ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00059498

Parties:

Complaint(s):

Date of Adjudication Hearing:  14/01/2026

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s). Allowing for the sensitive nature of the claims I have exercised my discretion to anonymise the parties.

Background:

Preliminary Matter

It is sometimes the case that internal procedures can either take too long to conclude, or they are alleged to be unfair and inadequate.

In this case the first alleged incident of harassment is technically out of time as it occurred in late 2023 and the complaint form was lodged on the 8th  of June 2025. It is also the case that the Complainant had left her employment on:

“ I resigned my role in redacted on December 9 2024”

At the hearing the Complainant was asked did she make a formal written complaint about the first incident of  harassment. There is record of a formal written complaint. However, the matter was raised verbally and also viewed as a serious matter by the Respondent. In line with the first stage of the procedure an informal resolution was sought. That may or may not be the correct response depending on the seriousness of the allegation. This is an allegation where  the Complainant stated that another work colleague verbally expressed that he was sexually attracted to her in a very explicit way.

The Complainant relies on  a number of records obtained through a Data Protection request that she relies upon to show that the process was not properly investigated. The following is note of a manager involved that investigation:

Complainant’s report Thursday 02/05 I received a text from Complainant who was out on service visits asking me to call her. T/C started off by Complainant saying she was not formally complaining. She stated there had been an incident the night before in redacted pub between herself and redacted. She stated redacted had an argument with and had been very aggressive. She told me de-escalated the situation. She then spoke to redacted and told him he should go home and things got heated. The argument continued and redacted accused her of over sharing. She said he was “getting up in her face” so she clocked/clipped him. Advised I would discuss when back in the office. She was on Annual leave the next day so we agreed to speak on Tuesday 07/05/24. Complainant emailed that morning. See below; “Hiya, I was wondering if yourself, myself and redacted could have a chat this week – I feel incredibly uncomfortable at the thought of being around him after his behaviour last week. Hoping we can all just know where we stand and please God move on? Thanks, Complainant “ redacted was out of the office so I met redacted alone. She said she no longer wanted to have a talk with myself and redacted and he had tried to speak to her earlier that morning. She went over what had happened that previous Wednesday night and she was not happy working in the office with him after he tried talk to her. She stated that he had been in her personal space being aggressive and she raised her arm to push him back. She said she was not comfortable in the office with him. I advised around redacted grievance procedure and policies and gave her hard copies of both copy and I advised to read over. I reiterated if putting in a complaint we would have to follow proper procedures. I advised mediation on a local level would be the first step if both parties agreed to it. I asked Complainant to think over her next step and get back to me. 08/05/24 I spoke with Complainant privately. She advised she did not want to pursue the grievance procedure. She said she did not want anything to do with redacted but would keep relationship professional in work. Advised I would speak to redacted but if both parties were happy no further action to be taken. Complainant agreed to this. 15/05/2024 Arrived in office at 16.54 Complainant asked to speak with me. She told me she had been speaking to redacted staff who had been out with them on the 02/05. She said told her after the incident when Complainant was outside redacted had been saying stuff of a personal nature she had disclosed to him. She stated if she finds out that was what he said she would “go for him”. She visibly upset so I asked her to have a cigarette and cup of coffee to calm down and I would speak with her in a few minutes. She stated if he had been in the office after hearing what he allegedly said she would have picked up monitor and thrown it at him. I again advised her that this was not an acceptable way to talk in a workplace. She went to canteen and had a cup of coffee. At 17.10 I spoke with Complainant in private. She was still quite heightened. She told me she cannot work in office with redacted. She stated that if redacted had been in the office after what told her what he had said she would have “went” for him and would have thrown a computer monitor at him. She went over the events in redacted and said that she can’t be in the same office as “it”. She said other people were there and witnesses and she can’t be expected to work in the same building. I told her I could only deal with her complaint. I advised around the confidentiality aspect of grievance procedure and I have received no other complaints. She stated everyone knows he was in the wrong. She brought up previous Dignity at work complaint and again kept repeating how can she be expected to work in the building. She pointed to how difficult the job is without having to “put up with that shit”. I told her the other complaint was being dealt with and this would have to be dealt with separately. I advised if she wants to go forward with the grievance policy that avenue is open but formal procedures would have to be followed. She again stated she cannot share an office with redacted. Complainant said that she did not think she can continue in role. If she returned to office on Monday (she had 2 days booked off on AL) she wasn’t sure what she would do when she saw redacted. I told her I would meet to Monday morning to see how she was feeling and if she did not feel she could come to redacted  I could meet her in redacted. She agreed to this. 20/05/2024 08.30 I spoke with Complainant on phone at approx 08.30. She stated she felt she could not return to redacted. I told her I would speak to management to see what they advise. I also advised to contact staff supports. I spoke with redacted. He advised himself and redacted would meet Complainant at 11 in redacted to discuss what was going on. I rang Complainant back at 08.50 and asked would she meet redacted and redacted. She agreed to this. I advised if she wanted to bring someone with her she could. 11.30 – Received a call from Complainant ,”was not impressed that if she didn’t come into the office that she would have to take A/L or go to the doctor and why should she be expected to take A/L “ I advised I would check in the following morning and at 5 that evening I received a sick certificate

