had been happening since February and expressed that most times when she was at the back of the store, either on break or to retrieve stock, ‘C’ was present in the hallway or the stock room.  The Area Manager advised the Complainant that because she had not come across a situation like this before she would escalate the matter to the National Manager.

                              At 10.29 am the Area Manager forwarded the Complainant’s email to the national Manager.

                              At 10.46 am, the National Manager phoned the Complainant and advised her that her email had been escalated to him and that having reviewed her email he first wanted to check in to see how she was doing.  The Complainant responded that she was alright but that she wished it had not gotten to this point and that she had been hoping the issue would just go away.  Th National Manager advised the Complainant that he would be in the store the following day at 9 am to meet with her and to discuss the issues with her in person.  He further advised that she could contact him, the Retail Manager of the Assistant Manager if she needed any support.  He also advised her of the availability of the Employee Assistance Programme.

24 April 2024      The National Manager met with the Complainant with the Retail Manager present as notetaker.  At the outset the National Manager discussed with the Complainant her assertion that she was attending work in an anxious state, and he reminded her that the EAP was available to her for support.  During the meeting the details of the email of 23rd April was discussed and particular attention was paid to the Valentine Card sent by ‘C’ and the comments contained therein.  It was noted that the Complainant no longer had the card in her possession.

                              The Complainant spoke about how, on different occasions, ‘C’ would find an opportunity to approach her, attempting to engage in conversation.  The Complainant described how on each occasion she attempted to keep the interaction to a minimum. The Complainant then described a further interaction on 9 April, and it was confirmed that this had been discussed with the management team on 15 April where rules were put in place to limit the movement of office staff in the retail areas of the store.  The Complainant indicated that she felt safe with the plans in place.

The Complainant had spoken about the interaction which had then taken place on 17 April when ‘C’ followed her into the stock room when he had no reason to be there.  She described that in a panic she put the code in for the fragrance room and then called the Retail Manager to come to the stockroom.  She indicated that she had thought the rules in place from 15 April meeting would stop such interactions occurring.

The National Manager outlined that there were 2 options for addressing such instances; the informal route and the formal route and he clarified what each option involved. The Complainant advised that she believed the formal route to be the appropriate mechanism and the National Manager confirmed that he would organise to commence the process.

The Complainant was asked if she would be more comfortable working in another location while the formal investigation was in process and the Complainant accepted the offer as she stated she didn’t want to be in the same location as ‘C’ while the investigation was ongoing.

After the meeting the National Manager reviewed cctv footage and was able to retrieve many of the dates referred to by the Complainant, however, footage from 14 February was no longer available.  The available footage was downloaded for retention of information.  At that time ‘C’ was off work on sick leave from 10 May 2024 to 13 May 2024.

29 April 2024      The Complainant advised by email that she was unable to work on Monday and Tuesday at the new location as due to the arrangements with her child during her lunch break, she was unable to work at the original location on Wednesday. As the National Manager was on leave until 5 May, the email was sent on to the Chief Operations Officer.  However, she was also on annual leave, both managers had ‘out of office’ messages on their emails but did not have access to their emails while on leave.

13 May 2024      The National Manager phoned the Complainant and advised that ‘C’ had returned to work and so the Respondent would go through the next stages of the procedure.  He advised that he was in Cork for the next 2 days but would meet with her on 15 May.  He confirmed that the rules put in place by local management remained to ensure that ‘C’ would not be in her work location, and he advised that she should update him if anything occurred.  Later that afternoon, the Complainant emailed the National Manager to advise of an incident which occurred at 12.07 pm where ‘C’ had joined the line at the till operated by the Complainant.

14 May 2024      The Complainant emailed the National Manager to advise that she had to leave her shift early due to anxiety and noting that she had seen ‘C’ wandering in the store.  At 1 pm that day the National Manager read the emails sent by the Complainant and responded offering a meeting the following day.  The Complainant accepted the invitation to meet.

15 May 2024      At the start of the meeting the National Manager asked the Complainant if she was rostered to work that day.  The Complainant stated that she couldn’t work due to her anxiety.  The national Manager clarified with the Complainant that he was asking as she hadn’t called in sick or notified the team, she wasn’t working that day as per procedure and so he was unaware she wasn’t working.

                              The National manager explained to the Complainant that in the meeting they would go through each event mentioned in her initial email and then discuss recent key incidents that would be addressed in the meeting that would be scheduled with ‘C’ later that week.

                              The Complainant addressed incidents of 14 and 19 February, 8,9, 16 and 17 April, 13 may and an incident which occurred on an unknown date.  The Complainant was asked what her desired outcome would be, and she mentioned that she would not want anyone to lose their job but would consider that the incident with the valentine card would be considered sexual harassment and that the footage showed that there was harassment.  She stated that this would constitute gross misconduct and that ‘C’s’ employment should be terminated.

                              The National Manager explained that the Respondent does not tolerate any form of harassment and while the investigation process was on-going, the process must be followed to allow all parties to respond to complaints made before an outcome of the investigation is decided.  A discussion took place about possible witnesses to the investigation and the National Manager advised that the cctv footage would be reviewed again.

