Complainant

Respondent

Parties

Katlyn Winston

Rotunda Hospital

Representatives

Cillian McGovern, BL

Mark Comerford, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00056668-001

15/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00056668-002

15/05/2023

The complainant commenced working in the Hospital on January 10th 2022 as a maternity care assistant.  Her job was to assist nurses and midwives in the theatre department of the hospital.  She earned a salary of €31,000.

On May 3rd 2022, when she was getting scrubs ready for a patient’s partner in the reception area of the theatre, a theatre porter put his hands on the complainant’s waist and she felt him brush off her as he passed her.  From here on, I will refer to the porter as “Mr X.”  The complainant complained that she was sexually harassed and she opted for a formal investigation to be conducted in accordance with the hospital’s Dignity at Work Policy.  An investigation commenced in August 2022 and, in December, the investigator concluded that her complaint was well founded.

Arising from this conclusion, a disciplinary investigation was carried out into the conduct of Mr X and, in February 2023, he was issued with a final written warning.  He was moved from his role as a theatre porter to a job as a “pool porter” and he lost his entitlement to a theatre allowance. 

The complainant was absent from work due to sick leave from mid-November 2022.  On February 2nd 2023, she attended a meeting with a HR manager to discuss arrangements for her to return to work and she returned on February 22nd.  The following day, as she was going up a stairway in the hospital, she saw Mr X laughing as he was coming down a separate stairway.  The complainant was distressed by this and she went on sick leave again on February 24th 2023.  She resigned on May 4th.  In her letter of resignation, she claimed that she had no support from management and that her complaint wasn’t taken seriously.  During the investigation into her complaint, the complainant worked in the same department as Mr X and she said that she felt unsafe and vulnerable.  Following the outcome of the investigation, Mr X was moved to a different department, but the complainant saw him on the stairs when she returned to work and she felt unsafe.  She claims that her manager was biased and that her workplace was unbearable and hostile.

In her complaint under the Unfair Dismissals Act 1977, the complainant argues that her resignation was a constructive dismissal, and that she had to leave her job because of the conduct of her employer.  She said that she was never informed about the final written warning issued to Mr X and that she was given no clarity regarding how her workplace would be made safe.  In her complaint under the Employment Equality Act 1998, she claims that she was discriminated against on the ground of her gender, because the hospital provided no clarity regarding what measures were being taken to keep her safe at work.  In this regard, she claims that she was treated less favourably than Mr X, who continued to work in the hospital.

Chronology Leading to the Complainant’s Decision to Resign

Mr McGovern and Mr Comerford both provided comprehensive submissions in advance of the hearing, which assisted me with my understanding of the issues that led to this allegation of discrimination, and to the complainant’s decision to resign from her job.  I wish to briefly summarise that chronology here.

Having commenced employment as a theatre assistant on January 10th 2022, around four months later, on May 3rd, while she was working in the theatre, a porter, Mr X, put his hands on the complainant’s waist as he was passing her.  Her complaint that she was sexually assaulted was subsequently upheld by an independent investigator.  Another employee was present when the incident occurred and, the following day, this employee reported to the theatre manager, CNM Jane Hickey, about what had happened.  The employee also told the complainant that she had reported the incident.  On May 5th, the complainant told Ms Hickey, about what happened.  Ms Hickey had a number of conversations with the complainant, who, on May 17th, submitted her complaint in writing.  Unfortunately, this letter was mislaid. 

On June 1st, the complainant had a meeting with Ms Hickey and Mr Ray Philpott, the services manager with responsibility for the porters.  Mr Philpott went through the Dignity at Work Policy with the complainant and on June 30th, she submitted her complaint in writing again.  In accordance with the Policy, a member of the HR team carried out a preliminary screening of her complaint, and, on July 8th, she was informed that a breach of the Policy could have occurred.  The complainant opted to have the incident formally investigated.

A formal investigation commenced on August 29th 2022.  During the investigation, the complainant worked on night shifts and Mr X worked on days.  The complainant was absent due to illness for a week up to October 30th and, on November 12th, she commenced a long period of sick leave.  Mr X was also absent due to sick leave from September 5th until November 6th 2022, although he attended a remote meeting with the investigators on October 18th.

On December 19th 2022, the independent investigator concluded that the complainant’s allegation of sexual assault was upheld.  In a letter of January 10th 2023, the complainant was informed by Ms Denise McNamara in the HR Department that her line manager would “continue to ensure that you are working in a safe and supportive working environment within Theatre.”  She was also informed that she it wasn’t possible for her to work on an opposite roster to Mr X.  Lastly, the HR manager told her that mandatory Dignity at Work training would be arranged for maternity care assistants and porters.

On February 2nd 2023, accompanied by her SIPTU representative, the complainant attended a meeting with a member of the HR team to discuss accommodations for her to return to work following the outcome of the investigation.  She was informed that Mr X would no longer be assigned to work in the same theatre as her.  On February 3rd, Mr X was issued with a letter permanently removing him from his post in the theatre.  The complainant returned on February 22nd; however, the next day she became upset when she saw Mr X on the stairs chatting and laughing with her line manager.