The Complainant had the benefit of legal advice at a point during the period of her employment and concerning the two complaints, and the following is a reply from the Respondent to her Solicitor:

To whom it may concern, I refer to your correspondence of 30th July 2024 to redacted. This has been referred for my direct reply. Having examined all aspects of the matters please find below my response to the queries raised therein. I note the outline of events provided by your client, Respondent do not agree with the position outlined in relation to certain elements of same. With reference to the second complaint made by your client referring to an alleged incident as having taken place at a work-related function. The complaint made under the Respondent Grievance Policy by your client relates to an incident that took place outside the workplace and is in no way considered an event that took place ‘in the workplace’ or at ‘certain work related events’ as described in the Respondent’s Dignity at Work policy. The Respondent will not be investigating this matter as it would not be appropriate to do so. It is our position that the alleged incident described, took place during the employees personal time outside the workplace while socialising. This did not take place at an event organised, sanctioned, facilitated or funded by the Respondent. Should a criminal complaint arise and there is a resulting prosecution or other outcome then the Respondent will take all appropriate steps necessary as a result. Any employee who is the subject of criminal proceedings is obliged to divulge these matters under their obligations in respect of the Code of Conduct for Respondent Employees in order for the Respondent to consider what, if any steps are necessary to be taken. Secondly In relation to the initial complaint made by your client. It is my understanding that your client was involved in a local resolution process carried out under the Respondent Dignity at Work Policy and that she was satisfied with the outcome of this until some months following when her position changed. The local resolution process is the default process initiated in any complaint being dealt with under the Dignity at Work Policy. As the matter has been the subject of a local resolution process that was deemed to have concluded it is not now considered possible to carry out a further Formal Investigation as you have sought. However, I am sympathetic to the position that your client now puts forward that she no longer feels that she can continue to carry out her duties in the same place of work as before and that she has found herself to be out of work on extended sick leave due to this. On that basis to address her concerns I am proposing to relocate your client to redacted Offices to carry out duties from that location as part of the redacted Unit as a member of the redacted team where she will no longer have to work in proximity to the individuals she has made complaints against. Subject to your agreement with this, I also propose that your clients absence since 20th May will be recorded as ‘special leave with pay’ and her entitlements to sick leave benefits will therefore be restored. The above is proposed without prejudice and is based on a return to the workplace at the expiry of your clients current medical certification. Yours sincerely

The Complainant had the benefit of legal advice on or about the 30th of July 2024, and that meant her complaints could have been lodged with the Commission at that time. It is not the case that time stands still until an internal process runs its course, but time does stop once a complaint is lodged with the Commission and is made within the statutory timeframe. The parties fundamentally differ on whether the process had resolved or was still running. The communication between the parties does not clarify whether the first grievance  was or not closed.

The Complainant states that she experienced unfairness arising from a flawed grievance process that amounts to a continuation of harassment. She relies on an alleged flawed investigative process to ground her complaint that the harassment was ongoing. While this case refers to a grievance investigation about sexual harassment, the Supreme Court has considered when a failure in fair procedures also amount to oppressive conduct.

In the decision of Ruffley v Board of Management for St Annes School [2017] IESC 33 the Supreme Court stated as follows regarding the utilisation of procedure as a form of bullying:

“In theory it is possible that a disciplinary process conducted in accordance with the rules of fair procedures might still constitute bullying, and even irrespective of the outcome of the process. An ostensibly fair process, and punishment for an established breach may constitute bullying if it is established it was instituted maliciously, and as part of a campaign to victimise an individual.”

 O’Donnell J also stated at paragraph 32 in Ruffley  that:

It is also important to keep in mind the role of fair procedures in this case. They clearly loom large in the High Court judge’s assessment of the case, and were relied on to a significant extent in the dissenting judgment of Finlay Geoghegan J. in the Court of Appeal. However, it is not necessary to establish a breach of fair procedures to succeed in a bullying claim, and conversely, the presence of unfair procedures does not establish bullying. Bullying often involves a question as to how something was done rather than what was done. In theory it is possible that a disciplinary process conducted in accordance with the rules of fair procedures might still constitute bullying, and even irrespective of the outcome of the process. An ostensibly fair process, and punishment for an established breach may constitute bullying if it is established it was instituted maliciously, and as part of a campaign to victimise an individual. It is important therefore not to blur the distinction between these two different claims by assuming that there is any logical connection between a breach of procedures, and a claim of bullying entitling a party to substantial damages.

The facts in this case do not lend themselves to describing the procedures as having a malicious intent. They maybe criticised for being inadequate and that is disputed; however, I find that they cannot be classed as an act that could be discriminatory as there was no malicious intent. Having determined that the grievance procedures in this case are not acts of discrimination, it must follow that the complaints before me are inordinately out of time and therefore I have no jurisdiction to hear the complaints.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

Dated:   04/02/26

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Key Words: