Labour Court Database __________________________________________________________________________________ File Number: EED888 Case Number: EEO885 Section / Act: S27EE Parties: A COMPANY - and - A WORKER;JAMES G O'MAHONEY & COMPANY |
1977
Recommendation:
ORDER:
The Court was asked to find that the worker had resigned from the
Company as a result of being sexually harassed by another (more
senior) member of staff; that this amounted to constructive
dismissal and was in contravention of Section 3(4) of the
Employment Equality Act of 1977.
In support of her allegations of sexual harassment the claimant
submitted, in writing and verbally, the history of a number of
incidents which she contended occurred during her period of
employment. In a number of these incidents specific witnesses
were named by the claimant.
In its consideration of the allegations the Court was presented
with a number of agreed facts.
(1) The claimant and her mother had met management to discuss the
issue.
(2) The Company had become aware of the name of the person
involved in the allegation.
(3) Apart from speaking to the claimant, her mother and the
person alleged as being responsible for the harassment, the
Company had undertaken no further measures in relation to the
complaint.
(4) Both sides agreed to a large extent on the circumstances
surrounding one particular incident.
In contrast to the above four agreed facts, the Court was also
presented with a list of alleged incidents, all refuted, and with
no corroborative evidence.
In relation to (3) above, it appears to the Court that if the
matter had been handled in a different manner by the Company
following the meeting the eventual outcome may well have been
different. It is questionable in the Court's opinion, having
regard to its well publicised guidelines in relation to sexual
harassment, as to whether it is sufficient for a Company to
discuss the allegations with a claimant, raise them with the other
party and then decide against the claimant. This particular
aspect of the case however is not one upon which the Court is
entitled to base a decision. Suffice to say that at the time of
the meeting the claimant behaved in a manner consistent with a
person who believed that she had a grievance and would have been
satisfied if even a general warning had been issued regarding
behaviour within the Company.
Apart from the agreed facts, the Court was confronted with a major
obstacle in its deliberations on the issue in that with one
exception, all of the witnesses who had been summoned to attend as
a result of being named by the claimant as witnesses to some of
the allegations, on oath gave evidence which in no way
corroborated the allegations except in relation to one specific
incident, i.e. (4) above.
In relation to the one case, referred to above, where there was
corroborated evidence the Court had to decide whether this
incident amounted to sexual harassment which resulted in
constructive dismissal as claimed. Having considered all the
facts related to that incident the Court is of the view that in
its content and gravity it did not amount to an act of sexual
harassment which warranted a claim for constructive dismissal.
The Court is aware of the difficulties for a Plaintiff in such
cases of producing witnesses as acts of sexual harassment usually
occur in private. Nevertheless the onus of proof lies with the
plaintiff, being the person who alleged the incidents took place.
In its investigation of all the incidents the Court afforded to
both parties an opportunity to elaborate on their submission and
to bring forward witnesses on their behalf. As stated earlier,
none of the witnesses corroborated any of the events detailed by
the claimant (the incident referred to above being exempted).
The Court considered all the evidence given by the claimant, her
mother and the one supportive witness. It also considered all the
evidence given by the remaining witnesses and the submissions made
by the legal representatives of the parties. Affording equal
weighting to all the submissions and having regard to where the
onus of proof lay the Court considers it would not be justified in
finding in the Plaintiff's favour.
The Court accordingly does not find the case for constructive
dismissal well founded and accordingly dismisses the claim.
Division: Ms Owens Mr Shiel Mr Walsh
Text of Document__________________________________________________________________
EED888 ORDER NO. EEO588
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: A COMPANY
(Represented by Ronan Daly Jermyn)
and
A WORKER
(Represented by James G O'Mahoney & Company)
SUBJECT:
1. Claim alleging constructive dismissal as a result of alleged
sexual discrimination under Sections 2(a) and 3(4) of the
Employment Equality Act, 1977.
BACKGROUND:
2. The worker concerned commenced employment in the Company in
June, 1986, and worked as a general operative until she terminated
her employment in September, 1987.
The worker claims that during the period of her employment she was
subjected to continuous sexual harassment by a more senior
employee. She also claims that as a direct result of this
harassment, she was forced to take protracted sick leave and to
eventually terminate her employment, and is consequently claiming
she was constructively dismissed. The Company deny these
allegations. It claims that her complaints were fully
investigated but that the allegations could not be substantiated
and that the claimant voluntarily terminated her employment.
3. On the 23rd March, 1988, James G O'Mahoney & Company
(Solicitors), on behalf of the claimant, referred her case to the
Labour Court under Section 27 of the Employment Equality Act,
1977. A Court hearing was held in Cork on the 7th September,
1988. Following evidence given by the claimant the hearing was
adjourned so that fellow workers who allegedly witnessed some of
the alleged incidents could be called. The Court re-convened in
Cork on the 26th October, 1988, at which all evidence was taken
under oath.
WORKER'S ARGUMENTS:
4.1 During the period of her employment, the claimant was
continuously subjected to unwanted verbal and physical sexual
harassment (details supplied to the Court). The claimant
made it clear on several occasions that she neither approved
of or welcomed what she was being subjected to (details
supplied to the Court).
4.2 The Company was, or ought to have been, aware of the
unpleasant and hostile environment that the claimant was
being exposed to. However, when she finally complained to
Management in June and July, 1987, giving details of the acts
of sexual harassment towards her, it failed both to issue any
verbal warning to the person involved and to implement any
disciplinary procedure against him. In addition, Management
failed to offer her an acceptable remedy and in fact
threatened to terminate her employment if she did not return
to work (the claimant was absent from work for several months
on certified sick leave, suffering from depression and
anxiety as a direct result of the alleged harassment).