The complainant went out sick again and, following a review by an occupational health doctor on March 1st, she was assessed as unfit for work.  In her report, the doctor suggested that she was unfit until “she worked where she would not encounter her nemesis.”  On March 30th, she attended a meeting with the assistant director of nursing and the head of HR to discuss accommodations for her return to work.  She was accompanied by her aunt at the meeting and she became uncomfortable with how it was handled and she left.  She resigned on May 4th 2023.

In his submission on behalf of the complainant, Mr McGovern said that she was forced to leave her job because of a lack of support from the hospital.  Despite the independent investigator finding in her favour, Mr McGovern said that the hospital failed to implement recommendations to properly safeguard the complainant, with the result that “she had to work in close proximity to the individual who sexually assaulted her.” 

Mr McGovern referred to s.8 of the Safety, Health and Welfare at Work Act 2005, and the general duty of an employer to ensure, “so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.”  He cited the decision of the High Court in Catherine Hurley v An Post[1], where it was held that “there is a common law duty on an employer to take reasonable precautions for the safety of its employees and not to expose them to a reasonably foreseeable risk of injury.”

Having concluded that she was subjected to sexual harassment, Mr McGovern submitted that her employer failed to address her concerns, particularly given the requirement for her to work in close proximity with the perpetrator after the incident.  This led her to resign from her role, which she contends was reasonable in the circumstances.

Summary of the Evidence of the Complainant

Mr McGovern asked the complainant what she did to try to resolve her complaint about what happened on May 3rd 2022 when she was assaulted by a porter.  She said that she had a few meetings with her manager, CNM Hickey, who told her that she could opt for mediation, or for a local investigation or a formal investigation.  She also met with her colleague, who had reported the incident to Ms Hickey.

Referring to the outcome of the formal investigation and the finding that her complaint was upheld, the complainant said that she “didn’t get recommendations.”  She said that she thought that she would be working in the theatre and that Mr X wouldn’t be.  She said that she was told that she would have to work with him because there weren’t enough theatres to move him.  She said that she was told that she would be safe at work and she thought that this meant that she wouldn’t be working with Mr X and that she wouldn’t see him.

Mr McGovern asked the complainant about the letter sent to her on January 10th 2023 by Ms Denise McNamara in the HR Department.  This is the letter referred to on the penultimate paragraph of page 3 above.  The complainant said that, when she first saw the letter, she thought “it was good,” but then she felt let down.  She said that because her complaint was upheld, she “wouldn’t have to see him.”  She returned to work however, on February 22nd and she said that it was good to be back. 

On February 23rd however, she was coming back from her break around 10.00am and, as she was going up a flight of stairs, she saw Mr X on another staircase.  He was talking to her line manager, Ms Hickey, and he was laughing.  The complainant said that she thought he was laughing at her.  She said that she phoned her grandad and he told her to go to her manager’s office.  She said that she told Ms Hickey that she didn’t expect to see Mr X.  She said that Ms Hickey told her that she could vouch for Mr X and that she and Mr X were joking about something.

The complainant said that she had to go to the assistant director of nursing (ADOM) so that she could be sent home.  She said that she saw Mr X again in the doorway of a coffee area, where she said, he looked at her.  She said that he wouldn’t move and she had to squeeze past.  This made her feel let down again and she didn’t feel safe.  She said that she told him the ADOM how she felt and she asked if she could go home.  She made an appointment with the occupational health doctor.

The complainant referred to a meeting that she attended on March 30th 2023, the purpose of which was to prepare for her return to work.  At the meeting, she was accompanied by her aunt, Ms Catherine Winston, who is a SIPTU representative in the Dublin Airport Authority.  The head of HR attended for the hospital and she was accompanied by a nurse midwife.  At the meeting, the complainant outlined how she was upset when, as she was returning from her break on February 23rd, she saw Mr X on the stairs laughing.  Ms Connolly informed the complainant that she had looked at the CCTV footage of the time and that the incident did not occur as the complainant described it.  The complainant said that she was upset because she wasn’t shown the video in advance of the meeting.  Leaving the meeting, she said that she felt violated and hopeless and she didn’t want to come back.  Although the letter of January 10th had indicated that she would be supported by the hospital, she felt that no action was taken to support her.  She said that, as she left the area where the meeting was held, a security guard followed her and her aunt.

The complainant referred to a conversation with another member of staff on the night shift on November 11th 2022 when the investigation into her complaint was taking place.  She said that she didn’t talk to a lot of people and the person she worked with started to talk to her about her complaint.  This colleague asked her, “What’s the problem?”  She said that her colleague was loud and intimidating and, when she went into the bathroom she banged on the door to get her to speak to her.  The complainant said that, that evening, she went to speak to the assistant director of nursing, Ms Anne Marie Sliney.  She said that she lost trust in her employer and she went to counselling.  She didn’t go back to work in the hospital and she got a job in Lifestyle Sports.  She said however, that her manager there was a man and she didn’t like working with men and she kept her distance from them.  She started a job in Temple Street Children’s Hospital in September 2023.

Mr McGovern asked the complainant why she felt she was discriminated against.  She referred to the meeting on June 1st 2022 with Ms Hickey and Mr Ray Philpott, who is the line manager of Mr X.   She said that, at this meeting, she was brought through the Dignity at Work Policy and the options for dealing with an allegation of sexual harassment.  She said that Mr Philpott told her that Mr X had denied the allegation of sexual assault and he asked her why she wouldn’t consider mediation.  She said that she wouldn’t do mediation because she felt so intimidated.  She didn’t feel safe because Mr X had behaved so aggressively towards her.

