Labour Court Database __________________________________________________________________________________ File Number: EED924 Case Number: EEO9211 Section / Act: S27EE Parties: A COMPANY - and - A WORKER;THE SERVICES INDUSTRIAL;PROFESSIONAL TECHNICAL UNION |
1977
Recommendation:
5. The Court, having considered the submissions made, is
satisfied that the employee concerned, who was a colleague of
workers to whom EEO391 applied, suffered the same harassment which
led to the Court finding in their favour and awarding
compensation.
However, the Court is of the opinion that account must be taken of
the fact that, for whatever reason, this employee voluntarily
attempted to repair her relationship with the general manager of
the Company and did return to work after completion of her
maternity leave. On her return the Court concludes that once
again the relationship deteriorated to the point that her eventual
decision to leave the employment may be considered to be
constructive dismissal.
The Court on this occasion has taken account of the defence
entered by the General Manager and is prepared to accept that the
harassment the worker suffered on her return was to a degree less
offensive than that which occurred prior to her maternity leave.
Taking this into account together with the fact that she
voluntarily offered to return to the work situation the Court in
her case is of the opinion that compensation to the amount of
#3,000 is appropriate and will make an order to pay the worker
that sum.
Division: Mr O'Connell Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
EED924 DECISION NO. EEO1192
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: A COMPANY
and
A WORKER
(REPRESENTED BY THE SERVICES INDUSTRIAL
PROFESSIONAL TECHNICAL UNION)
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 on
2nd January, 1984. Her duties included shorthand/typing, pricing
of invoices and other general office work. The worker ceased her
employment with the Company in February, 1992. The Company which
is a wholly owned subsidiary of a Dutch Company is run by a
General Manager and employed two female workers doing similar
duties to the worker concerned. A second Company operated from
the same premises using the same telephone number and had one
employee a Mr. B. The worker alleges that for a number of years
prior to 1990 she was subjected to continuous sexual harassment by
Mr. B. and that as a result of an undertaking given by the General
Manager in 1990, to exclude Mr. B. from the Company premises
during working hours, she was subjected by the General Manager to
discriminatory working conditions. These discriminatory working
conditions were demeaning and distressing to her, leaving her with
no option but to leave her employment.
The Company rejected the allegations of sexual harassment and
constructive dismissal and claims that the worker terminated her
own employment.
On 21st February, 1992, the Union on behalf of the worker referred
the complaint to the Labour Court ('Court') under Section 27 of
the Employment Equality Act, 1977. The Court heard the complaint
at a hearing on the 17th September, 1992, during the course of
which submissions on behalf of the worker and the Company were
read.
UNION'S ARGUMENTS:
3. 1. Prior to 1990, the worker was subjected to offensive
conduct of a sexual nature by Mr. B. The incidents included
intimate physical contact, physical sexual assault, harassment
of a sexual nature and crude and vulgar behaviour (details
supplied to Court) which caused offence and intimidated the
worker.
2. The worker complained to the General Manager about the
conduct of Mr. B. on many occasions, but her complaints went
unheeded until March, 1990, when the entire female staff of
the Company took industrial action in protest. The industrial
action took the form of a work stoppage and walk-out. The
female staff left the premises and informed the General
Manager that they would not resume working until Mr. B. was
removed or controlled. As a result of the industrial action,
the General Manager undertook to exclude Mr. B. from the
Company premises during working hours and did so.
3. Following the General Manager's undertaking to exclude Mr.
B. from the Company premises the worker's conditions of
employment deteriorated significantly. The General Manager
indulged in persistent verbal abuse of her and took every
opportunity to demean the worker. The worker was removed from
her more responsible office duties. There were frequent
demands on her to perform personal services for the General
Manager such as the preparation of breakfast and numerous cups
of coffee.
4. The worker was absent on maternity leave from December,
1990 to 6th May, 1991. When she returned to work two female
workers (those workers also made a claim under the Employment
Equality Act, 1977) had left the Company and Mr. B. had
resumed his former position in the Company. The worker sought
his removal from the premises. The General Manager laid down
conditions for his removal as follows:
(A) she would never again require maternity leave,
(B) never again require annual leave.
5. In the two week period following the worker's return after
maternity leave she was the subject of ridicule and scorn by
both the General Manager and Mr. B. The worker indicated to
the General Manager that the presence of Mr. B. in the office
presented a serious threat to her ability to continue to work
in the office. The General Manager's response was that she
was going to consult with the worker's husband.
