ADJ-00046144 - Workplace Relations Commission Tamara McCann vs Tesco Ireland Limited

• Jurisdiction: Ireland
• Judgment Date: 14 November 2024
• Court: Workplace Relations Commission
• Year: 2024

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00046144

Parties:

	Complainant	Respondent
Parties	Tamara McCann	Tesco Ireland Limited

Representatives Jim Fuery of Mandate Trade Union Niamh Ní Cheallaigh of IBEC

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00056979-001	02/06/2023

Date of Adjudication Hearing: 08/03/2024

Workplace Relations Commission Adjudication Officer: David James Murphy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant is a part-time worker who mostly works weekends for the Respondent retailer. She alleges that in May 2021 she was sexually harassed by a colleague. The Respondent did investigate the matter but determined the complaint was unfounded because there were no witnesses to the incident. The Complainant believes that this was not a well-reasoned finding and appealed. She provided two witnesses. One to her having reported the issue immediately after it occurred and another who alleges that she experienced similar, though less severe behavior from the accused. The Respondent declined to interview these witnesses and still did not uphold the complaint. The Respondent submits that they carried out a thorough investigation and were unable to obtain any independent evidence of the alleged incident. The accused colleague denied having harassed the Complainant.

Summary of Complainant’s Case:

The Complainant’s Union official, Mr Fuery, made written submissions, and the Complainant attended the hearing and gave evidence under affirmation. She outlined in evidence how she had been inappropriately touched by a colleague, X, while at work in an “accidentally on purpose” way. Her evidence was that he was known for this kind of behaviour. A second incident happened not long after. While the same colleague deliberately stood so that his crotch was at her face while she packed items. Afterwards she discussed these incidents with a number of colleagues who told her he was known for this sort of behaviour. She then reported it to her colleague and team leader Ms Magaret O’Connor. She referred her to the duty manager. When the Complainant spoke to him, he tried to dissuade her from doing anything formal and told her that it would be hard to prove and that she could be done for defamation she agreed to le him handle it informally. Around this time X was promoted to team lead. The Complainant was shocked by this turn of events as he was going to be overseeing young women working for the Respondent. She decided to lodge a formal grievance with the company in July 2021. However, she went on sick leave shortly afterwards and the investigation did not get going until May 2022. When she returned to work and the investigation resumed her relationship with her duty manager became strained and he stopped talking to her. When the investigation began, she did ask two other women who she was aware of having been harassed in a similar manner to come forward. They were unwilling to do so, fearing retaliation or the reactions of their partners. Her duty manager disputed her allegation that he had tried to dissuade her from complaining and stated that she hadn’t mentioned the alleged harassment to him when she says she did. X stated he didn’t remember any such interaction. The investigator found that her complaints were unfounded. She then appealed the investigation findings. She sought and obtained a statement from Ms O’Connor and a colleague Y who had since left the company. Ms O’Connor confirmed that the Complainant had complained to her and that she had referred her to the duty manager. Y confirmed that the Complainant had brought the matter up and had told her she had brought it to the duty manager who had tried to dissuade her from taking it further. Y also had also experienced behaviour from X which was similar to what the Complainant had experienced. Mr Gibney who heard the appeal stated that he would not interview these two witnesses but that he was accepting the statements as “bona fide”. Mr Gibney did not overturn the original decision but found that there needed to be some form of engagement between the Complainant and the duty manager to restore the relationship. This never occurred and the Complainant continued to feel ostracised by her duty manager. Ms Margaret O’Connor gave evidence under affirmation. She is the Complainant’s team lead. She remembers clearly the Complainant coming to her and that she asked her who from management was in that day. The Complainant said X was touching her inappropriately. Ms O’Connor rang the duty manager and sent the Complainant up to him. She confirmed that she did not witness the incident itself.

Summary of Respondent’s Case:

The Respondent IBEC rep, Ms Ní Cheallaigh, made written and oral submissions on behalf of the Respondent. Ms Sharon Wallace gave evidence under affirmation regarding the investigation she conducted into the Complainant’s allegations in June 2022. She interviewed both the Complainant and the duty manager and X. She then interviewed the Complainant again because she had some questions around the duty manager’s answers. At this point the CCTV was gone as it is not retained after 28 days. On review of the evidence, she did not believe she could make a finding upholding the allegation. She recommended retraining for the duty manager. Mr Paul Gibney gave evidence under affirmation. He conducted the appeal. He met with both the Complainant and Ms Wallace at the outset to better understand the investigation and appeal. He...