When she was asked about the reason she resigned, she said “a bit of everything” and that she tried to talk to people.

Cross-examining of the Complainant

The complainant agreed with Mr Comerford that the incident of sexual assault occurred on May 3rd 2022.  Mr Comerford asked her if she accepted that it was possible that she would meet Mr X in the hospital, as they both worked there.  The complainant replied that they could have been rostered on different shifts.

The complainant remarked that “the investigation was great” and that she felt very supported during it.  She said that the issue is afterwards, when she got no support.  She said, “when I came with complaints, I was shut down.”

Mr Comerford asked the complainant about her reaction to the meeting of March 30th, when she said that she felt violated.  She said that she felt that way because “they had watched the video footage of the stairs.”  She said that she felt that Ms Connolly watched the video because she didn’t believe her.

Mr Comerford referred to the complainant’s email of July 19th 2022 in which she asked if there was video footage of what occurred between her and Mr X on May 3rd.  She replied that she wasn’t sexually harassed on the stairs.  Mr Comerford asked the complainant to confirm that she wasn’t harassed on the stairs and she nodded her affirmation.

Mr Comerford referred to the complainant’s letter of resignation dated May 4th 2023.  In her letter, she claimed that she submitted a grievance about her colleague who, on November 1st 2022, was banging on the bathroom door to get her to talk to her.  Mr Comerford said that the complainant never submitted a formal grievance about this and she did not disagree.

In response to questions from me, the complainant said that she was disappointed that an arrangement could not have been made so that she and Mr X were working separate shifts.  She said that she wasn’t informed if he received any disciplinary sanction and she thinks he should have been dismissed.  On February 23rd 2023, she got a fright and she thought that he was laughing at her.  She said that she resigned because of this incident, and because of the meeting with Ms Sliney.  She said that she felt that she had to work with a man who had sexually harassed her.

The complainant said that she felt that her line manager, Ms Hickey, was biased and that she didn’t believe what had happened.

Concluding her evidence, the complainant said that she is “very nervous of males” and that the situation has “become my whole life.”  She said that she found it hard to speak to HR or to management about her concerns.

Evidence of Ms Catherine Winston

Ms Winston said that she is a SIPTU representative in Dublin Airport and a member of the aviation divisional committee in SIPTU.    

Ms Winston said that the complainant didn’t want her SIPTU representative from the hospital to represent her.  At the meeting on May 30th 2023, Ms Winston said that she was informed that she wasn’t in attendance as a SIPTU representative, but as a member of the complainant’s family.

She said that, when they went into the meeting, she noticed a security officer sitting on a chair in the middle of an open plan area.  When the meeting ended, he followed them out of the room.  Ms Winston said that the complainant was upset and they sat down and the security guard waited and followed them as they were leaving.

Ms Winston said that Ms Connolly reacted to her taking notes and said that she was making her uncomfortable.  She said that her understanding is that the hospital “wouldn’t do anything else about the issue.”  She said that the complainant felt intimidated going to work.

Ms Winston said that she was surprised when the existence of the CCTV footage of the “stairs incident” on February 23rd was brought up.  Ms Connolly said that there was nothing to be seen and she said that she stopped the meeting then.

Ms Winston’s answers to Mr Comerford’s question in cross-examination did not add significantly to her direct evidence.

Response to the Claim of Constructive Dismissal

Mr Comerford referred to the definition of constructive dismissal at s.1(b) of the Unfair Dismissals Act 1977 and the onus on an employee to demonstrate that,

a)       They are entitled to terminate their contract as a result of a breach of contract on the part of their employer or,

b)      The employer has acted so unreasonably that the continuation of the employment was intolerable and it was reasonable for the employee to resign.

Mr Comerford submitted that neither of the above criteria has been met.  In relation to the contractual test, he referred to the seminal decision of the former Employment Appeals Tribunal (EAT) in Conway v Ulster Bank[2].  Similar to the respondent in that case, Mr Comerford said that the hospital did not violate any term of the complainant’s contract or its own policies.  The hospital’s actions were in no manner “a repudiation of the contract of employment” and did not demonstrate “that the respondent no longer intended to be bound by the contract.”  Mr Comerford submitted that no change occurred in the contract to make it “so radically different from what it was before.”

Based on its position that the hospital fulfilled its contractual obligations to the complainant, Mr Comerford argued that the complainant’s resignation fails the contractual test to be considered to be a constructive dismissal.

Considering the test of reasonableness, Mr Comerford referred to the decision of the EAT in McCormack v Dunnes Stores[3] where the reasonableness of the employee’s conduct in resigning was tested alongside the reasonableness of how they were treated by the employer.  In that case, the Tribunal set out its considerations as follows:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his or her employers.  The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make continuation of employment with the particular employer intolerable.” 

It is the hospital’s position that it acted reasonably and fairly in the way it dealt with the complainant’s complaint of sexual assault and that it adhered to its policies and best practice.

