Case Number: ADJ-00012695. Workplace Relations Commission

• Docket Number: ADJ-00012695
• Hearing Date: 29 June 2018
• Date: 01 November 2018
• Court: Workplace Relations Commission
• Parties: A Butcher V A Supermarket
• Respondent: A Supermarket

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00012695

Parties:

	Complainant	Respondent
Anonymised Parties	A Butcher	A Supermarket

Representatives Cathy McGrady B.L instructed by Ebrill Solicitors Tom Smyth & Associates, Solicitors

Complaint:

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-00016686-001	09/01/2018

Date of Adjudication Hearing: 29/06/2018

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 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 commenced with the respondent in January 2010 and was employed as a butcher on a wage of €463.71 per week. His employment was terminated on November 10th 2017 following an incident involving a young female co-worker (hereafter ‘C’).

Summary of Respondent’s Case:

The allegation giving rise to the disciplinary action was that the respondent had touched a fifteen year old co-worker on the lower back, but where her skin was exposed. She complained and statements were taken from her and from a witness. This was followed by two investigation meetings at which the complainant was represented by his solicitor. The investigation was into allegations of serious misconduct and sexual harassment, specifically that he had touched her ‘inappropriately’. The complainant was suspended during the investigation which was carried out by the shop owner (“A”). The investigation concluded that disciplinary proceedings were justified, and the notice to the complainant included a warning that the sanction could include dismissal, given its seriousness. The meeting took place on November 6th, 2017 and by letter of November 10th the complainant was dismissed by the shop manager (‘B’). An appeal was provided to an independent third party neutral and the complainant did appeal through his solicitor on November 16th. The third-party neutral upheld the decision to terminate the employment. In conclusion the respondent says that a fair procedure was followed and the decision was that there had been sexual content in the complainant’s actions and sexual intent based on the part of the body which had been touched, the information regarding the process had been shared with the complainant at all stages and he had been legally represented. Accordingly, the dismissal was fair.

Summary of Complainant’s Case:

The complainant accepts that he momentarily touched his co-worker on her bare back with the back of his hand which was cold from working at the butcher’s counter. It was intended as a friendly act and contained no sexual intent. When he learned that she had been upset by it he was shocked and distressed and immediately offered to apologise to her. He was given C’s statement of complaint, and that of a witness on October 24th and he attended an investigation meeting on October 26th. It appears that the matter was then ‘handed over’ to the shop owner and the complainant was invited to a disciplinary hearing. (Around this time twenty-four of his colleagues signed a letter of support for him.) The complainant says that the reason given to suspend him was manifestly irrational, as it was purportedly done ‘to ensure no similar behaviour occurs during the investigation’. The suspension was an indication that dismissal had been already decided as the sanction at an early stage. It is also of note that the complaint made by A had been changed by the respondent to one that the complainant had ‘touched A inappropriately’. The characterisation of the incident as ‘sexual harassment’ is wrong. The definition of sexual harassment in Section 14A of the Employment Equality Act includes a reference to a range of unwanted conduct ‘of a sexual nature’. There is no evidence that the act was of a sexual nature. In addition, it must have had the purpose or effect of ‘violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person’. The complainant says that the act complained of fails to meet any of these criteria. In addition, the reason given for the complainant’s eventual dismissal was gross misconduct, which is not a finding permitted under the respondent‘s disciplinary procedures. It is neither referred to nor defined in the Staff Handbook. The complainant relied on the definition of gross misconduct in DHL Express (Ireland) Ltd v Michael Collins UDD 1738 where the Labour Court followed the decision in Lennon v Bredin M160/1978 and which required; ‘very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category’. The complainant also says that the failure to allow cross examination of the alleged victim of the incident, or the witness...