Labour Court Database __________________________________________________________________________________ File Number: EED9114 Case Number: DEE9213 Section / Act: S27EE Parties: A COMPANY - and - A WORKER;DOYLE LALOR AND COMPANY, SOLICITORS |
1977
Recommendation:
5. The Court sat on two separate days to hear this case and to
hear the witnesses called by both parties. The Court was assisted
by the provision of photographs of the washroom and shop areas
where the incidents in question were alleged to have taken place.
Having heard the evidence presented by the worker herself (M.S.)
and having heard the corroborative evidence of another worker
(D.D.) and of her boyfriend's Mother (Mrs. V.), the Court is
satisfied that an incident occurred in the washroom area of the
shop between the worker and her employer (T.D.) and that there
were marks on the worker's back and that she was distressed as a
result. T.D. claims he touched her to get her attention; M.S.
claims she ducked and turned away to avoid an attempt by T.D. to
touch her breasts and that he got her back instead.
In relation to a second allegation - that later that same day T.D.
felt the worker's breasts with his hands as she came towards him
from behind the shop counter - the Court is not satisfied with the
evidence to support this allegation. Neither A.H. nor D.D., who
were on the premises at the time were aware of or informed of the
incident. Other workers in the area were not called as witnesses
by either party.
In relation to the working environment and the allegations that
there was a continuous series of harassment, comments and conduct
of a sexual nature, there was a complete conflict of evidence
between M.S. and T.D.
The Court has heard the evidence presented by the worker and the
witnesses on her behalf (three former employees), and the evidence
presented by witnesses on behalf of Mr. D. (both current and
former employees going back some years). After much consideration
of the evidence, and having assessed the credibility of the
various witnesses, and taking into account the fact that the two
supervisors categorically denied having received complaints, the
Court has come to the conclusion that the evidence is insufficient
to sustain the allegations made. The allegations made by the
employer against the worker were not sustained by the evidence
either.
In conclusion, the Court is not satisfied that the complaint is
well-founded and that there was a breach of Section 3(4) in
relation to the termination of the worker's employment.
Given these conclusions, the Court has to decide whether or not
the incident in the washroom was in fact sexual harassment and
whether it justified the worker leaving her employment and seeking
compensation for constructive dismissal under Section 27 of the
Employment Equality Act.
While the Court accepts that Mr. D. did touch and mark the
worker's back and that she was upset as a result, the Court is
unable to accept that the conduct complained of comes within the
scope of sexual harassment namely verbal or physical conduct of a
sexual nature. Such conduct is not acceptable in a work
environment, but it does not fall to be considered under Section
27 of the Employment Equality Act.
The Court accordingly does not find that the employer has
contravened Section 3(4) of Employment Equality Act, 1977 and
therefore no breach of Section 2(a) of the Act occurred.
Division: Ms Owens Mr Keogh Ms Ni Mhurchu
Text of Document__________________________________________________________________
EED9114 DETERMINATION NO. DEE1392
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: A COMPANY
(REPRESENTED BY McCANN FITZGERALD, SOLICITORS)
and
A WORKER
(REPRESENTED BY DOYLE LALOR AND COMPANY, SOLICITORS)
SUBJECT:
1. Alleged dismissal of a worker under Section 27 of the
Employment Equality Act, 1977.
BACKGROUND:
2. The worker concerned commenced employment with the Company in
August, 1990 as a shop assistant. She worked at the Company's
premises in Moore Street from August, 1990 to January, 1991 and
from March, 1991 to August, 1991, and at Camden Street from
January, 1991 to March, 1991.
3. The worker alleged that during her employment she was sexually
harassed by the Managing Director and that his conduct was
offensive to her. The sexual harassment alleged by the worker to
have taken place included instances of physical touching and the
use of crude language with sexual connotation. She claimed that
as a result of the sexual harassment she was forced to resign from
her job on 20th August, 1991.