Considering the complainant’s conduct, Mr Comerford said that she did not act reasonably by resigning because she did not use the hospital’s grievance procedure to attempt to have her complaints resolved.  This obligation was set out in the decision of the EAT in Travers v MBNA Ireland[4].  Mr Travers’ job was changed in a manner “not in keeping with his contract of employment.”  The Tribunal held however, that, although he initiated his employer’s grievance procedure, he did not exhaust the procedure and he resigned without lodging a final appeal against the outcome of his complaint.  The Tribunal found that he was not constructively dismissed.

The third precedent referred to under this heading was the decision of the EAT in Fitzsimons v Mount Carmel Hospital[5].  Ms Fitzsimons resigned, and, in her letter of resignation, she complained about her manager.  An investigation was conducted and Ms Fitzsimons was invited to return to work, and to set out what provisions would facilitate her return.  She was offered the opportunity to have a mediator facilitate “a harmonious return.”  She rejected these proposals, on the basis that her relationship with her manager had deteriorated so much.  The Tribunal stated that,

“It is regrettable that this final step (of acceptance of the return to work offer) was not taken and the Tribunal finds it was unreasonable for the Applicant not to have seen this process through.  The Employment Appeals Tribunal’s primary function is to ensure that internal workplace procedures are fairly applied to individual employees and there is an onus on employees to engage fully in these procedures where a clear effort is being made to overcome past difficulties.”

In light of this finding, it is the respondent’s case that the complainant’s resignation does not meet the test of reasonableness and cannot be considered to be a constructive dismissal.

Time Limit for Submitting a Complaint of Discrimination

On the form she submitted to the WRC, the complainant said that the latest date on which discrimination occurred was February 24th 2023, the day after she encountered Mr X on the stairs in the hospital.  In the narrative of her complaint, she refers to the incident on May 3rd 2022, which resulted in her complaint and a finding that she was assaulted.  Mr Comerford submitted that, as she submitted this complaint to the WRC on May 15th 2023, she has exceeded the time limit at s.41(6) of the Workplace Relations Act which provides that a complaint must be submitted before the expiry of six months of the incident complained about.

Mr Comerford submitted that, if the incident on the stairs is to be taken as the most recent incident of discrimination, the complainant has failed to identify how this encounter qualifies as an act of discrimination on the grounds of gender and on the basis of sexual harassment.

Before giving any consideration to the complaint of discrimination, I intend to consider the preliminary issue of the time limit.  In his submission, without prejudice to the outcome of this preliminary objection, Mr Comerford set out the hospital’s response to the complaint of discrimination.

Claim of Discrimination on the Gender Ground

Opening the respondent’s position under this heading, Mr Comerford referred to s.6(1) of the Employment Equality Acts which provides that discrimination occurs when a person is treated less favourably than another person based on one of the nine discriminatory grounds.  In the complainant’s case, we are concerned with the gender ground which is set out at s.6(2)(a) as discrimination on the basis that one employee is a woman and the other is a man.

Mr Comerford referred to the requirement for the complainant to show that, based on the primary facts, she was treated less favourably than a man.  In this regard, Mr Comerford referred to the established jurisprudence on the burden of proof in equality cases in the Labour court’s decisions in Teresa Mitchell v Southern Health Board[6] and Margetts v Graham Anthony & Company Limited.[7]  He submitted that, based on the primary facts, the complainant has failed to demonstrate that she was treated less favourably than a man in similar circumstances.  As she has failed to show an inference of discrimination, the burden of proving otherwise does not shift to the hospital.

Mr Comerford submitted that the complainant has not identified another person who, in comparison to her, she can argue she was treated less favourably.  She has provided no evidence of discrimination on the gender ground.  Secondly, Mr Comerford argued that the complainant has failed to establish the existence of gender grounds for how she was treated.

The complainant states that she was discriminated against on the gender ground by a porter.  Following extensive investigation, the hospital concluded that, on the balance of probabilities, an incident of sexual harassment took place.  The hospital then began to put in place preventative measures to ensure that such discrimination did not occur again.  These measures included Dignity at Work training for all support services staff.  In addition, Mr X was subjected to disciplinary procedures due to this allegation against him being upheld.  He was removed permanently from the theatre department to work in another part of the hospital.  The complainant was offered the opportunity to work in a different area of the hospital, however, she declined the offer.

Mr Comerford referred to the hospital’s Dignity at Work Policy.  He submitted that the existence of this policy demonstrates that the hospital took reasonably practicable steps to prevent any employee from acting in a manner which could be construed as harassment.  Therefore, notwithstanding the fact that several of the matters raised by the complainant do not constitute harassment, were it to be found that harassment did occur, Mr Comerford asserted that the hospital is not vicariously liable.

In this context, Mr Comerford referred to s.14A(2) of the Employment Equality Act which provides that,

(2) If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable -

(a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and

(b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim’s employment and, if and so far as any such treatment has occurred, to reverse its effects.

From this, Mr Comerford asserted that the obligation of the employer is to do all that is reasonably practicable in the workplace or in the course of employment.  He cited the conclusions of the Labour Court in A Worker v A Hotel[8], where the Court assessed the defence available to an employer to a claim of sexual harassment:

“This suggests that an employer must be conscious of the possibility of sexual harassment occurring and have in place reasonable measures to prevent its occurrence as well as policies and procedures to deal with such harassment where it is found to have taken place. This requires the employer to show, at a minimum, that a clear anti-harassment or dignity at work policy was in place before the harassment occurred and that the policy was effectively communicated to all employees.”