                              After the meeting the National Manager again preserved relevant cctv footage and confirmed that the matter would be “converted to a sexual harassment investigation” and that the conversation with ‘C’ would proceed accordingly. Later that day the Complainant sought a copy of the minutes from the earlier meeting, but this was not passed on “as part of the investigation process.”  Later again, the Complainant sent a further email requesting a copy of the Respondent policy and procedures and was advised by the Chief Operations Officer that these could be accessed on MyWeb under the HR tab.

16 May 2024      The National Manager was informed by local management that ‘C’ had handed in a sick noted advising that he would be out of work until 8 June 2024.  The national Manager called the Complainant to let her know that @c@ was on sick leave for 2 weeks and that unfortunately this meant that the Respondent would have to pause the investigation.  The National Manager advised that on a positive note this meant that the Complainant would be able to return to her original work location and that the Respondent would address the current work situation with ‘C’ before his return.

The National Manager addressed the Complainant’s query regarding policies, advising her that she could access these on the store computer and that if she was unsure, she could seek assistance from local management.  The National Manager advised that he would keep her updated on the status of ‘C’s’ return to work.

17 May 2024      The Complainant sent a follow up email to the Chief Operations Officer requesting access to the Respondent work portal to retrieve the policies and procedures.  The National Manager responded by email confirming the conversation of the previous day and the Complainant responded with thanks.

7 June 2024        The Retail Manager contacted the Complainant to advise that ‘C’ had provided a further medical certificate until 28 June 2024.

25 June 2024      ‘C’ attended the store to deliver a further medical certificate up until 19 July 2024.  The National Manager was in store and met with him and queried his prolonged absence.  ‘C’ advised that he was off work due to his “health reasons”.  Three attempts were made to contact the Complainant that day but to no avail.  The Complainant was on leave.

28 June 2024      Advice was sought regarding ‘C’s’ prolonged absence from work and it was advised that he be sent an invitation to attend a “welfare check”.  It was further advised that the investigation be brought to his attention and to confirm if he was fit to engage on this matter while on sick leave.  An invitation was sent to ‘C’ for a meeting scheduled for 1 July 2024.

1 July 2024          A meeting took place with the Complainant to advise her that ‘C’ would not be at work until 18 July.  During that meeting the Complainant advised that she had been anxious, not knowing if he would be in work and so she was advised that the Respondent would keep her updated in relation to any changes to his absence. The Complainant was again offered EAP services and asked if she wanted to speak to somebody outside the business.  The Complainant mentioned that she had looked into it but that it was too much information.  The Complainant was offered support to access the correct information.

                              The National Manager met with ‘C’ via a Microsoft Teams call.  During the call ‘C’ advised that he had been off work due to personal health reasons and that it was recommended by his doctor for this length of absence.  The National Manager raised the fact that the Respondent had received serious allegations that involved him that is now part of an investigation.  ‘C’ was asked about his fitness to participate I that process and he agreed that he would be able to do so.  The National Manager requested that he provide a letter from his GP to confirm that he would be fit to engage in that process.

The Respondent provided copies of all documents, and records of all WhatsApp and phone calls referred to in their submission

Hearing on 15 July 2024

The Respondent outlined that when the matter was brought to attention a meeting was held with the Complainant on the very next day.  The Respondent confirmed that the Complainant’s account of how the matter had been handled was accurate but that it had proved impossible to establish an investigation as ‘C’ had been out on sick leave for much of the time and remained on sick leave at the date of hearing.

The Respondent outlined the following sequence of events:

·        that the Complainant had been sent to another location on a temporary basis as a protective measure pending the investigation

·        That ‘C’ was on sick leave from 24 April and that he only returned to work on 13 May

·        That the Complainant had to leave work early on 14 May but that the National Manager had not been fully informed of the circumstances

·        That a meeting took place with the Complainant on 15 May 

·        That at that meeting the Complainant had an opportunity to outline her concerns in detail and to confirm her desired outcome

·        That it was confirmed to the Complainant that a meeting would take place with ‘C’ to advise him of the complaints, that cctv would be reviewed and that it was accepted that the complaints were not viewed by the Respondent as a grievance but rather as a complaint of sexual harassment.

The Respondent further outlined that before the above plans could be actioned ‘C’ went out on sick leave again and remained on sick leave, providing medical certification for a number of weeks at a time.  The Respondent confirmed that it did not have a clear sense of a return-to-work arrangement or plan.

The Respondent confirmed that it met with ‘C’ when he attended the workplace to provide a medical certificate and that ‘C’ was invited to a welfare meeting, in addition to which he was to be alerted to the fact that a complaint had been received.  The Respondent also wished to establish if ‘C’ was fit to engage in an investigation process.  ‘C’ was given notice of the meeting and he did confirm that he was willing to engage on the matter.  The Respondent confirmed that at the meeting ‘C’ was asked to provide confirmation from his GP that he was fit to participate in the investigation process.  The Respondent confirmed that, despite reminders, ‘C’ had failed to provide the medical certification sought.

