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47
a complaint simply because they have a differ-
ent interpretation as to what constitutes ac-
ceptable behaviour.
Key Cases
One of the first high profile cases to surface in
Ireland in this area occurred in , involv-
ing fireman Michael Shanley and Sligo Cor-
poration. Shanley was bullied to the extent
that he became suicidal, whereupon the High
Court awarded the plaintiff £, for post-
traumatic stress disorder.
In the same year the crime correspondent
with Independent Newspapers, Liz Allen, was
awarded €, by the Employment Appeals
Tribunal after walking off the job due to man-
agements’ failure to deal adequately or consis-
tently with her complaints of harassment, iso-
lation and feeling undermined. On top of this,
an action at the High Court for personal inju-
ries arising from this behaviour was settled
subsequently. In it was widely reported
that multi-millionaire developer Robert ‘Pino’
Harris had settled with his chauffeur at the
High Court, when faced with accusations of
calling him ‘chicken brain’ and ‘eejit’, amongst
other forms of verbal abuse and humiliation.
Then in the following year the print media re-
lated details of a High Court action taken by
an employee at the Marino Institute of Educa-
tion for bullying and intimidation which was
settled for €,.
Make Haste Cautiously
Whilst this is bad enough, numerous employ-
ers have found themselves in legal ‘hot wa-
ter’ for making a mess of their investigation
of complaints. For example, in the Cen-
tral Remedial Clinic suffered a Labour Court
ruling which underlined the employee’s right
to pursue a case through the Rights Commis-
sioner service, and if necessary to the Labour
Court.
Then in Aer Lingus were informed by
the Rights Commissioner service of the Labour
Relations Commission that their investigation
of bullying was “flawed” – by, for example, al-
lowing the accused to escort witnesses to the
investigation hearing. In the following year
the Labour Court informed An Post that a ha-
rassment claim had ‘not been satisfactorily in-
vestigated’, as the basic principles of natural
justice were denied the claimant.
Then in the Health Service Executive
had to pay out €, for the manner of its
investigation, which the Rights Commissioner
found ‘unacceptable’, as it allowed the investi-
gation ‘to fail due to the non-co-operation by
the person against whom the allegations had
been made’. In the same year Henkel Loctite
found themselves in trouble as their investiga-
tion involved, according to the Commission-
er: a ‘general line of questioning (deemed) in-
appropriate in the circumstances’ (e.g. “was
this a lovers’ tiff?”). Whilst at around the same
time Dun Laoghaire Rathdown County Coun-
cil had a Labour Court judgment of €,
made against them as their bullying investiga-
tion ‘did not adhere to its own procedure’.
‘Balance Of Probabilities’
Unlike the criminal law arena, where allega-
tions have to be proven ‘beyond reasonable
doubt’, when it comes to bullying and harass-
ment allegations adjudication are based upon
the less strenuous test of ‘the balance of prob-
abilities’.
The implications of this are evident from
a Labour Court case involving Tesco super-
markets, when a sales assistant alleged ha-
rassment by an older male colleague. Despite
claims that she was “subjected to a stream of
verbal and physical sexual harassment” which
‘became more serious as time went on and in-
volved unwanted bodily contact”, there were
no witnesses and the allegations were “totally
denied”. In the absence of independent wit-
nesses the Court was confounded by the “clear
contradiction in almost every detail between
the appellant and her alleged harasser, leading
to a conict of evidence “under oath”. Dealing
with the evidence on the basis of a “balance of
probabilities’ the Court concluded “that some
incident, or incidents, must have taken place”
and awarded the claimant €,.
In a separate case before this the Circuit
Civil Court heard about an employer accused
of “bum-pinching” and asking his friend (in
the young female employee’s office) if he want-
ed “a coffee, a tea or a blow job”. The boss was
also accused of staring at her genital parts and
bending over her to stare down her blouse. De-
spite the conflict of evidence and the absence
of corroborative witnesses, the Court awarded
€, damages to the claimant on the ‘bal-
ance of probabilities’ for bullying and sexual
harassment.
Just this year the Equality Tribunal award-
ed €, against a West of Ireland print-
ing company for sexual harassment, when
the claimant contended that she had been
‘subjected to non-consensual acts of physi-
cal intimacy by her male co-employees and
managers. These acts included ‘slapping her
bum, pinching her bum and her arm’, whilst
she ‘was (also) regularly shown offensive por-
nographic images” by colleagues. The Tribu-
nal’s award was influenced by its acceptance
that, on the ‘balance of probability’ some of
these actions had occurred.
Avoid Shortcuts
With unemployment rampant, many man-
agers are now being forced to get more from
less at work. Faced with this challenge, some
will opt to take shortcuts and manage per-
formance by bullying and harassment. This
would be counter-productive. In short, the
message for the beleaguered employer is that
there is no substitute for constructive perfor-
mance management and tightly-worded bul-
lying and harassment policies and practices
that are properly implemented. With bullying
there are no winners.
“The list of organisations tainted by such
practices reads like a directory of eminent
employers… both Aer Lingus and First
National Building Society (now First Active
plc) have lost Chief Executives arising from
bullying…”
48 — village july 2009
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