A tribunal has granted a reduced compensation award in an unfair dismissal case involving a manager who was fired after admitting to taking a colleague’s phone and sending a “sexually explicit” message to her husband “as a joke,” reports RTE.
In a recently published anonymised ruling, the Workplace Relations Commission upheld the unfair dismissal complaint under the Unfair Dismissals Act 1977, finding that it was “too extreme” for the employer to categorize the man’s actions as being “at the high end of sexual harassment.”
The man argued he was being used as a “fall guy” for a workplace culture filled with “sexual comments and innuendo” at the financial services firm, and had appealed to the company’s board to allow him to keep his €60,000-per-year role, the tribunal heard, reports RTE.
Details from the hearing revealed that on January 30, 2024, the complainant took a phone belonging to one of his subordinates and sent a “sexually explicit WhatsApp message to her husband.” The recipient, referred to as Ms A, became aware of the message as she was leaving work for the day.
The tribunal noted that the complainant “owned up” and said the message “was meant to be a joke.” Ms A reported the incident to the company’s CEO once he returned from leave, saying both she and her husband found the message “vulgar and disgusting,” reports RTE.
The actual message content was not disclosed in the WRC decision released today.
According to the tribunal, the CEO called the complainant to a meeting and placed him on paid suspension on February 6. It was also recorded that a senior staff member, Ms B, who attended the meeting as a witness, later commented: “I can’t believe this is happening again,” reports RTE.
The CEO stated he had forgotten about an earlier, similar event from September 2022 involving the same employee and told Ms B: “If we’re to do anything about this, I need it documented.”
The tribunal heard that Ms B subsequently wrote a formal complaint explaining she had left a personal phone in the company finance office while on holiday in 2022 so a colleague could use its banking app, reports RTE.
During her absence, the complainant allegedly used her social media account to post “two sexually offensive messages,” according to the letter. Ms B had contacted him, expressing concern the phone might have been hacked and told him to stop using the app.
The letter stated that the complainant “pretended to be serious at first, and then he began laughing and \[said] he had posted the messages as a joke,” the tribunal noted, reports RTE.
While Ms B said she was “extremely annoyed,” she ultimately did not pursue the matter further after the CEO arranged for a separate company phone for the finance office.
Barrister Michael Kinsley BL, instructed by Daniel O’Connell of Kean’s Solicitors, argued that the company failed to address his client’s explanation about the “culture and behaviour of staff in the organisation,” which he claimed was “treated dismissively” throughout.
Mr Kinsley added that the investigation had been “biased and pre-judged” and that the dismissal decision was “wholly unfair and disproportionate,” reports RTE.
Representing the employer, Lauren Tennyson BL, instructed by Sarah Conroy of Beale & Co, stated that the employer believed the external investigator had uncovered “extremely serious” findings at the “higher end” of sexual harassment and that the complainant’s actions justified dismissal for gross misconduct.
In her ruling, adjudication officer Catherine Byrne stated: “I do not wish to minimise the impact that the incidents had on the two employees,” she wrote, reports RTE.
She observed, however, that the complainant and Ms B had remained friends after the 2022 incident, and that Ms A had indicated she had “just kind of got on with things.”
She said it was understandable that both women would be upset, embarrassed, and shocked by the complainant’s conduct, which did amount to sexual harassment. Still, she said the company investigator’s conclusion that it was a “high severity of sexual harassment” was “too extreme” an interpretation, reports RTE.
Ms Byrne also criticised the employer’s decision to bring the 2022 phone incident into the investigation, noting it was used “to bolster a case for the dismissal of the complainant,” despite no action having been taken at the time.
She further found “serious failings” in the employer’s process, stating that the investigator had exceeded the scope of their mandate by making a judgment about the severity of the harassment, which was then accepted in full by the disciplinary panel, reports RTE.
That panel, she wrote, “failed in their duty to properly consider the complainant’s defence” and had spent no more than 20 minutes reviewing his position before making the dismissal decision.
Ms Byrne upheld the complaint of unfair dismissal and ordered that the worker be awarded €22,500 in compensation, reports RTE.
She determined this to be 30% of his estimated losses of €73,500, based on his being unemployed for six months and currently earning €314 less per week than he did with his previous employer, reports RTE.
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