Worker

Employer

Anonymised Parties

A driver

A transport company

Representatives

A co-worker

Michael McGrath IBEC

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 - 00003320

23/10/2024

This hearing first took place on 14th February 2025. On that occasion, there was some dispute in relation to the roles of those present. In particular, whether the Worker could have two representatives, or whether one attendee was a representative and one attendee was there as a witness. The Adjudication Officer asked for clarity on the roles of those attending, and one representative was identified as appearing on behalf of the Worker, together with a witness who would be attending to provide information in relation to her dispute.

At the resumed hearing on 4th June, 2025, the Adjudication Officer asked all witnesses, for both the Worker and the Employer, to wait outside the hearing room until it was necessary for them to attend to provide their information. The witness attending for the Worker objected to this course of action, but no objections were raised by the Worker, her representative, the Employer or its representative. The witnesses for both the Worker and the Employer left the room and neither were asked to return by either the Worker or the Employer throughout the hearing. The Adjudication Officer enquired with both parties towards the conclusion of the hearing whether they wished to offer further information from the witnesses who had attended and neither party availed of this opportunity.

The dispute relates to the Employer’s handling of a complaint regarding a sexual assault which took place outside of the work environment.

The Worker’s complaint form states that she brought this case under bullying and harassment procedures. She described how she had been sexually assaulted outside of work by a colleague and had raised this distressing issue with her union representative and, subsequently, with the Employer. In her complaint form, she states that she was told by both her union and her Employer not to go to the Gardaí, that this would be dealt with internally, but she feels that it was covered up. She says that she was pressured to sign a non-disclosure agreement and instructed not to discuss it any further with anyone.  She said she felt totally unsupported by her Employer after the cover up and, at the time, felt that the company was trying to get rid of her.

An issue arose in relation to an attempted dismissal following a test, but this issue had been separately resolved by the time of the resumed hearing.

The Worker says that the Employer was negligent in its duty of care to her and this resulted in a nervous breakdown. She felt her employer had attempted to cover up this assault and instead of dealing with it internally, she should have been advised to go to the Gardaí. She said that she asked for a formal investigation but was pressured to sign a non-disclosure agreement by the investigator and the union. She was told that if she signed, it would be better and they would like for her to sign it. When it was first suggested, she didn’t want to sign it and was told she would “want to be careful”. She says that she was discouraged from going to the Gardaí.

At the hearing, the Worker’s representative criticised the approach to conduct any kind of a procedure under the policies then in existence in the workplace. He said that the Worker should have been told that this was not a work-related issue, it should not have been dealt with in work, and the Worker should have been advised to go straight to the Gardaí. He said that the wording had been changed from sexual assault to “inappropriate touching” by the Employer, which was wholly inappropriate and was an attempt to minimise the incident.

The Worker’s representative identified several clauses in the Employee Handbook which he says were breached as a result of this course of action. One clause relates to not engaging or being involved with any activity outside the company that would impair capacity to perform work satisfactorily and another clause addresses ensuring that at all times the company will act in accordance with the law, fulfil all appropriate regulatory, policy and procedural obligations and ensure the company follows prudent fiduciary and financial practices. The Worker’s representative stated that these clauses had been breached. The Employer accepted responsibility to take on dealing with this assault, but it should have reported the matter to the relevant authorities instead. It was stated that it was the responsibility of the Employer to report this matter to the Gardaí. A crime had been reported and the Employer took it on themselves to deal with it instead of reporting it. There is an obligation on any employer to make that report to Gardaí. Instead, the Employer mishandled the Worker’s complaint by dealing with it under the Dignity and Respect policy.

Of the process that was conducted by the Employer, the Worker’s representative also questioned the bona fides and expertise of the person who carried out the investigation.

The Worker has been out of work for some time and was seeking a return to work as well as compensation for physical stress and damages.

The Employer states that the Worker brought a complaint forward and chose to proceed with it under the company’s Dignity and Respect Policy. She chose an informal process from the available options and as she did not progress it to a formal stage, she has failed to exhaust internal procedures such that the Adjudication Officer should deem the matter to be one that should not be the subject of an investigation.

The Employer says that the Worker brought this matter to the attention of a Manager who referred it to the human resources section. A meeting was held between the Employer, the Worker and her union representative at which she was encouraged to contact An Garda Síochána if she felt she needed to. She was provided with a copy of the Dignity and Respect Policy and the options available to her were explained. She was advised to take a few days to think about how she would like to progress her complaint. She was also given details of the company’s employee assistance programme.

On 19th March 2024, the Worker emailed her Employer to advise that she wanted to have her complaint dealt with through the Dignity and Respect procedure. Following a phone call, the Employer confirmed that the Worker was proceeding under the “secondary informal procedure”. On 28th March 2024 the Worker submitted her complaint. An independent investigator was appointed to investigate the complaint. After meeting with the Worker and the other employee involved in the incident, a draft agreement was circulated by the investigator to both parties. It contained a standard confidentiality statement. The Worker emailed to ask questions about the confidentiality statement and, after being assured that it would not affect any communication with An Garda Síochána or her family and friends, she signed the agreement. The agreement set out a list of behaviours which would enable the parties “to return to a positive working environment without inappropriate behaviour being a concern for them.”

The Employer says that this was an independent investigation which was paid for by the company. It rejects the Worker’s contention that she was pressured to sign a non-disclosure agreement and says that this was an agreement regarding future interactions with a colleague, which was formulated and agreed within the external process.

