Worker

Employer

Anonymised Parties

A Construction Worker

A Contractor

Representatives

Robin McKenna IBEC

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

IR - SC - 00003807

12/02/2025

For the purposes of clarity, the complainant in this case was an agency worker, that being referred to below as the Agency.

He was then deployed to a third-party site (referred to below for reasons of anonymity as AB Construction) under the direction of the respondent in this case from August 29th to October 17th, 2024, as a General Operative (teleporter/store person).

The complainant worked 39.5 hours and was paid €771.156 (gross) per week.

The complainant commenced employment on August 27th, 2024, working as a forklift driver and store man with the respondent.

On October 17th, he went to work as usual at 7 a.m. and worked as normal until 12 p.m.; loading and unloading, organising all the new items that arrived in the stock area without taking a break, as per instructions.

At 12 p.m., there was a break because a barbecue had been organised for all employees. Around 12:30-1:00 p.m. he was invited to the office of the Health and Safety Officer to discuss something urgent.

On the way a colleague asked if he had been inside the site this week or spoken to or met with a specific employee of a third party company. He replied that he had never had any contact with this person.

He was informed that an employee of the third party had filed a complaint, but no details were provided. He was told that it related to sexual harassment and verbal abuse.

He was asked if he had any contact with that person, and he said he had not. Initially, it was claimed that he had approached her inside the site, but he explained that he had not entered the site that week because it was impossible to do so without a supervisor. The H&S officer then asked if he had approached the person in the smoking area, and he responded that he had never seen her there.

The meeting lasted exactly ten minutes, after which he was told to gather his belongings, hand over ID, and wait to be escorted off the premises.

He did ask who had accused him but was not given any concrete answers. He also discovered that his right to confidentiality had been breached, as co-workers were aware of the incident before he was told by the respondent that he would be contacted by the project manager who would provide the necessary explanations, but this did not happen.

He called the Agency, but it could not provide any information either and referred him to the respondent.

The complainant was recruited by an agency and deployed to a third-party site under the direction of the respondent from 29 August to 17 October 2024. While on that site he carried out the duties of a General Operative (teleporter/store person). The complainant was working 39.5 hours and paid €771.156 (gross) per week.

The complainant was redeployed to another site by the agency on 24 October 2025 where he remained until he resigned on 24 January 2025.

The respondent was contracted to work at a Dublin site through AB Construction Ltd. 

On 11 October 2024, the Electrical Foreman emailed the agency seeking to have the complainant replaced due to the quality of his work being. While the agency was in the process of looking for a new site for the complainant, he remained working on the site.

The respondent Project Manager received a call at 11.40am on 17 October 2024 alleging that a female member of AB Construction contract cleaning staff claimed that the complainant had made unacceptable comments directly to her while they were both on site.

The respondent was prevented from speaking with the cleaning operative. AB Construction had advised that the cleaner was upset and had to be sent home from work. There were no witnesses to this incident. AB Construction Ltd, the third-party site owner requested that the complainant be removed from site and that his access/security badge be revoked.

On the day of the alleged incident, while the information that had been provided to the respondent was limited, and in line with standard practice when an alleged incident takes place, the complainant was advised of the allegation and a witness statement was obtained from the complainant, in which he denied that he was the person involved. Another person attended this meeting to assist with translating for the complainant.

The following day, October 18th, 2024, the respondent attempted to get further information on the events of October 17th, 2024, from AB Construction Ltd, without success. On October 19th, 2024, the Project Manager emailed two managers of AB Construction Ltd. requesting further information on the alleged incident, including any video recording to ensure “…this hasn’t been a mistaken identity” No response was received to this request.

The respondent had no other vacancies at the time for the complainant. However, the agency was able to find alternative work for him, which commenced on October 24th, 2024.

On February 6th, 2025, the events of October 2024 involving the complainant were confirmed specifically that. they “…received no clarity or details surrounding the accusation”.

The complaint against the Agency was heard on February 11th, 2025, with a recommendation issued February 19th, 2025. This complaint was submitted on February 12th, 2025.

The respondent did ask the complainant to leave the site on October 17th, 2024, on foot of a request from the third-party site owner. The respondent’s access to client sites is based on client approval and it must comply with requests to revoke the access of its staff and/or contractors when instructed to do so.

While it would always be the practice of the respondent to complete a full and thorough investigation and support the agency in its investigations following such allegations, it was limited in this regard to the information that was forthcoming. it sought information to ensure there was no mistaken identity, but such information was never provided.

The respondent would have redeployed the complainant to another of its sites had a vacancy existed. However, the agency offered him alternative work commencing on October 23rd, 2024, and he commenced working at the new location the following day, one week after leaving the third-party site.

In February 2025, it was confirmed in correspondence with the agency that the respondent would not be opposed to the complainant working at another respondent site.

Neither the respondent nor the agency dismissed the complainant. On foot of the allegation, the complainant ’s site access was withdrawn by the third-party AB Construction. This decision was outside the respondent’s control. However, the respondent had no issue with the complainant working on another of their sites, should a vacancy have been available. Similarly, the agency relocated the complainant one week later.

Regrettably, requests for information and video footage by into the allegation elicited no response.

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

The facts are set out above and are not in dispute.

An allegation in the nature of sexual harassment was made against the complainant by an employee of a third party which was the primary enterprise on the site where the respondent operated, and to which the respondent in this case was contracted to provide services.

The third party revoked the complainant’s right to be on the site, and the respondent says that it had no choice but to send him home.

Despite the complication of the third party role this is a recognisable enough scenario, in which an employer may feel obliged to act to suspend a worker where there has been an allegation of wrongdoing of sufficient gravity and while the matter is investigated.

The first element of the complication is that the respondent was given no choice in the matter and was told it had to get the complainant off its site, and it did so. The respondent was advised that the alleged victim had been very upset and had to be sent home.

But while this may have the appearance of a suspension, there is no evidence that the complainant was actually properly suspended or given any information about whatever process might follow. He was simply sent home.

He complains of having been dismissed, although due to his short service this is not a complaint under the Unfair Dismissals Act.

 In fact, he was not dismissed, and he was re-deployed by the Agency one week later as the respondent did not have alternative employment for him.

To its credit the respondent continued to seek further information on the alleged incident but despite its best efforts no further information on the allegation was forthcoming.

While acknowledging that pressure was applied to the respondent by AB Construction it nonetheless retained certain obligations to the complainant to comply with the requirements of procedural fairness.

In the first instance if he was being suspended this should have followed some process which set out the procedure from that point.

More critically the complainant was sent home and placed on unpaid leave, at that point, not having been found guilty of any wrongdoing.

As noted above while the respondent was put in a difficult position it made procedural errors in the handling of the matter and in sending the complainant home. He was very upset by what he regarded as an unfounded allegation and the lack of clarity about his position compounded this.

Admittedly the position was resolved within a week, but he is nonetheless entitled to a remedy for the breach of his procedural rights as week as for the loss of a week’s wages (€771).

Suspension, fair procedure