Labour Court Database __________________________________________________________________________________ File Number: EED901 Case Number: EEO902 Section / Act: S27EE Parties: A COMPANY - and - A WORKER;MR. ERCUS STEWART, S.C. INSTRUCTED BY;JOHN J TULLY AND CO. SOLICITORS |
A dispute in relation to the alleged constructive dismissal of the worker in contravention of Section 3(4) of the Employment Equality Act, 1977.
Recommendation:
This is not available on database.
Division: CHAIRMAN Mr McHenry Ms Ni Mhurchu
Text of Document__________________________________________________________________
EED901 ORDER NO.EEO290
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: A COMPANY
(Represented by Mr Frank Callanan B.L. instructed by
ROGER BALLAGH AND CO. SOLICITORS)
and
A WORKER
(Represented by Mr. Ercus Stewart, S.C. instructed by
JOHN J TULLY AND CO. SOLICITORS)
SUBJECT:
1. A dispute in relation to the alleged constructive dismissal of
the worker in contravention of Section 3(4) of the Employment
Equality Act, 1977.
BACKGROUND:
2. 1. The worker concerned (name supplied to the Court)
commenced employment with the Company on 29th February, 1988 at
#145.00 per week net and ceased her employment there on 1st
August, 1989. She claims that during her period of employment she
was sexually harassed and seriously sexually assaulted by a
Director of the Company (details supplied to the Court). The
worker further claims that she was forced to resign from her
employment because of the assault and sexual harassment. She is
seeking compensation.
2. 2. The employer (name supplied to the Court) rejected the
allegations of assault and of sexual harassment (details supplied
to the Court).
2. 3. On 19th January, 1990 the worker referred the complaint to
the Labour Court under Section 27 of the Employment Equality Act,
1977. The Court investigated the complaint on 23rd April, 1990,
during the course of which submissions were read and evidence,
including oral evidence, was presented on behalf of both the
employer and the worker.
WORKER'S ARGUMENTS:
3. 1. The worker was forced to leave her employment by reason
of repeated and unwarranted sexual harassment during her
period of employment. The worker described in detail
incidents alleged to have occurred during that time. The
important points of the alleged harassment were as follows:
A. The Director initially sought to date her. She did
not accept his invitation.
B. The Director, during the course of business and without
prior arrangement, took her out for a meal in an hotel, then
booked a bedroom without her agreement.
C. On a number of occasions he came uninvited to her
bedroom in the hotel where she worked. On some of these
occasions he undressed and on the final occasion on 28th July,
1989 he sexually assaulted her (full details supplied to the
Court).
3. 2. Sexual harassment clearly comes within constructive
dismissal as defined in Section 29 of the Employment Equality
Act, 1977 i.e.
"'dismissal' shall be taken to include the
termination by an employee of her contract of
employment with her employer (whether prior
notice of the termination was or was not
given to the employer) in circumstances in
which, because of the conduct of the
employer, the employee was or would have been
entitled to terminate the contract without
giving such notice, or it was or would have
been reasonable for her to do so, and
'dismissed' shall be construed
accordingly;"".
The worker was entitled to terminate her employment without
notice because of the unwanted physical and verbal harassment
to which she was subjected. She is entitled to safe
employment.
3. 3. The worker does not find re-instatement or re-engagement
a feasible option in obtaining redress. Accordingly, the
Court is asked to order that the employer pay to the worker,
such compensation as it considers reasonable in the
circumstances.
EMPLOYER'S ARGUMENTS:
4. 1. The employer denies that the worker was either sexually
assaulted or sexually harassed as alleged. The employer
alleges that there was a consensual sexual relationship
between the Director and the worker concerned, that he went to
her bedroom at her request and that he did not sexually harass
or force his intentions on her. The sexual relationship ended
in June 1989.
4. 2. The employer claims that the worker was not dismissed
and that the Director's conduct in relation to the worker did
not at any time provide grounds for her claim of constructive
dismissal.
4. 3. The employer alleges that the worker resigned because
she was dissatisfied with a work re-organisation and new
supervisory arrangements.