4. The Company strongly denied the allegations.
5. The complaint was referred to the Labour court by the worker's
legal advisers on 18th September, 1991. A Labour Court
investigation took place on 19th March, 1992 and 5th May, 1992,
during the course of which submissions on behalf of the worker and
the Company were read. In the course of the investigation the
Court heard evidence of fifteen witnesses and was also given
photographic evidence.
WORKER'S ARGUMENTS:
3. 1. The worker's employment with the Company was her first
real job which she liked but was forced to leave as a result
of sexual harassment by the Managing Director. Incidents took
place over a period of time which culminated with two specific
incidents on 17th August, 1991 (details supplied to the
Court).
2. Incidents were reported to the worker's supervisors on a
regular basis. One supervisor told her not to worry and that
nothing would happen to her while she was around.
3. A former employee of the Company had been forced to leave
the employment because of sexual harassment.
4. The incidents that occurred on 17th August, 1991 involved
physical contact by the Managing Director and as a result the
worker's back was marked. A colleague confirmed this.
5. The worker attended for work on 20th August, 1991 at 8.45
a.m. but left at about 9.30 a.m. when she became distressed.
She decided that she could not take any more of the type of
treatment she had received.
6. Several phone calls were made to the Company on behalf of
the worker on 20th August, 1991, complaining at the treatment
the worker had received. During one of the calls the manager
of the shop where she had worked admitted that what had
occurred to her on 17th August, 1991 had been "a disgrace".
COMPANY'S ARGUMENTS:
4. 1. The Company categorically denies the allegations of
improper conduct as set out in the statement of the worker
dated 31st August, 1991.
2. The worker was not dismissed by the Company but left her
employment voluntarily and without justification.
3. The worker was transferred from Moore Street to Camden
Street to replace another employee who had left. Her
performance in Camden Street was unsatisfactory in many
respects and she was re-assigned to Moore Street. The worker
resented this and on several occasions informed the supervisor
that she intended to leave. At no time prior to the 17th
August, 1991 did the worker make any allegations to any of her
superiors of improper conduct on the part of the Managing
Director.
4. The worker appeared to be experiencing some difficulties
in her own family home and frequently arrived for work in a
tearful and distraught condition. She explained this to her
supervisor as being due to arguments and disagreements with
her father. On such occasions the worker was advised against
bringing her personal problems into her employment. The
supervisor would not allow the worker on to the shop floor
until she had calmed down.
5. The worker caused concern and upset to management and her
fellow - employees (male and female) by referring audibly and
in a crude manner to her own medical problems and those of her
boyfriend. She was reprimanded by the Managing Director in
respect of such conduct on at least two occasions.
6. The worker has referred to another former employee (name
supplied to the Court). This employee had been introduced to
the Company by the worker concerned, and stayed with the
Company for only two weeks. She was not heard from again
until this complaint was made, about twelve months later. The
Managing Director has no recollection of the former employee
but categorically denies the allegations contained in her
statement dated 31st August, 1991.
7. The Managing Director does not work in close proximity to
any of the shop assistants nor, as already indicated do his
hours of work largely coincide with theirs. He is satisfied
that he was never at any time alone with the worker concerned
in any part of the premises during her employment.
8. On 17th August, 1991 the Managing Director arrived in the
shop at 2.30 p.m. On his arrival he engaged in conversation
with the manager of the shop near a wash-up area at the rear
of the shop and at the bottom of the staircase leading to the
upper floors. This area is fully visible from both the shop
and bakery area. The worker concerned came into the area to
wash up trays, etc. The Managing Director asked the worker to
go to the cafe next door for coffee. Due to the level of
noise in the area the worker did not hear the Managing
Director's request. She had her back towards him and as she
left the area he tapped her on the shoulder and repeated his
request. She went for the coffee and on her return resumed
her duties in the shop. At no time during that day did the
worker give any sign that she resented the Managing Director
having tapped her on the shoulder or that she had any
complaint whatsoever in relation to the conduct of the
Managing Director. Before she left the shop at about 6.30
p.m. she confirmed with the manager that Monday, 19th August,
1991 would be her day off for the following week.