The hospital is satisfied that the procedures used to address the complainant’s claim were fair and that a thorough investigation was conducted into the allegation and that preventative measures were put in place to prevent any re-occurrence.

Conclusion

Mr Comeford summarised the hospital’s case by stating that,

§  The hospital did not repudiate the complainant’s contract, but operated the employment relationship at all times within the parameters of that contractual relationship.

§  The hospital’s interactions with the complainant were at all times reasonable, but conversely, the complainant’s action by failing to utilise and exhaust the internal grievance procedure was unreasonable on her part.

§  It is the hospital’s position that the complainant was not dismissed, constructively or otherwise.

§  No evidence has been produced that demonstrates that the complainant was discriminated against on the ground of her gender.  As she had not established, on the basic facts, a case of discrimination on the gender ground, and, as she has not established an inference of victimisation or discriminatory dismissal, the hospital’s position is that I must reject her allegation of discrimination.

Evidence of the Complainant’s Line Manager, Clinical Nurse Manager, Jane Hickey

Ms Hickey said that on May 4th 2022, she was informed by a member of the administration staff in the theatre department that something had happened to a theatre assistant.  The admin person didn’t know the complainant’s name and Ms Hickey said that she tried to find out.  Later that day, the admin person told her that the person concerned was the complainant.  Ms Hickey said that she asked the admin person to tell the complainant that she would deal with the issue in the morning.

Ms Hickey said that she went to the office of the general manager in charge of the porters and she informed him that there had been an incident with one of his staff.  The porter was moved to a different department.

Ms Hickey said that she got a copy of the Dignity at Work Policy and she discussed with the head of HR, Ms Connolly, how she should proceed.  Ms Hickey said that the Dignity at Work Policy provides that incidents may be dealt with locally or informally.  The procedure is to guide the person concerned through the policy and, on one occasion, she said that she went through the policy with the complainant word for word.

Ms Hickey said that the complainant was very upset about what had happened and they offered her the option of moving to a different department.  While the porter had been moved to a different department, there was a possibility that the complainant could meet him on a corridor.  When the complainant said that she didn’t want to move, she was changed from days to nights and she was rostered for weekends. 

On February 23rd 2023, Ms Hickey said that she was on the stairwell in the hospital and she happened to meet Mr X, with whom she had what she described as “a general chat.”  She said that she can’t remember what the conversation was about.  She went towards the theatre.  Within seconds, Ms Hickey said that the complainant and Mr X must have passed each other and the complainant came to her office in a very upset state.  Ms Hickey said that she and Mr X shared something that was funny.

Cross-examining of Ms Hickey

In response to questions from Mr McGovern, Ms Hickey said that she didn’t check the CCTV at the time of the incident on May 3rd 2022 or on February 23rd 2023. 

Ms Hickey described the department where the complainant works as a small unit where people work closely together.

Asked by Mr McGovern if she “pushed” the informal route as the best way of dealing with this complaint, Ms Hickey replied that she did not, and that she was advised to ask the complainant to read the policy and to give her time to decide what to do next.

Mr McGovern asked Ms Hickey if sexual harassment is not too serious to be dealt with informally.  She replied that she was trying to see if the complaint could be resolved at a local level.

Mr McGovern asked Ms Hickey if she felt comfortable having Mr X in the environment of the hospital when the outcome of the investigation found that he had sexually assaulted an employee.  Ms Hickey replied that she wasn’t informed about the outcome of the investigation.  She said that if she felt that anyone was under threat, she would do something about it.

Mr McGovern suggested to Ms Hickey that she knew that the complaint of sexual harassment had been upheld.  She replied, “no one told me that it was unsafe to keep that porter in my department.”  She said that she wouldn’t have someone working in her department who was unsafe.  On February 23rd 2023, she said she did not know what the outcome of the investigation was and she didn’t consider that Mr X was a risk to her staff.

Ms Hickey repeated her recollection of meeting Mr X on the stairs on February 23rd 2023.  She said that she was on her way to the theatre and she said hello to him at the door and that words were exchanged and that she and Mr X laughed about something random.

Ms Hickey said that she didn’t see the complainant’s letter of resignation, and that she went from sick leave to resignation without returning to work.  Ms Hickey repeated that she was not informed about the conclusion of the investigation into the complainant’s allegation of sexual assault.  She said that she is sorry that she didn’t feel supported.  She said that several members of the HR department were in touch with her about the complainant.  Three assistant directors of nursing were involved in the case and the complainant was advised to get help from the employee assistance programme.

In response to questions from me, referring back to the incident itself that occurred on May 3rd 2022, Ms Hickey said that a member of her staff told her that a staff member felt very uncomfortable about an incident in the theatre.  The complainant wasn’t at work the following day and Ms Hickey said that she met her a couple of days later.  The complainant told Ms Hickey that the porter touched her as he was passing her to get to the porters’ room.  Ms Hickey said that she told the complainant about the Dignity at Work Policy and the employee assistance programme, although she thinks that the complainant didn’t avail of the employee assistance programme.  She was also offered a neutral person to be a contact person between her and the HR department, but she declined that assistance.