The Employer also said that as the Worker had brought her complaint to its attention that there was an obligation on it treat this seriously. It could not be the case that the Worker could chose to proceed with a process under the Dignity and Respect process and then criticise the Employer for providing such a process. This was a contradictory point as the Worker was simultaneously stating that it should have been nothing to do with the Employer and also that the Employer did not do enough.  

The Employer stated that the Worker was currently certified as unfit to drive and so a return to work as a driver was not possible at this time, however non driving related roles were being explored. The Employer asks that there is no finding in the Worker’s favour.

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

I believe the Worker’s account of the sexual assault that she suffered and it is clear to me that this has had a significant and ongoing effect on her. My role in this dispute is not to investigate that incident, but rather it is to look at the Employer’s response when notified of it.

The Worker says that the Employer did not act appropriately when notified. She says that there should have been no internal process and instead she should have been told to go to An Garda Síochána. She was unhappy with the investigative process that did follow, felt unsupported and that there was a cover up. She also submitted documentation relating to a dispute with her union in relation to this issue, but that is a matter that is outside the scope of this dispute.

It appears to me that the substance of the Worker’s dispute centres on whether or not it was appropriate for the Employer to investigate the Worker’s complaint under the Dignity and Respect Policy in the manner that it did, or at all.

In considering whether or not the Employer should have acted on this information, it seems to me that, the complaint having been brought to the attention of the Employer, it had an obligation to act on that and would have been equally criticised for not taking any action. The Worker’s position is that the action it should have taken was to encourage her to report this criminal act to An Garda Síochána.

In the context of this particular dispute, it was a matter for the Worker whether or not she felt comfortable reporting such an incident to the relevant authorities. The obligation on the Employer was to address the employment related aspect of this complaint. Correspondence shows that the Worker raised the complaint and then subsequently raised concerns about meeting the colleague involved in her assault at handover times. The Employer had an obligation to address both the complaint and these concerns. It did so by engaging with the Worker to ascertain how she would like to proceed.

At a meeting on 14th March 2024, the Worker was advised what options were available to her under the company’s policies. She took some time to think about these options and replied by email dated 19th March 2024 that she wished to avail of a formal procedure. She stated:

“I spoke to you in head office last week, I would like to follow the formal procedure.”

It is clear to me that the Worker was advised of what options were available to her and, of her own volition, she chose a particular path with her Employer. I do not see anything inappropriate in this course of action, particularly where it was the choice of the Worker which, if any, process to engage in.

The Worker says that she was pressured to sign a non-disclosure agreement. I note that the Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024 came into effect on 20th November, 2024, which postdates the agreement signed by the Worker by some five months. Nevertheless, the definition of “non-disclosure agreement” in that Act is instructive. It states that:

‘non-disclosure agreement’ means an agreement, or provision thereof, whether or not in writing and howsoever described, between an employer and an employee that purports to preclude the making of a relevant disclosure by the employer or the employee, or both;

I have examined the agreement that the Worker signed and do not agree that it is a non-disclosure agreement. The agreement is not between the Worker and her Employer, rather it is an agreement between the Worker and a colleague. It contains a confidentiality clause which states:

“Both parties agreed to the confidentiality of the process and that they would not discuss this process or the outcome with anyone other than their nominated representative. Both acknowledged if they were in breach of this confidentiality they could be subjected to a disciplinary process.”

Before signing the agreement, the Worker queried the effect of the confidentiality clause. In particular, she wished to know if this would prevent her from making a complaint to the relevant authorities. She received a series of responses to her queries on 7th June 2025 which stated:

“With regards to the statement about confidentiality, this means you cannot discuss it with anyone one within [Employer] except your trade union rep. You can also discuss it with me (or another HR representative)….You can diss it with family / friends, or with someone like a counsellor etc….Yes you can speak to the Gardai about your complaint, this is not in breach of confidentiality….”

As the agreement was not between the Worker and her Employer and she had the ability to discuss the matter with family/friends, as well as reassurance that it would not prevent communication with An Garda Síochána or a counsellor, I do not agree that this is a non-disclosure agreement.

While the Worker is clearly dissatisfied with the advice that she received surrounding these events, it must be acknowledged that she was offered choices in how she would like to proceed. While in retrospect she may be unhappy with the choices made based on the advice received, that is not something that is the responsibility of the Employer.

Even if I accepted that the Worker was told not to go to the Gardaí and advised that it would be handled internally, there was nothing to prevent her from reporting the assault to An Garda Síochána if she wished to in any case, which indeed she duly did.

The Worker’s complaint form states that her dispute is in relation to bullying and harassment. While I accept that the Worker has experienced a most traumatic event outside of work and it has affected all aspects of her wellbeing, I do not see that her Employer has behaved inappropriately in the circumstances. The Employer has not, in my view, breached any of the clauses highlighted by the Worker’s representative in the Employee Handbook. Rather, having been made aware of the complaint, there was an obligation on the Employer to ask the Worker if she wished to pursue this any further under the available policies. The Worker chose that particular course of action and the Employer provided an independent investigation on foot of this. In all the circumstances, the Employer acted reasonably in response to being notified of this complaint.

The Worker requested that she could return to work and receive compensation for the distress that she has suffered. I am unable to make any recommendation regarding a return to work as it would be inappropriate for me to do so. As the Worker is currently certified as unfit for work, it is entirely a matter for a medical professional to determine when she is fit and able to return. As the Employer has not acted inappropriately in handling the Worker’s employment related complaint, I do not consider it appropriate to recommend compensation in this case.

For the reasons set out above, I do not recommend in favour of the Worker.

Bullying and harassment