Manager sacked after ‘joke' sext on colleague's phone gets reduced WRC award
manager sacked
after he admitted taking a colleague's phone and sending her husband a 'sexually explicit' text message as 'a joke'.
In an anonymised decision just published, the
Workplace Relations Commission
(WRC) upheld a complaint under the Unfair Dismissals Act 1977 against the man's former employer after concluding it was 'too extreme' to declare that the man's conduct was 'at the high end of sexual harassment'.
He said he was being made the 'fall guy' for a workplace culture of 'sexual comments and innuendo' at the financial services company as he pleaded to its board to be let keep his €60,000 a year job, the tribunal heard.
The tribunal heard that in January 2024, the complainant took one of his direct reports' mobile phones from her desk and sent a 'sexually explicit WhatsApp message to her husband', which the other worker, Ms A, found out about as she left to go home.
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The complainant 'owned up' and claimed it was 'meant to be a joke', the tribunal noted. Ms A raised it with the CEO of the organisation as soon as he returned from leave, telling him she and her husband considered the message 'vulgar and disgusting'.
The text of the message was not included in a WRC decision document published on Friday.
The CEO called the claimant to a meeting and suspended him with pay a week after the event, the tribunal heard. The tribunal noted the evidence of the CEO that another senior employee, Ms B, who came to the suspension meeting as a witness, remarked afterwards: 'I can't believe this is happening again.'
The CEO told the tribunal he had forgotten about a previous similar incident involving the same manager in September 2022, and told Ms B: 'If we're to do anything about this, I need it documented.'
Ms B later wrote a letter of complaint setting out that she had left a personal device in the company's finance office when she went on holiday in September 2022 so a colleague could use a banking app installed on it, the tribunal heard.
While she was away, the man had posted 'two sexually offensive messages' on her social media account, the complaint letter stated. Ms B made contact with the manager and told him not to use the banking app, as she feared the phone was 'hacked'.
The complaint letter set out 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 heard.
Ms B wrote in her complaint letter that she was 'extremely annoyed', but after arranging with the CEO for a dedicated mobile phone for the finance office, took the matter no further.
Michael Kinsley BL, appearing instructed by Daniel O'Connell of Kean's Solicitors in the matter, told the Commission the company had failed to examine the position advanced by his client about the 'culture and behaviour of staff in the organisation', which he said had been 'treated dismissively' at all stages.
Mr Kinsley said the investigation was 'biased and prejudged' and the decision to dismiss 'wholly unfair and disproportionate'.
Lauren Tennyson, for the company, instructed by Sarah Conroy of Beale & Co, said the employer took the view that the external investigator had made 'extremely serious' findings at the 'higher end' of sexual harassment and that the complainant's behaviour 'warranted dismissal for gross misconduct'.
Adjudication officer Catherine Byrne wrote in her decision: 'I do not wish to minimise the impact that the incidents had on the two employees,' she wrote.
However, she noted that the complainant and Ms B remained friends after the September 2022 incident, while Ms A had stated she had 'just kind of got on with things'.
She considered it reasonable that both women would be angry, embarrassed and shocked at the complainant's behaviour, and that it amounted to sexual harassment. However, the conclusion reached by the company investigator that it was a 'high severity of sexual harassment' was 'too extreme' a view, she wrote.
She considered it unfair that the employer included the 2022 incident with Ms B's phone in its probe 'to bolster a case for the dismissal of the complainant', having taken no action about it at the time, she wrote.
Ms Byrne also found there were 'serious failings' with the process followed by the employer.
They 'failed in their duty to properly consider the complainant's defence' – having spent at most 20 minutes considering the worker's position before deciding to dismiss him.
Ms Byrne upheld the complaint of unfair dismissal and awarded the worker €22,500 in compensation.
She wrote that this was 30 per cent of his estimated losses of €73,500, calculated on the basis that the claimant was out of work six months and was now earning €314 a week less than he had with his former employer.
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