Evidence of the Head of Human Resources and People Development, Ms Joanne Connolly

Ms Connolly said that on May 4th 2022, she spoke to Ms Hickey, the complainant’s line manager, and to Mr Ray Philpott, the head of support services and the line manager of the porter.  She said that she advised Ms Hickey to go through the Dignity at Work Policy with the complainant and to meet her to advise her about the process of making a complaint.

Ms Connolly said that the Dignity at Work Policy is part of the hospital’s induction programme and that mandatory training is delivered on the policy through the HSE’s training portal. 

Ms Connolly said that members of her department were involved in the investigation of the incident on May 3rd 2022 and, in accordance with the Dignity at Work Policy, they offered the complainant the assistance of a support person.

Addressing the issue of the sanction issued to Mr X arising from the outcome of the investigation, Ms Connolly said that he was given a final written warning, permanently removed from working in the theatre and the removal of the theatre allowance.

Ms Connolly said that she met the complainant once, on March 30th 2023, when she had a discussion with her to plan her return to work.

On February 24th 2023, Ms Connolly said that Mr X reported to the HR department that he felt that his workplace was unsafe.  He said that people were talking about him.  He said that he had met the complainant on the stairs and he was worried.  Ms Connolly said that she asked support services for the CCTV of the time that the complainant and Mr X were on the stairs.  She said that, in a two second timeframe, she saw Mr X walking past the complainant.

Ms Connolly referred to a report from the hospital occupational health doctor on March 1st 2023 which indicated that the complainant was unfit for work in her current job and that the employer needed to intervene to resolve the issue.  She said that a lot of people had “reached out” to the complainant and her office again reached out and arranged a meeting for March 30th.  The complainant was accompanied by her aunt, which Ms Connolly said she thought was a bit strange.  Although Ms Winston is a SIPTU representative at Dublin Airport, there are SIPTU shop stewards in the hospital available to support employees at meetings.  When she contacted the SIPTU representative in the hospital, Ms Connolly said that she was informed that Ms Winston was not attending a meeting in the capacity of a shop steward.  Ms Connolly said that she decided to proceed with the meeting with Ms Winston in attendance as a member of the complainant’s family.

Ms Connolly said that she was concerned that, previously, members of the complainant’s family had attended at the hospital and had sent emails and made phone calls and she decided that it was necessary to have a member of the security team available.

Cross-examining of Ms Connolly

Responding to a question about the CCTV footage of the stairs on February 23rd, Ms Connolly said that she brought it up at the meeting to reassure the complainant that she had looked at it to see if anything had happened.  Ms Connolly said that she didn’t share the video, and that she didn’t know that it would be an item on the agenda.  Ms Connolly said that Ms Winston was animated and agitated and the complainant was very upset.  Ms Connolly said that she tried to reassure her that they could sort out what was upsetting her.  She said that Ms Winston “all but dragged” the complainant out of the room.

Ms Connolly said that she wasn’t involved in the disciplinary investigation that followed the finding of sexual assault.  She said that the line manager who conducted the investigation understood the disciplinary options.  In response to Mr McGovern’s question, “does sexual harassment warrant dismissal?” Ms Connolly said, “If there was no remorse, no mitigating circumstances, they would move towards dismissal.”  Ms Connolly said that there was remorse and mitigating circumstances.  She said that she doesn’t recall if Mr X apologised to the complainant and she agreed that an apology would have been useful.

Mr McGovern asked Ms Connolly if she thought it was safe to leave Mr X in employment.  She replied that he was removed from the theatre, and when the allegation was upheld, he was permanently removed from the role he had been in, where he was working with women in a vulnerable situation.  His duties were restricted and he could no longer go to the theatre.  Ms Connolly said that he had less exposure to patients but he still had to interact with employees.

Mr McGovern asked Ms Connolly if, with his right to remain in his job, Mr X had more rights than the complainant?  When a decision was made to keep him in his job with some restrictions, were the rights of Mr X placed ahead of the rights of the complainant?

Ms Connolly said that the hospital tried to put supports in place for the complainant, but that members of her family were obstructive.  She looked for a guarantee that she would never see Mr X.  Mr McGovern said that the complainant doesn’t know what protections were put in place to support her.  Ms Connolly said that the porter’s line manager knew about the conditions that applied to his continued employment and that others who needed to be aware were aware.  She said that the complainant’s line manager, Ms Hickey didn’t have to know, because she worked in the theatre.

Ms Connolly said that many people tried to help the complainant, and she named three assistant directors of nursing who tried to offer her support.  She said that the complainant was frustrated because Mr X wasn’t dismissed.

Mr McGovern suggested that the complainant was treated as less equal compared to Mr X.  Ms Connolly replied that the hospital was ready to discuss options with the complainant.  She disagreed with Mr McGovern that the complainant wasn’t told what sanctions had been put in place in relation to Mr X and she said that members of the HR department communicated with her about how Mr X was dealt with.

At the meeting on March 30th 2023, Ms Connolly said that she told the complainant and her aunt that she accepted the outcome of the investigation into her complaint.  She said that she told her that a stage 4 disciplinary investigation had taken place.  She said that there were numerous communications between the complainant and the occupational health doctor and the HR department.  Ms Connolly said, “every time we tried to meet her, there were obstructions.”

In response to questions from me, Ms Connolly said that Mr X came to speak to the HR department shortly after the “stairs” encounter in February 2023.  He left his job in the hospital in the summer of that year.  He had been working there since 2021.