9. The worker alleges that, subsequent to the alleged
incident she was told by a work colleague that her back was
"full of scratches". Her colleague confirmed that the worker
showed him her back and made an allegation that the Managing
Director "is after grabbing me upstairs" but all he saw was a
small red mark on the worker's lower back. He left on
holidays that same afternoon without reporting his discussion
with the worker to any other person.
10. On Tuesday 20th August, 1991 the worker's mother phoned
the Managing Director and accused him of "touching her
daughter's breasts". This was the first time that such an
allegation had been made and it was denied by the Managing
Director. The Managing Director heard the worker crying in
the background.
11. The Company believes that the worker terminated her own
employment when one of her fellow workers (name supplied to
the Court) became aware that she had confessed to another
employee that she had taken money from the till at the shop in
Moore Street. This information first came to the attention of
the Company on 28th/29th February, 1992.
12. Present and former employees of the Company have stated
that the Managing Director always treated them with respect.
DETERMINATION:
5. The Court sat on two separate days to hear this case and to
hear the witnesses called by both parties. The Court was assisted
by the provision of photographs of the washroom and shop areas
where the incidents in question were alleged to have taken place.
Having heard the evidence presented by the worker herself (M.S.)
and having heard the corroborative evidence of another worker
(D.D.) and of her boyfriend's Mother (Mrs. V.), the Court is
satisfied that an incident occurred in the washroom area of the
shop between the worker and her employer (T.D.) and that there
were marks on the worker's back and that she was distressed as a
result. T.D. claims he touched her to get her attention; M.S.
claims she ducked and turned away to avoid an attempt by T.D. to
touch her breasts and that he got her back instead.
In relation to a second allegation - that later that same day T.D.
felt the worker's breasts with his hands as she came towards him
from behind the shop counter - the Court is not satisfied with the
evidence to support this allegation. Neither A.H. nor D.D., who
were on the premises at the time were aware of or informed of the
incident. Other workers in the area were not called as witnesses
by either party.
In relation to the working environment and the allegations that
there was a continuous series of harassment, comments and conduct
of a sexual nature, there was a complete conflict of evidence
between M.S. and T.D.
The Court has heard the evidence presented by the worker and the
witnesses on her behalf (three former employees), and the evidence
presented by witnesses on behalf of Mr. D. (both current and
former employees going back some years). After much consideration
of the evidence, and having assessed the credibility of the
various witnesses, and taking into account the fact that the two
supervisors categorically denied having received complaints, the
Court has come to the conclusion that the evidence is insufficient
to sustain the allegations made. The allegations made by the
employer against the worker were not sustained by the evidence
either.
In conclusion, the Court is not satisfied that the complaint is
well-founded and that there was a breach of Section 3(4) in
relation to the termination of the worker's employment.
Given these conclusions, the Court has to decide whether or not
the incident in the washroom was in fact sexual harassment and
whether it justified the worker leaving her employment and seeking
compensation for constructive dismissal under Section 27 of the
Employment Equality Act.
While the Court accepts that Mr. D. did touch and mark the
worker's back and that she was upset as a result, the Court is
unable to accept that the conduct complained of comes within the
scope of sexual harassment namely verbal or physical conduct of a
sexual nature. Such conduct is not acceptable in a work
environment, but it does not fall to be considered under Section
27 of the Employment Equality Act.
The Court accordingly does not find that the employer has
contravened Section 3(4) of Employment Equality Act, 1977 and
therefore no breach of Section 2(a) of the Act occurred.
~
Signed on behalf of the Labour Court
Evelyn Owens
______________________
20th August, 1992. Deputy Chairman
F.B./J.C.