Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Aisling Irish Parker Law Solicitors

Tommy Smyth Tom Smyth & Associates

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00002699

27/05/2024

The Complainant was employed as a Sales Consultant/Brand Manager with the Respondent from 5 January 2004 until she resigned her employment in October 2023.  She enjoyed a salary of €34,303.04 per annum.  The Complainant contended that the Respondent failed or neglected to satisfactorily deal with complaints made by her in relation to bullying and harassment from other employees

The Respondent is an international lingerie brand that operates on a concession basis in a retail outlet in Dublin (hereinafter referred to as the Shop).  The Respondent disputed the complaint. 

General Background

The Complainant outlined that she had worked for the Respondent for in or around 19 years and that during that time she was always a hardworking and diligent employee and that this was reflected in her performance reviews. She outlined that from 2021 onwards there were a number of staffing issues and issues relating to time off that were not addressed and that ultimately led to her resignation.

In her complaint form, the Complainant contended that the Respondent failed and/or neglected to satisfactorily deal with complaints made by her in connection with bullying and harassment from other employees.

The Complainant did not provide any additional information in relation to her dispute under the Industrial Relations Act.

At hearing the Complainant advised that she had provided her line manager with a detailed account of concerns she had in relation to a range of issues regarding the interaction/interface between her and the Shop in an email of 1 June 2023.  She described a phone conversation with the MD where she outlined her concerns more fully and she followed this up with a further email on 28 June 2023 where she summarised her issues of concern as follows:

·       That on numerous times each week she found stock in the stock area, or on a rail in the fitting room, without security tags

·       That almost every time she went into the fitting room, a manager or a security staff member of the Shop followed her in within a couple of minutes.  She advised that this was not happening to others.

·       That every time she went to the stockroom she was watched by management or a manager might follow her in, if she was there for a length of time.  Again, she advised that this was not happening to others

·       That every time she left the floor to go to the bathroom, to get a drink of water or to go to her locker to take medication or to go on her break she believed she was being observed by management/security.

·       That she believed that cctv monitoring was on her and was being used by security to inform management through their WhatsApp group re the above issues

·       That she was having difficulty booking annual leave and had been blocked from the system

She also stated that she had gone to another store while on her break and that the security person there had followed her “in an obvious manner” and faced her, holding his phone and had taken a photograph/video of her.  She posed the question to the Respondent were the Shop security and management sharing information about her with the other store.

The Complainant outlined her sick leave throughout this period which related to a number of conditions, associated with stress and anxiety.

In its submission the Respondent noted the claim under the Industrial Relations Act and confirmed its understanding that the AO can issue a recommendation under the Act.  The Respondent did not provide any other submission or information in relation to this complaint.

At hearing the Respondent advised the following:

·       That on 1 June 2023 emails were exchanged between the Complainant and the MD regarding the Complainant’s frustration with certain work and commercial matters based on a phone conversation of the previous day.

·       That on 5 June the Complainant returned to work from sick leave and made contact regarding some stock issues on 6 June

·       That on 25 June the Complainant left work and ultimately never returned and on 26 June the Complainant obtained a medical certificate for work related stress.

·       That on 27 June the MD had a phone call with the Complainant who alleged that she was being monitored at work, that she was going to seek legal advice and that she had requested CCTV footage from the Shop.  The MD immediately contacted HR at the Shop given that the medical certificate indicated work related stress and arranged a call to discuss the Complainant’s allegations.

·       That on 28 June the Complainant set out her concerns in an email but that they were not the type of detailed allegations that allow an employer to formally investigate other employees.  Nonetheless, the MD continued to raise the matter with HR in the Shop.

·       That on 29 June the MD advised the Complainant that her absence would be paid, despite her 20 days sick pay being used up and let her know that her allegations had been relayed to HR in the Shop.  The Complainant responded and expressed appreciation for the MD’s actions.

·       That on 30 June the MD received an email from the Shop which stated that the Complainant was not being monitored or investigated. The Complainant was also advised that the EAP was available to her and that when she was well again the parties could sit down to discuss all concerns that she might have.

·       That the Complainant never returned to work and remained on medical leave until her resignation.  The Respondent submitted that despite being a member of a trade union and despite having stated that she would seek legal advice she chose not to engage any further in relation to any allegations or grievances.

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

In considering this matter I noted that the Respondent had provided a copy of the Complainant contract which set out the Grievance Procedure as Section 19.  I further noted that the roles listed in that Procedure to whom the Complainant could submit a grievance had not been filled for many years, leaving only the MD available to the Complainant for submission of a grievance.  In circumstances where the Complainant was not satisfied with the MD’s handling of her complaint it was clear she had nowhere left to go. In my view the Respondent had, in effect, dismantled it’s own Grievance Procedure and the arrangements that remained were certainly not in compliance with the requirements of S.I.146 of 2000.

I noted that the Respondent confirmed at hearing that it had no policy, procedure, or other agreement in place with the Shop to set out clearly how matters would be addressed where issues arose involving both parties.  I consider this to be a serious deficiency, as the Complainant, based on her contract of employment was clearly an employee of the Respondent but was operationally accountable to the Shop on a day-to-day basis.  There was no management of the Respondent available to the Complainant in the Shop, or indeed, in the country.  It is not inconceivable that where individuals work together issues of conflict may arise that will require consideration, intervention or investigation.  It should always be clear to those employees what that process will be and it’s clear that this did not exist.  It is evident that in this vacuum, the Respondent sought to make enquiries of the Shop if they were, in fact, monitoring the Complainant.

It is also evident that the Complainant was, at this time, out of work, on a protracted period of sick leave. Despite the protracted nature of the illness and despite the Respondent being advised that the illness was due to work related stress, the Respondent took no steps to refer the Complainant for medical assessment and advice and did not seek medical advice in relation to the Complainant’s fitness to participate in any process to investigate the complaints.

The Respondent confirmed that it made initial enquiries and was then awaiting the return of the Complainant from sick leave before brining all the parties together to sit down and discuss the Complainant’s concerns.

Ultimately, however, the Complainant resigned, and matters were never brought to any conclusion.

I have concluded that the Respondent failed to have appropriate policies and procedures in place to address any grievances the Complainant may have had.  I have also concluded that the Respondent failed to have any policies or procedures in place to address any “inter-employer” grievances that might arise.  In my view this rendered the Respondent unable to provide a clear pathway for addressing the issues raised, other than by way of some type of informal “sit down” or “chat”.  Given the seriousness of the concerns being raised I consider this proposed response to be wholly inadequate.

I have also concluded that the Respondent approach of waiting until the Complainant returned from a protracted sick leave was also unhelpful.  It was open to the Respondent to seek medical advice as to whether the Complainant was fit to engage in a process to address her issues.  Had this been done, notwithstanding the procedural deficiencies, matters might have been addressed and the Complainant might well have returned to work.

In all of the circumstances I have concluded that the Respondent failed to adequately address the Complainant’s complaints of bullying and harassment.

Bullying and harassment procedures