A female care assistant at the Rotunda Hospital who claimed she was forced to quit because its management let a porter who sexually assaulted her stay on staff is to appeal a tribunal ruling rejecting her claim for constructive dismissal.
The Workplace Relations Commission (WRC) 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 on Tuesday.
An independent investigation upheld on the balance of probabilities a complaint of “sexual assault” by Ms Winston against the porter following an incident on May 3rd, 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.
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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 aged 19 at the time of the incident, said she returned to work in February 2023 in the belief that she wouldn’t 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 February 24th, 2023. She quit her €31,000-a-year job after a return-to-work meeting on March 30th 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 May 4th, 2023 that she had “no support from management” and that her complaint “wasn’t taken seriously”, the WRC heard.
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 said 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.
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.
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.
