A female care assistant at the Rotunda Hospital who claimed she was forced to quit because its management let a porter who sexually harassed her stay on staff is to appeal a tribunal ruling rejecting her claim for constructive dismissal.
The Workplace Relations Commission (WRC) has rejected complaints under the Unfair Dismissals Act 1977 and the Employment Equality Act 1998 by Kaitlyn Winston against the Rotunda Hospital in Dublin in a decision published today.
An independent investigation upheld on the balance of probabilities a complaint of “sexual assault” by Ms Winston against the porter following an incident on 3 May 2022, when he “put his hands on her waist”, in breach of her right to work without “unwanted touching”, the tribunal heard last year.
The WRC has ordered the press not to identify the porter, a man in his 30s, who was kept on after the conclusion of a disciplinary process, chaired by the hospital’s general secretary Jim Hussey, which decided that a final written warning was the appropriate sanction.
The porter lost an allowance, but remained in the Rotunda’s employment for a number of months after the sexual assault findings were made against him, but no longer works there for what its representative called “unconnected reasons”, the WRC heard.
Ms Winston, who was 19 at the time, said she returned to work in February 2023 in the belief that she would not have to work with the porter – only to encounter him twice in the same day.
“I felt violated and hopeless and unsupported,” she said in her evidence.
Her solicitor, Barry Crushell confirmed today that Ms Winston would be appealing the decision.
Ms Winston took sick leave again on 24 February 2023. She quit her €31,000-a-year job after a return-to-work meeting on 30 March that year failed to resolve matters and is now working in another maternity hospital, the WRC heard.
The complainant stated in her letter of resignation on 4 May 2023 that she had “no support from management” and that her complaint “wasn’t taken seriously”.
The Rotunda’s head of human resources, Joanne Connolly, admitted there was “frustration” among some senior midwifery managers that the man was kept on — but added that she had no power to alter the decision of Mr Hussey.
Ms Winston’s evidence was that after taking a break on her second shift back she encountered the porter in a stairwell “laughing as he was coming down, and he looked at me”.
“I feel it was intimidation towards me. I feel it was done purposefully. The reason, I felt, he was laughing at me was because he was still there; because I [saw] him after that long time of being off. I got a fright, to be honest,” she said.
She said she went directly to the office of her line manager, Jane Hickey, and told her she felt the porter was “laughing at her”.
“Ms Hickey said she told him a joke and she would vouch for him. ‘Vouch for him’ stuck in my head,” she said, adding later that she believed her line manager was “biased” and did not believe her.
In her own direct evidence, Ms Hickey said: “I wasn’t defending him, I was more trying to tell Kaitlyn I had just met him; I wasn’t vouching for anyone, I can absolutely say I was with him; we shared a funny moment, a funny joke, and he left me within seconds”.
Ms Hickey said she was not informed that the complaint against the porter was upheld and that “no-one ever said it was unsafe to keep that porter working in my department”.
The complainant’s barrister, Cillian McGovern BL, put it to her: “Because nobody said it was unsafe, a man who has sexually harassed an employee working in a maternity hospital is perfectly fine to keep there?”
“I was informed the investigations were ongoing and when they were concluded there was no founded reason for him not to be there. I’m not going to let someone work in a department that’s not safe,” she said.
“You’re implying I knew – this is the first time I’ve seen it,” she added.
The hospital’s head of human resources, Joanne Connolly, said: “We don’t go around telling people things they don’t need to know.”
She told the WRC that the porter had been “permanently removed” from any duties which could expose “women in vulnerable positions” and was only permitted to work in “general areas” and “general wards” but was not meant to be in clinical areas or where women were giving birth, she added.
Mr McGovern, who was instructed by Crushell & Co Solicitors in the case, said the hospital was “meant to be arguably the safest place in Dublin for women to be” — but that after encountering the man again on the premises after his “brazen” behaviour the year before, his client had a “reasonable fear” that she would suffer further harassment.
“It pains me to say it, having had two children there, but it appears the Rotunda was happy to have a sexual harasser continue to work in an environment that is meant to be a materially safe place,” he added.
Mark Comerford of the Irish Business and Employers’ Confederation (Ibec), for the hospital, said it acted in line with its dignity at work policy and that the complainant had not met the standard to establish a case of constructive dismissal.
He said it was hospital policy and “common policy” that disciplinary outcomes were “confidential” and “wouldn’t be disclosed to a third party.”
In her decision on the case, adjudicator Catherine Byrne wrote that her view was that the original incident had been “suitable for managing in a less formal way” than the external investigation Ms Winston had sought.
Ms Byrne noted that there was scope for management intervention, mediation and the provision of a “support person” during “local intervention” and said it was “sad” that Ms Winston had not taken this approach.
“When I asked her what she expected the management to do, the complainant said that she expected Mr X to be dismissed. While there is no evidence that she ever expressed this to anyone in management, such an outcome is not at the discretion of an employee, even one who has had a complaint of sexual assault upheld,” Ms Byrne wrote.
The adjudicator wrote she was satisfied that the hospital’s witnesses and senior nursing staff “made every reasonable attempt to support” Ms Winston.
She noted that the porter received a “sanction” in the form of a final written warning, the loss of an allowance and a transfer to a different department, while there had also been mandatory dignity at work training for porters and maternity care assistants.
That meant the Rotunda “did everything reasonably possible to ensure that a similar incident wouldn’t happen again”, Ms Byrne wrote.
Ms Byrne concluded the hospital “was a safe place for the complainant to work” and ruled that there had not been a repudiation of contract that would support the claim of constructive dismissal.
The adjudicator added that while it was “reasonable” for Ms Winston to resign given that she was distressed at working in the same hospital as the porter, she had failed to give hospital bosses an opportunity to deal with her grievance.
