Woman accused of sexually harassing male co-worker loses appeal over dismissal

Judge satisfied that UPS was correct in concluding that behaviour warranted dismissal

A woman sacked by UPS for gross misconduct following allegations of sexual harassment against her by a male co-worker has lost an appeal over her dismissal.

A woman sacked by UPS for gross misconduct following allegations of sexual harassment against her by a male co-worker has lost an appeal over her dismissal.

 

A woman sacked for gross misconduct following allegations of sexual harassment against her by a male co-worker has lost an appeal over her dismissal.

The woman, who cannot be named, was awarded €37,500 in 2019 by the Workplace Relations Commission (WRC), which found her dismissal was not within the range of reasonable responses open to her employer, delivery company United Parcel Service CSTC Ltd (UPS).

The WRC adjudication officer found that emails she sent, including to the man who accused her of sexual harassment, were inappropriate but that no consideration had been given of the context in which she had sent the emails and of the overall effect on her of the investigations into the complaint.

The company appealed to the Labour Court, which overturned the WRC decision in March 2020. The woman appealed that decision to the High Court.

In her judgment, Ms Justice Niamh Hyland concluded the Labour Court was correct in holding the dismissal was within the range of reasonable responses open to the employer.

The woman began working for the company in September 2015. About a year later, a male co-worker made a complaint of sexual harassment against her.

Asked him out

The man complained that, the previous June, she approached him and asked him out. She said she did not ask him out but told him he was “driving her mad with his mixed messages and she wished he would make up his mind”, the judge said. He said he told her he already had a girlfriend and she said he did not.

He made a further complaint that, on September 23rd, 2016, after she approached him at his desk and asked “could he not be nice to her for two minutes”. He said he was too busy but she continued to stay at his desk staring at him for a few minutes and then left.

In November 2016, the employer upheld two complaints against her but did not recommend disciplinary action.

She lodged an in-house appeal in which she also asked the investigators to encourage the man to enter into mediation “or she would make her own complaint against him”. The appeal upheld the finding against her.

She then lodged her own complaint of sexual harassment and bullying against him. In March 2017, the employer found no basis for it and that her complaint was made maliciously.

She complained about the process of the investigation but that was found not to amount to a legitimate grievance. She then sent a detailed email to another colleague and friend of the man as well as an email to the man himself.

Unwelcome emails

He made a further complaint against her and she was suspended, on pay, pending investigation. That investigation found the two emails were inappropriate and unwelcome. A decision was made in July 2017 to sack her for gross misconduct.

The woman made a further in-house appeal which failed. She then appealed to the WRC, which found with her but the Labour Court upheld the company’s appeal and overturned the WRC decision.

In upholding the Labour Court finding, Ms Justice Hyland said she did not believe the woman intended to cause hurt or upset by the emails.

The woman believed at the relevant time that she was justified in sending them “in a misguided attempt to clear the air”.

The judge said the essence of her claim was that the Labour Court erred in failing to explain how her behaviour constituted bullying and harassment, and that her conduct did not in fact meet the test of bullying and harassment.

The judge was satisfied the company was correct in concluding her behaviour was bullying and harassment and warranted dismissal.