“My couch is a bed in its own right… let me assure you [there’s] no amorous intent. You are a special lady”
Noel Fogarty had lodged a complaint under the Unfair Dismissals Act 1977 against RTÉ, challenging his sacking in September last year for gross misconduct over the texts, which he had accepted were inappropriate.
“The termination of Mr Fogarty’s employment was not taken lightly. It was a significant decision as a result of very significant misconduct,” said RTÉ’s barrister Mairead McKenna SC, who appeared before the Workplace Relations Commission instructed by Katie Rooney of Arthur Cox solicitors.
She said Mr Fogarty had “sexually harassed a younger member of staff” by sending messages which were “utterly inappropriate in a modern workplace”.
Mr Fogarty told internal investigators that he would not have considered the messages to be of a sexual nature and said his behaviour at the time, for which he apologised, had been influenced by “excessive consumption of alcohol”.
The tribunal was told that the woman who got the messages, identified only as ‘Ms X’ at today’s hearing, came into contact with Mr Fogarty while working night shifts in the RTÉ newsroom for a time last year.
Employment law expert Sarah Daly BL gave evidence of chairing the RTÉ investigation panel into Ms X’s complaint against Mr Fogarty.
Ms X’s statement detailed how Mr Fogarty had come to consider her a “close” friend “even though we’d never met outside work”, the barrister said in evidence.
Ms X told her bosses she felt uncomfortable when Mr Fogarty told her about a text he had sent to one of his female friends seeking “a romance”, seeking Ms X’s advice when the other woman didn’t reply.
“He told me which female newsreaders he liked best – telling me which had voices he found ‘sexy’,” Ms X added in her complaint.
On a stated date last year, Ms X said Mr Fogarty sent her a message offering to let her stay in his apartment, which she considered “odd, but completely inappropriate”.
He told her his “home and bedroom” were open to her.
“My couch is a bed in its own right… let me assure you [there’s] no amorous intent. You are a special lady,” he wrote in one message sent in the early hours of the morning.
“I’ll give you a set of keys and fob for my apart[ment] on Monday… I’m your greatest fan and friend; My daughters would adore you,” read another.
Mr Fogarty also told Ms X in a WhatsApp message he would “shroud [her] in a lifelong comfort blanket.”
“These are very inappropriate messages to be sending a colleague,” Ms X replied.
“Messages and all communication ends forever now,” Mr Fogarty replied, before asking her to delete the messages.
Ms X she felt “uneasy” when she went to work the following night – “nauseous [that] he could be listening to me,” her statement read.
Ms X told her bosses the messages were “extremely upsetting” and caused her “immense stress”.
Ms Daly said Ms X had to attend for overnight shifts after receiving the messages and felt “very vulnerable” as there might be as few as two people at work at this time.
She said her investigation had regard for the impact of the harassment on Ms X, who she said was “not only very upset but facing physical manifestations – stomach cramps, feelings of physical revulsion”.
“I don’t know did we use the word ‘sexual’… She certainly felt uncomfortable; it upset her; it turned her stomach,” Ms Daly said.
She said the “no amorous intent” message “made it feel worse”, Ms Daly added.
“It was certainly my understanding with speaking with her that she felt there was sexual harassment,” she said.
The panel asked Mr Fogarty to explain the messages at a formal investigation meeting, she said.
“He accepted and noted there was an inappropriateness to the messages but that he wouldn’t have considered them to be of a sexual nature,” she told the tribunal.
Mr Fogarty said the “home and bedroom” offer was “not a sexual overture”, Ms Daly said
“To a large extent, Mr Fogarty’s response was ‘I don’t remember; I don’t know. His response was to accept that it was inappropriate,” she said.
In a later written submission to the investigation, Mr Fogarty wrote: “Unlike others I’ve had no escape from the solitude of lockdown.”
He told the inquiry the pandemic had “dominated” his working life and that that he had become “dependent on alcohol” and that he had sent many of the messages “while inebriated”, Ms Daly told the hearing.
“I was reluctant to reveal my dependency due to the stigma of substance abuse, particularly in the workplace. I do admit overstepping and accept my message was completely inappropriate,” he wrote to the investigators.
Ms X told the investigators she had nothing more to add, the tribunal was told.
Ms Daly told the tribunal she then circulated a draft report to the parties, and after asking for additional time to seek legal advice, Mr Fogarty wrote to state that he believed his actions to have been “inappropriate” and making a full acceptance of the draft’s findings.
He apologised for the “hurt and pain” caused and said he had “failed to treat [his] colleague with respect”.
He then asked RTÉ to “consider alternatives to the most punitive of sanctions”.
Ms Daly said that as both parties had accepted the findings she had outlined in the draft report, this became the final report.
Following a short break in the witness’s evidence, Mr Fogarty addressed the hearing and said he was finding the process “very stressful”.
“I’m not prepared to proceed with the hearing and I want to give notice of my intention to withdraw my claim,” he said.
No further evidence was given by Ms Daly.
After being urged by the adjudicating officer, John Harraghy, to take some time to consider his decision, Mr Fogarty returned to the hearing room and confirmed his decision.
“I honestly believe that without representation I don’t have the legal nous to make what I believe will be a sufficient or adequate defence of my actions,” he said.
“I do indeed have a substance issue, an addiction to alcohol. I’ve found sobriety since May of this year and continue to maintain that existence,” he said.
“A large part of my transgressions were due to excessive consumption of alcohol over the period,” he said.
“I formally now withdraw my claim,” he added.
Mr Harraghy gave Mr Fogarty the papers to sign for an immediate withdrawal of the statutory complaint and closed the hearing.