COURT FINDINGS:
5. In this case, to establish constructive dismissal, the worker
must convince the Court, through direct corroboration or on the
balance of probability, that the employer acted in a manner that
left her with no reasonable alternative but to terminate her
employment. There is no corroborative evidence that particular
events took place on 28th July as alleged by the worker and they
are denied by the employer. In the absence of corroborative
evidence for either side, the case rests on the balance of
probability which in turn depends on the credibility which the
Court ascribes to both the worker and the employer, having heard
the full submissions of both sides.
Having considered all aspects of the case at length and having
heard all persons appearing to be interested and desiring to be
heard, the Court is satisfied that there is greater credibility on
the side of the worker and that the complaint is well founded and
finds that the worker was constructively dismissed contrary to
Section 3(4) of the Employment Equality Act, 1977. The Court
therefore will make an order directing the employer to pay to the
worker the sum of #9,000 compensation.
REASONS:
1. Throughout the hearing which lasted some twelve hours, the
worker did not waver on any important factor of her
complaint. On the contrary, when stressed by the questioning
she responded with greater detail on events which were
clearly painful. Her recall of events was orderly and
precise. There was a ring of truth to her account of events
and a directness in her answers on issues where at best she
had been naive or ignored danger.
The Court considered it important that in evidence, her
doctor stated that her medical history was consistent with
the account she had given at the hearing.
Conversely, the Director, while he might not be expected to
remember dates or happenings with the same accuracy, was
particularly vague about matters which he would reasonably be
expected to recall and thus his testimony was less
compelling.
2. There was a complex relationship between the worker and the
Director concerned. In the business context, he included her
in a small number of employees who had access to sensitive
business information, the disclosure of which could be
damaging. This afforded her a position of some small
privilege as demonstrated by her unusual freedom in relation
to time-keeping and the fact that, though claiming to be
critical of her work performance, the Director did not at any
time attempt to dismiss her. On the contrary, he ignored the
threats to resign which she made on a number of occasions.
In fact, her position of privilege as perceived by other
staff was more illusory than real because of her personal and
economic need to retain her job and because of her health and
emotional condition. Some of these limitations were known to
the Director. He refused to give her a salary increase when
she requested it but instead offered her accommodation at the
hotel and also offered to pay her car-parking. The Court
believes that she would not have resigned for any of the
work-related reasons which the employer or other witnesses
put forward as possible explanations for her leaving her
employment.
3. The Director admitted to a sexual interest in the complainant
and to initiating, pursuing and fulfilling that interest. He
claimed as a defence that all his actions were with the
consent of the claimant.
In considering the question of consent, and in view of the
worker's denial of consent, the Court must have regard to the
Director's dominant position in the employment relationship
with all the power inherent in that position, the fact that
he took advantage of the work related arrangements in the
hotel, to the fact that he did not have a social relationship
with the worker outside of the work place, and that he was
aware of the personal vulnerability of the worker. In these
circumstances, the Court does not accept the claim of
consent.
The Court is convinced that the events of 28th July did take
place as described by the worker and is influenced in its
view by the medical evidence, the actions of the worker in
the days immediately after that date and by earlier events.
The Court is also convinced that the actions of the Director
on 28th July did not have the consent of the worker even if,
as claimed by him, earlier actions had such consent.
A sexual relationship between consenting adults does not
imply that that consent is unlimited as regards either time-
scale or acts which may take place between the parties. Each
party has a continuing right to place limitations on what
acts may take place and when they may take place, and also a
right to withdraw consent totally. These rights acquire the
protection of the Employment Equality Act, 1977, when the
parties concerned are in a relevant employment situation.
Consent may be varied at will and, provided the other party
is made aware or should be aware of the position, any act
committed outside of the immediate consent is in breach of
the 1977 Act.
4. The Court understands the compelling need which existed for
the worker to retain employment. However, the Court
considers that she was imprudent to leave herself at risk
over an extended period and that she should not have relied
to such a degree on her own resourcefulness to protect
herself in recurring circumstances of obvious and serious
danger, despite the difficulty and unpleasantness which
dealing with it would have involved for her. She should have
sought counsel and assistance to find a remedy or redress for
her situation. The Court has taken account of this aspect in
its determination of compensation.
ORDER:
This is not available on Database.
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Signed on behalf of the Labour Court
29th June, 1990 Kevin Heffernan
A McG/U.S. ____________________
Chairman