Suit salesman sacked for sexually harassing female colleague loses unfair dismissal action

The firm sacked the salesman following a disciplinary process in response to the woman also alleging in April 2018 that the salesman touched the back of her neck on numerous occasions; that he held her hand on the shop floor; showed interest in her love life; invaded her personal space; came up behind her and whispered in her ear and made comments about her body and appearance.

The firm sacked the salesman for gross misconduct in 2018 on the grounds of sexual harassment.

The employer operates a number of stores nationwide and employs over 100 people.

The senior salesman was highly regarded by his employer as a high performing suit salesman and worked out of a flagship store in Dublin city centre.

The man sued for unfair dismissal at the Workplace Relations Commission (WRC) and the WRC has found that the decision to dismiss the man was fair.

The WRC made the findings in spite of the man vigorously denying the allegations made against him and claiming that the decision to dismiss him was unfair and disproportionate.

In rejecting the man’s claim for unfair dismissal, WRC Adjudication Officer, Roger McGrath stated that in light of the seriousness of the allegations made and upheld, allied to the lack of empathy displayed by the male worker “I find that there were substantial reasons to justify the dismissal”.

Mr McGrath stated that the salesman accepts that he carried out several of the actions of which his female colleague had complained.

Mr McGrath stated: “It was his view that these actions were not sexual in nature and that it was never his intention to upset her. However, the intentions of the perpetrator are not what counts in such circumstances, rather it is the perception of the recipient that is important."

Mr McGrath stated that in this instance the female worker was upset by the complainant's interactions with her.

He stated:

“In [the] view of the HR Manager who took the decision to dismiss the Complainant, he did not fully grasp the significance of his actions, their impact on his female colleague nor did he show real remorse for the upset he had caused.”

At the hearing the man was adamant that his actions were not sexual harassment, harassment or inappropriate.

The man was of the view that when the complaint came in it was seized upon by the company as a way to exit him from the business.

The salesman categorically denied that he was guilty of any harassment, sexual harassment or inappropriate behaviour.

He stated that there was a tactile environment in the workplace.

The man gave evidence that none of his engagement with his female colleague was sexually motivated or was sexual in nature or was intended to violate her dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for her to work in.

The salesman stated that his employer had made a grave error – conflating a finding of unwelcome physical conduct with a finding of sexual harassment.

The man stated that although he might have given his female colleague a polite hug he did not use any inappropriate terms when referring to her and he had the height of respect for her.

He stated that he never played with her zip and he may have used terms of endearment like pet but she never told him to stop.

In his experience over 13 years, the salesman stated there has been an accepted culture amongst staff and management of the employer of physical contact: hugging; kissing goodbye or hello; jostling; back slapping or patting and verbal compliments on appearance or attire.

He stated that throughout his employment with the firm this behaviour has been witnessed and engaged in by the company’s management.

Under cross examination the man stated that he never felt that he had done anything wrong.