Ms Connolly said that the complainant’s grandfather came to the hospital and was very aggressive, claiming that his granddaughter had been assaulted.  Her mother phoned a member of staff who works with Ms Hickey.  The hospital received numerous emails from family members.  She said that the HR department never knew who they were communicating with, whether it was the complainant or a relative.

Closing his case for the complainant, Mr McGovern said that she was treated less favourably compared to a man.  Her direct comparator is a man almost twice her age and he suggested that the hospital was happy to have a sexual harasser working there.

Mr McGovern referred to a letter from a HR business partner to the complainant on January 10th 2023, which, he claimed, provided no clarity as to what the outcome from her complaint was and she did not know what was being done to protect her.

While the complainant attended a meeting on March 30th to facilitate her return to work, Mr McGovern claims that she was not told what sanction had been issued to Mr X.

In relation to her complaint that she was constructively dismissed, Mr McGovern said that the conduct of the hospital must be looked at, and that they did not follow their own procedures.  He said that the complainant’s decision satisfies the test of reasonableness.

In relation to her complaint of discrimination, Mr McGovern said that the complainant’s evidence has demonstrated that a man was treated more favourably compare to the manner in which she was treated.

Mr Comerford suggested that the complainant is seeking multiples avenues of redress under two pieces of legislation.  He said that she never raised the February stairs encounter as a grievance.  He asked if it is reasonable to find that, because the complainant saw Mr X laughing, that she should resign? 

Mr Comerford said that the management wanted the complainant to engage with them and to stay in her job.  Their position is that she was not discriminated against.  Mr X was also entitled to fair procedures.  It is the policy of the hospital not to inform employees if disciplinary action results from a complaint.

The Relevant Law

It is the complainant’s case that she was constructively dismissed, meaning that she had to leave her job because of the conduct of her employer.  As Mr Comerford pointed out in his submission, the definition of dismissal at s.1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

[D]ismissal, in relation to an employee means -

the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract without giving prior notice of the termination to the employer…

It is a daunting prospect for any employee, but particularly someone aged 19, to complain to their employer that they have been sexually assaulted.  The investigation process can be harrowing and the outcome, even if the complaint is upheld, doesn’t always bring relief.  In this emotionally fraught scenario, when her complaint was upheld but, with the complainant feeling unable to cope with the prospect of seeing her assailant in the workplace, was it reasonable for her to leave her job and to claim that she was constructively dismissed?

The Reasonableness of the Employee’s Decision to Resign

In her direct evidence, the complainant said that she resigned because of “a bit of everything.”  She said that she didn’t think she would have to work with Mr X and that they should have been rostered on opposite shifts.  In cross-examination, she said that she resigned because she saw Mr X on the stairs on February 23rd 2023 and she thought he was laughing at her.  She said that she thinks that he should have been dismissed.

I have reviewed the submissions associated with this complaint and I have carefully considered the report of the investigation into the complainant’s allegation that she was sexually assaulted on May 3rd 2022.  The investigators concluded that, in breach of her right to work in an environment free from unwanted touching, a male colleague put his hands on her waist.  She did not report the incident herself, but, unknown to her, it was reported to her CNM by another employee. 

The complainant was inexperienced in dealing with workplace conflict.  From the evidence of the hospital’s witnesses, I am satisfied that they made every reasonable attempt to support her and they encouraged her to have the incident dealt with informally, a method provided for in the Dignity at Work Policy.  It is my view that the incident that occurred on May 3rd 2022 when the porter put his hands on the complainant’s waist, was suitable for managing in a less formal way than an investigation by an external consultant.  Section 4.4 of the hospital’s Dignity at Work Policy provides as follows:

“Where the employee is not confident about approaching the alleged perpetrator or where a direct approach has not resolved the matter, s/he should request the intervention of an appropriate supervisor / manager. 

The supervisor / manager will attempt to resolve the matter in an informal low-key and non-confrontational manner by making the alleged perpetrator aware of the effects of his / her behaviour.  Where this does not bring about a satisfactory outcome, the matter may be referred to a manager at a more senior level who will make every effort to resolve the matter between the parties.  This may include the use of mediation.”

The policy goes on to state that, if the matter remains unresolved at the informal stage, a formal investigation will be carried out.  At section 4.2 of the policy, there is a provision for the appointment of a support person, “whose function is to listen, be supportive and outline the options open to the employee.”  It is very unfortunate that the complainant didn’t avail of this support person.  An independent and sympathetic listener may have been able to guide her through the local intervention stage at s.4.4 and her complaint could have been handled more quickly and with a better outcome for her.  I understand from Ms Hickey’s evidence that she read the Dignity at Work Policy to the complainant “word for word” at a meeting on Monday, May 16th 2022, when the complainant was accompanied by a colleague.  It is extremely unfortunate, and frankly, very sad, that the complainant didn’t avail of this support person and the opportunity to have the harassment dealt with without the bureaucracy of a formal investigation.

For any employee, making a complaint about a colleague is a risk.  Apart from the possibility that a complaint may not be upheld – which wasn’t the case here - an employee risks exposure to the disgruntlement and resentment of the perpetrator and his or her colleagues.  Even for a seasoned worker, this is a this is a heavy burden, but, at age 19 and, having been employed in the hospital for just 15 months, it must have been extremely stressful for the complainant.  Even when the investigation was finished and her complaint was upheld, it must have been difficult for the complainant to return to work and to perhaps be perceived as the person who caused trouble for the porter.  It seems to me that the management recognised this when they were encouraging her to avail of a support person and to go the informal route.