In response to questions from this Adjudication Officer the Respondent confirmed that ‘C’ had not been sent to the company medical adviser(s) throughout his absence nor to establish his fitness to participate in a process to address the complaints made.

Adjournment of Hearing

As outlined above at hearing, during a break, the parties reached agreement on a number of matters relating to the handling of the complaint.  As a result, the hearing was adjourned for 2 months to allow for progress on implementation.  However, the Complainant wrote to the WRC to confirm that she had resigned her position with the Respondent.  In that context a hearing was reconvened for 15 November 2024 to finalise the matter.

Hearing on 15 November

At the hearing on 15 November the Respondent expressed regret that the Complainant had resigned her position and confirmed that prior to these issues arising there had been a very positive working relationship between the Complainant and members of management.  The Respondent reiterated that it had not proven possible to address the complaints as they and the Complainant would have wished in view of the fact that ‘C’ was on extended sick leave and remained so as at the date of the November hearing.

The Respondent clarified the timelines of the notification of the complaints and of ‘C’s’ sick leave at the request of the Adjudication Officer as follows:

·        That the complaint was first brought to the attention of the Area Manager on 18 April 2024 but that she was on annual leave at that time

·        That she spoke to the Complainant on her first day back at work and advised that she would refer the matter on to the National Manager

·        That the National Manager met with the Complainant the next day (23rd April)

·        That ‘C’ was out sick for 1 day on 22 April but that he went out sick again on 24 April and remained on sick leave until 13 May

·        That the Complainant lodged her complaint with the WRC on 15 May and that ‘C’ went out sick again on 16 May and remained on sick leave as at the date of the November hearing.

The Respondent further confirmed that he had not met with ’C’ on 23 April to advise him of the complaint.

The Respondent submitted that in the context of the above timeline it was clear that it could not reasonably have conducted an investigation in all the circumstances.

I have considered carefully the documentation provided by the parties and the information given at hearing.  I have not taken into account documentation provided by the Complainant in advance of the second hearing as it relates to matters that occurred after the date of submission of the complaint.  I clarified this with the parties at the second hearing.

The facts that gave rise to this complaint, as outlined by the Complainant are not disputed by the Respondent.  Essentially this case is about whether or not the Respondent acted appropriately in response to concerns raised by the Complainant.

In that context, I will consider how the Respondent address the complaint across 2 stages:

·        The informal procedure

·        The Formal Procedure

The Informal Procedure

I noted that the Complainant first brought her concerns to the attention of her line manager and that at the initial meeting to discuss her issues of concern it was agreed to out arrangements in place to restrict all office staff entering certain areas.  I noted that the Complainant felt satisfied with this arrangement initially.  However, I was concerned that the Respondent did not advise the Complainant of her entitlements under the policy and did not propose any direct conversation with ‘C’ about his alleged behaviour.  It is my view that the Respondent immediately opted for addressing matters in a “work around” rather than any appropriate informal intervention.  I consider that the Respondent response in the first instance was entirely inadequate.  In fact the Respondent missed an opportunity to at least commence addressing issues with ‘c’ as he ended up out of work on sick leave for a prolonged period soon after.

It was plain that within a day that “work around” had completely failed to address the situation.

The Formal Procedure

I noted that when the “rules” introduced to restrict office staff did not work and when the Complainant sought further intervention there was general acceptance that the matters being raised were sexual harassment and harassment allegations and therefore were potentially serious misconduct issues.  I noted that local management and area management by their own admission felt unable to deal with such matters and escalated this to the National Manager.

I noted that the Complainant put her concerns in writing to the Area Manager on 18 April and as a result of annual leave and feeling unable to address the issue there was no substantial action in relation to the complaint until the National Manager met with the Complainant on 24 April and I further noted that by that time ‘C’ was on sick leave and remained on sick leave until 13 May.  It is noteworthy that at that meeting, for the protection of the Complainant it was proposed that she would move to another store and while I accept that the intention behind this was good, it is always concerning when a person making such serious allegations is moved.  There was no suggestion that any alternative protective measures were considered at that time.

I noted that these arrangements ended up being unworkable and that the Complainant had to return to her original work location.  Again, I noted that other than the original “rules” that had already been shown not to have worked; no other protective measures were put in place.  I noted that between that time and the date of first hearing ‘C’ was free to attend the workplace to hand deliver medical certificates and was free to attend work with no prior notice.  In addition, I noted the further incidents that are alleged to have occurred and that each of those allegations were put in writing to the Respondent.  I noted that no additional protective measures were ever considered by the Respondent.

In relation to commencing the investigation I noted that the Respondent relied upon the fact that ‘C’ was out of work on sick leave for a protracted period of time and I acknowledge that this posed some difficulty for the Respondent.  However, at the time of the first hearing, the complaints having been with the Respondent for 103 days and ‘C’ having been on sick leave for 83 of those days I noted that the Respondent had never proposed sending ‘C’ to their own Occupational Health provider for assessment to establish his fitness to participate in an investigation.

Taking all of the above into account I must conclude that the Complainants complaint was not appropriately addressed by the Respondent and her safety and welfare at work was not adequately protected by the Respondent and therefore I conclude that her complaint is well founded.