INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969
SOUTH EASTERN HEALTH BOARD
(REPRESENTED BY THE HEALTH SERVICES EMPLOYERS AGENCY)
- AND -
SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION
Chairman: Ms Owens
Employer Member: Mr Brennan
Worker Member: Mr Rorke
1. Appeal of Rights Commissioner's Recommendation RC42/97 concerning appeal against disciplinary action.
2. The worker concerned commenced employment with the Health Board as an orderly at Wexford General Hospital in 1986. He operates on a roster which involves both day and night work.
On the night duty rota of Sunday 6th/Monday 7th October, 1996 a female worker complained that the worker concerned engaged in actions which seriously offended her and that she had been subjected to sexual harassment by the worker over a period of time (details supplied to the Court).
The Board investigated the complaint. Pending the investigation the worker was suspended from duty with pay.
The Board's investigation concentrated mainly on the events of the night of 6th October, 1996. The Board decided that the worker had sexually harassed the complainant on the night in question and that he was guilty of gross misconduct in the context of its grievance and disciplinary code. The worker was suspended for a further three months without pay with effect from the 20th December, 1996 and he was informed that he would not be considered for night duty on his return to work.
The matter was referred to a Rights Commissioner for investigation and recommendation. On 13th March, 1997 the Rights Commissioner recommended as follows:-
"I therefore recommend that the appeal by SIPTU on behalf of the worker fails, subject to the amendment outlined above regarding the definition, in this case alone, of pay during a period of paid suspension."
The worker was named in the recommendation.
The Rights Commissioner's recommendation was appealed by the Union to the Labour Court on the 7th April, 1997 under Section 13(9) of the Industrial Relations Act, 1969. The Court heard the appeal in Wexford on the 27th May, 1997.
3. 1. SIPTU regards the inclusion of a sexual harassment/bullying clause in all Company/Union agreements as a priority. However, once a complaint has been made, it must be acknowledged that there is no automatic assumption of guilt on the part of the accused.
2. The worker concerned denies the allegations made. He is anxious to avoid accusing the complainant of being untruthful but he is adamant that her account of the alleged incidents is grossly mistaken and misrepresented.
3. For reasons unknown to the worker a story which is basically untrue has been told. The worker is concerned that allegations of this sort seriously damage the reputation of a person both on a personal and professional level.
4. There is no evidence to support the allegations made. In the circumstances the Board has treated the worker unfairly. His removal from night duty will result in an ongoing loss of premium payments.
4. 1. The complainant informed a colleague and two nurses of what happened. Both of these nurses and her colleague confirmed in separate statements that the complainant was very agitated and upset on the night in question.
2. The Board thoroughly investigated the complaint in accordance with all the relevant procedures, including those set out in the Board's policy document "Policy on Sexual Harassment." The Board considered dismissing the worker but decided not to do so because of his previous good record. The Board has taken into account the complainant's statement that her only wish was not to work with the worker concerned again.
3. There was a conflict of evidence between the parties as to when the actual incident occurred. The appellant contended that the incident occurred prior to a visit to the front hall and that the complainant was in great humour after it had happened. While a number of staff members testified to her good form when they saw her in the front hall, the complainant alleged that the incident happened after this visit to the front hall. The investigation did establish conclusively however that from 4 a.m. onwards, the complainant was very agitated and spoke consistently about the incident to people she met from that time.
4. During the investigation the Chief Executive Officer noted that the worker admitted to having engaged in behaviour of a kind which in the view of the CEO was highly suggestive. The Union responded by stating that the activities of the night were more in the area of normal horseplay than serious misbehaviour.
5. The Board is satisfied that the complainant was clearly distressed by the incident and that the conduct of the worker on the night was lewd and suggestive and constituted sexual harassment and that severe disciplinary action was warranted.
In the first instance the Court notes that the parties to this dispute agree that the internal investigation into the alleged incidents was carried out in a proper and thorough manner and in accordance with agreed procedures.
In addition it is agreed that the Rights Commissioner's investigation was exhaustive.
On the basis of the evidence presented, the Court finds that the Rights Commissioner's Recommendation was reasonable and should be upheld.
The Court accordingly rejects the appeal and so decides.
Signed on behalf of the Labour Court
23rd June, 1997______________________
Enquiries concerning this Decision should be addressed to Fran Brennan, Court Secretary.