6. The Union on behalf of the worker wrote to the General
Manager and she replied on 20th May, 1991, that the agreement
of March, 1990 would be honoured. Following the Union's
letter the animosity that manifested itself towards the worker
following the agreement of March, 1990, surfaced again.
7. The worker seeks compensation for the loss of her
employment and asks the Court to include an amount which would
be a penalty and deterrent to the employer.
COMPANY'S ARGUMENTS:
4. 1. To explain the allegations of sexual harassment made by
the worker against Mr. B. (not an employee of the Company) it
is necessary to compare the allegations with the normal
conduct of the person making the allegations. On a number of
occasion during the course of her employment it was necessary
to reprimand the worker, especially when it related to sexual
conversation. The extent of the vulgarity portrayed by the
worker was unacceptable (details supplied to Court). A former
colleague showed disgust at the vulgarity.
2. The worker was at all times a good worker but had a poor
attendance record. In recent years there was a marked
deterioration in her level of absence, averaging 15 days per
year. In 1990, a year in which she was pregnant, she was
absent 78.50 days.
3. The worker was absent so often in 1990 she suggested that
she would claim disability benefit and this she did for 3
weeks. Her disability benefits from the state were so small
that the Company resumed paying her full nett pay.
4. During all the periods of absence since 1984, the worker
received full pay from the Company without deduction of social
welfare benefits, with the exception a 3-week period in 1990.
5. No medical certificates were furnished during all the
periods of absence prior to 26th August, 1991, when the worker
was advised that, because of the level of her sick absence,
the Company was no longer in a position to continue making
payments equivalent to full nett pay.
6. In 1991, there was a deterioration in the Company's
economic situation due to a downturn in business and the
Company was no longer in a position to continue making
payments in respect of sick absence. A further consequence of
the Company's economic position was its inability to pay its
discretionary bonus in 1991.
7. The worker commenced submitting medical certificates but
no reference was made to the nature of the illness except on
one occasion. The Company sought by all reasonable means to
establish the substantive reason for the worker's sick absence
but failed to do so. The Company was led to believe that the
reasons for the absence were related to the worker's family
responsibilities.
8. In January, 1992, the Company sent the worker for an
independent medical examination. It was around this time that
the Labour Court made a decision in favour of a former
colleague of the worker. The worker tended her resignation
shortly after the Labour Court's decision. She chose the most
opportune time to resign.
9. Given the level of her absence subsequent to her maternity
leave, the worker did not appear to be committed to her work.
She gave the impression that as a consequence of her new
family responsibilities she was unlikely to stay very long
with the Company.
10. In the course of a conversation with the worker in
relation to the volume of work in the office it was stated,
that given that she could not understandably indicate when she
would be absent on maternity leave, consideration would have
to be given as to the best way to staff the office. There was
never any question that the worker would not receive her full
annual leave entitlements.
11. The Company's commitment to the worker is demonstrated by
the following:
(A) On every occasion that the General Manager was
abroad a present was brought back for the worker.
(B) Before the worker got married, a party was held for
her and several of her friends and colleagues were
invited.
(C) When her baby was born flowers were sent to the
hospital and a special gift was presented to her
baby.
(D) There was no particular motivation other than to
strengthen and acknowledge the good relationship
that always existed between the General Manager and
the worker.
12. All reasonable steps were taken to maintain satisfactory
working relationships. Supervision was maintained in so far
as reasonable in dealing with mature adult employees. No case
of constructive dismissal can be sustained.
DECISION:
5. The Court, having considered the submissions made, is
satisfied that the employee concerned, who was a colleague of
workers to whom EEO391 applied, suffered the same harassment which
led to the Court finding in their favour and awarding
compensation.
However, the Court is of the opinion that account must be taken of
the fact that, for whatever reason, this employee voluntarily
attempted to repair her relationship with the general manager of
the Company and did return to work after completion of her
maternity leave. On her return the Court concludes that once
again the relationship deteriorated to the point that her eventual
decision to leave the employment may be considered to be
constructive dismissal.
The Court on this occasion has taken account of the defence
entered by the General Manager and is prepared to accept that the
harassment the worker suffered on her return was to a degree less
offensive than that which occurred prior to her maternity leave.
Taking this into account together with the fact that she
voluntarily offered to return to the work situation the Court in
her case is of the opinion that compensation to the amount of
#3,000 is appropriate and will make an order to pay the worker
that sum.
~
Signed on behalf of the Labour Court
John O'Connell
__________________
14th December, 1992. Deputy Chairman.
F.B./J.C.