The complainant was out sick from February 24th 2023 and the meeting with the head of HR on March 30th was arranged with the purpose of planning for her to come back to work.  I understand that that meeting ended abruptly; however, before she resigned on May 4th, the complainant could have contacted her line manager to discuss the issues that were making her feel uncomfortable at work.  When I asked her what she expected the management to do, the complainant said that she expected Mr X to be dismissed.  While there is no evidence that she ever expressed this to anyone in management, such an outcome is not at the discretion of an employee, even one who has had a complaint of sexual assault upheld.

I have considered the evidence of the complainant’s line manager, Ms Hickey and the head of HR, Ms Connolly.  I am satisfied that they and senior nurses made every reasonable effort to support the complainant and to assist her to return to work and that she didn’t ask for any accommodation that was refused.  Before she resigned, it was incumbent on the complainant to tell her employer what was making her think about leaving her job, so that some more attention could be given to dealing with her distress.

The Tests Required to Establish the Entitlement of An Employee to Claim Constructive Dismissal

We know from the case law regarding constructive dismissal, that for a claim to succeed, a number of tests must be satisfied.  An employee will succeed where he or she can establish that the employer has breached a fundamental aspect of their contract of employment.  It is the complainant’s case that she wasn’t provided with a safe place of work and she grounds this assertion on the fact that Mr X wasn’t dismissed.  It is my view that, in the sanction issued to Mr X of a final written warning, his removal to a different department and the loss of his allowance and the mandatory training that the porters and theatre assistants were required to undertake, the hospital did everything reasonably possible to ensure that a similar incident wouldn’t happen again.  I am satisfied that the hospital was a safe place for the complainant to work and, consistent with the authority provided by the EAT in the Conway v Ulster Bank case (footnote 2), I find that her decision to resign does not meet the repudiation of contract test as she has claimed.

In some instances, employees have successfully made out a case that their employer acted so unreasonably that they could not be expected to remain at work for a minute longer.  However, when the complainant resigned on May 4th 2023, she had been out sick since the end of February, so nothing occurred at work in the previous eight weeks that compelled her to resign.  She had time and space to consider how to deal with the stress she was feeling when she was at work.  She also had the support of the occupational health doctor and the employee assistance programme and she said that she attended counselling.  It is my view that the hospital’s managers treated the complainant with patience, compassion and fairness and her decision to resign cannot be grounded in any complaint of unreasonable treatment on the part of her employer.    

The third test, as set out in the seminal case of Travers V MBNA (footnote 4) which was referred to by Mr Comerford, is that, before reaching a decision to resign and claim constructive dismissal, a complainant must show that they have used the procedures available to address the grievance being complained about.  Before she resigned, the complainant didn’t submit any grievance regarding how she was treated and her statement in her letter of resignation that she “filed a grievance in relation to another member of staff that verbally attacked me during this complaint,” is not supported by the facts.

Findings

Perhaps it was reasonable for the complainant to resign; she was distressed working in the same hospital as the person who had been found to have sexually harassed her.  Any young person in the same circumstances may have done the same thing.  She had been employed for a relatively short time in the hospital and it would not have been difficult for her to find a similar job elsewhere.  To her credit, she said that she is now happily working in another hospital.  While it was reasonable for her to resign, it is my view that she cannot place the responsibility for that decision at the foot of her former employer.  It is my view that, by resigning, the complainant did not act reasonably by not giving her employer a chance to deal with her grievance, and, before exercising her rights under the hospital’s grievance procedure so that her stress could be resolved in a more constructive manner.

In conclusion therefore, based on all the evidence, I find that the complainant has not shown that the conduct of her employer was such that she had no alternative but to leave her job and to claim that she was constructively dismissed.

I have concluded that the complainant has not shown that her employer breached a fundamental term of her contract of employment, or that the management behaved so unreasonably, that she had to resign.  As a result of this finding, I have decided that her complaint under the Unfair Dismissals Act is not well founded.

On the form she submitted to the WRC on May 15th 2023, the complainant claimed that she was discriminated against on February 24th 2023, the day after she encountered Mr X on the stairs in the hospital.  In the narrative of the form, she referred to the incident on May 3rd 2022, which resulted in a finding that she was sexually assaulted.

In her evidence at the hearing, the complainant agreed with Mr Comerford that she was not assaulted on February 24th and, even if she was referring to the incident on the stairs on February 23rd, she has not made an allegation of discriminatory treatment in relation to this.

The incident on May 3rd 2022 occurred more than a year before this complaint was submitted to the WRC.  The provisions for an extension of the time for reasonable cause at s.41(8) of the Workplace Relations Act 2015 and s.77(5)(b) of the Employment Equality Acts do not extend beyond 12 months.

I have concluded that, contrary to the provisions of Section 77(5)(a) and (b) of the Employment Equality Acts, this complaint was submitted outside the statutory time limit.  I decide therefore, that I have no jurisdiction to adjudicate on the complaint.

Sexual assault, constructive dismissal, discrimination on the gender ground, time limit for submitting a complaint