4.3 Management completely failed in its obligations to ensure the
claimant's workplace was free from sexual harassment and
failed in its obligations to respond to the complaints which
it would seem were not taken seriously. The claimant
considered that due to the harassment and the conduct of
Management she could not really be expected to return to work
and informed Management of this in September, 1987. She is
therefore claiming that she was constructively dismissed.
4.4 The claimant was treated less favourably because of her sex
than a person of the other sex, within the meaning of Section
2 and Section 3(4) of the Employment Equality Act, 1977, in
that her employers, in relation to her conditions of
employment, did not afford her the same working conditions as
they afforded to their other workers. In particular, she was
subjected to a serious amount of sexual harassment which the
male employees were not subjected to.
COMPANY'S ARGUMENTS:
5.1 The Company denies that the claimant was treated less
favourably than a person of the other sex - there are
currently 52 employees and a normal average of about 70
employees in the Company. Of these, 50% are female. They
operate in the same working area as their male counterparts,
and are not discriminated against in any manner as regards
their working conditions. They have their own toilet and
washroom facilities and the same working conditions apply as
to shift work, short time and disciplinary measures. The
Company is fully unionised for over thirty years and the
rights of the employees etc. are fully protected within their
guidelines. The Company therefore submits that it has no
case to answer under Sections 2(a) and 3(4) of the Employment
Equality Act, 1977.
5.2 The Company submits that it took every reasonable steps to
deal with the allegation as soon as it was appraised of the
same. It is alleged that the first occurrence took place in
June 1986 and the first complaint was nearly a year later.
Evidence will be given as to the steps immediately taken by
the Company to investigate and pursue the allegation,
including requesting details of the incidents and direct
questioning and examinations of the person accused. The
claimant was asked to provide further information and to meet
the Company officials to discuss the same, but she did not
take up the offer.
5.3 The Company denies that any of the alleged harassments took
place, and will be calling direct evidence to refute the
same, and furthermore no other complaint of sexual harassment
was made by any other member of staff.
RECOMMENDATION:
ORDER:
The Court was asked to find that the worker had resigned from the
Company as a result of being sexually harassed by another (more
senior) member of staff; that this amounted to constructive
dismissal and was in contravention of Section 3(4) of the
Employment Equality Act of 1977.
In support of her allegations of sexual harassment the claimant
submitted, in writing and verbally, the history of a number of
incidents which she contended occurred during her period of
employment. In a number of these incidents specific witnesses
were named by the claimant.
In its consideration of the allegations the Court was presented
with a number of agreed facts.
(1) The claimant and her mother had met management to discuss the
issue.
(2) The Company had become aware of the name of the person
involved in the allegation.
(3) Apart from speaking to the claimant, her mother and the
person alleged as being responsible for the harassment, the
Company had undertaken no further measures in relation to the
complaint.
(4) Both sides agreed to a large extent on the circumstances
surrounding one particular incident.
In contrast to the above four agreed facts, the Court was also
presented with a list of alleged incidents, all refuted, and with
no corroborative evidence.
In relation to (3) above, it appears to the Court that if the
matter had been handled in a different manner by the Company
following the meeting the eventual outcome may well have been
different. It is questionable in the Court's opinion, having
regard to its well publicised guidelines in relation to sexual
harassment, as to whether it is sufficient for a Company to
discuss the allegations with a claimant, raise them with the other
party and then decide against the claimant. This particular
aspect of the case however is not one upon which the Court is
entitled to base a decision. Suffice to say that at the time of
the meeting the claimant behaved in a manner consistent with a
person who believed that she had a grievance and would have been
satisfied if even a general warning had been issued regarding
behaviour within the Company.
Apart from the agreed facts, the Court was confronted with a major
obstacle in its deliberations on the issue in that with one
exception, all of the witnesses who had been summoned to attend as
a result of being named by the claimant as witnesses to some of
the allegations, on oath gave evidence which in no way
corroborated the allegations except in relation to one specific
incident, i.e. (4) above.
In relation to the one case, referred to above, where there was
corroborated evidence the Court had to decide whether this
incident amounted to sexual harassment which resulted in
constructive dismissal as claimed. Having considered all the
facts related to that incident the Court is of the view that in
its content and gravity it did not amount to an act of sexual
harassment which warranted a claim for constructive dismissal.
The Court is aware of the difficulties for a Plaintiff in such
cases of producing witnesses as acts of sexual harassment usually
occur in private. Nevertheless the onus of proof lies with the
plaintiff, being the person who alleged the incidents took place.
In its investigation of all the incidents the Court afforded to
both parties an opportunity to elaborate on their submission and
to bring forward witnesses on their behalf. As stated earlier,
none of the witnesses corroborated any of the events detailed by
the claimant (the incident referred to above being exempted).
The Court considered all the evidence given by the claimant, her
mother and the one supportive witness. It also considered all the
evidence given by the remaining witnesses and the submissions made
by the legal representatives of the parties. Affording equal
weighting to all the submissions and having regard to where the
onus of proof lay the Court considers it would not be justified in
finding in the Plaintiff's favour.
The Court accordingly does not find the case for constructive
dismissal well founded and accordingly dismisses the claim.
~
Signed on behalf of the Labour Court
30th November, 1988 Evelyn Owens
DH/PG Deputy Chairman