Labour Court Database __________________________________________________________________________________ File Number: EED908 Case Number: EEO924 Section / Act: S27EE Parties: A COMPANY - and - A WORKER;MR. GERRY DURKAN, B.L., INSTRUCTED BY;THE EMPLOYMENT EQUALITY AGENCY |
Alleged constructive dismissal of the worker under Section 27 of the Employment Equality Act, 1977.
Recommendation:
The Court is satisfied that the complaint referred under
Section 27 of the said Act is well-founded and will make an
order directing the Company to pay the worker by way of
compensation a sum of #4,000 which, in all the
circumstances of the case, the Court deems reasonable.
Division: Mr Heffernan Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
EED908 ORDER NO. EEO492
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: A COMPANY
(Represented by Mr. Charles Meenan, B.L., instructed
by J.G.O'Connor & Co., Solicitors)
AND
A WORKER
(Represented by Mr. Gerry Durkan, B.L., instructed by
the Employment Equality Agency)
SUBJECT:
1. 1. Alleged constructive dismissal of the worker under
Section 27 of the Employment Equality Act, 1977.
BACKGROUND:
2. 1. The worker (name supplied to the Court) was employed by
the Company as secretary to the General Manager from 19th
August, 1985 to 28th February, 1990, on which date she alleged
that she was constructively dismissed from her employment.
Her annual salary at that time was #10,500.
2. The worker alleged that during her employment she was
sexually harassed by both the Company Secretary (name supplied
to the Court) and the General Manager (name supplied to the
Court) and that their conduct was offensive and intimidating
to her and that it adversely affected her health. The sexual
harassment alleged by the worker to have taken place included
instances of physical touching, assault, the use of crude
language with sexual connotation, the display of an offensive
calendar and a double-meaning message conveyed in a Christmas
card. She claimed that as a result of the sexual harassment
she was forced to resign from her job.
3. The Company strongly denied the allegations.
4. The complaint was referred to the Labour Court by the
Employment Equality Agency on behalf of the worker on 27th
August, 1990. Labour Court investigations took place on 2nd
May, 1991 and 30th May, 1991.
AGENCY ARGUMENTS:
3. 1. The worker was forced to leave her employment as a
result of sexual harassment (details of the alleged sexual
harassment were supplied to the Court).
2. The worker attended a doctor as a result of her difficulties
at work and the doctor diagnosed that she was suffering from
depression because of the harassment (details supplied). The
doctor advised the worker to secure another job before
resigning her position. The worker's distress was such that,
despite not having found other work, she resigned with effect
from 28th February, 1990.
3. The worker had complained of her treatment when the previous
General Manager (name supplied to the Court) was in office (up
to January, 1989) and the harassment lessened considerably for
the remainder of his time in office. Upon the appointment of
the new General Manager in January, 1989 the harassment began
again.
4. Section 2(a) of the Employment Equality Act, 1977 states that
for the purposes of the Act discrimination shall be taken to
occur:
"Where by reason of his sex a person is treated less
favourably than a person of the other sex".
A man was not and would not be treated in the way that the
worker was allegedly treated. No male worker was subjected to
this abusive treatment; no man was therefore placed in the
difficult position of having to deal with this inappropriate
behaviour; no man had to face the consequences of a negative
response to this behaviour. Thus the worker was treated less
favourably than a man. Furthermore the employer contravened
Sections 3(1) and 3(4) of the 1977 Act by subjecting the
worker to abusive working conditions and this discriminatory
treatment ultimately forced her to leave.
5. The worker is seeking an unreserved apology from the
respondent and the payment of compensation in respect of her
discriminatory dismissal and consequent loss of earnings and
career opportunity. The worker is further seeking the award
of a sum of money in respect of the humiliation, anxiety and
distress caused by the abusive behaviour towards her, by the
offensive environment in which she worked and by her
discriminatory dismissal.
COMPANY ARGUMENTS:
4. 1. The Company is a manufacturer, and the nature of the
business is that workers have to work under extreme pressure
at times to meet deadlines and as a result the use of coarse
language, including language with sexual connotations is not
unusual. This may not be an ideal situation, but it is a fact
of working life under which the worker was employed without
complaint for a period of 5 years. The worker was not
harassed or discriminated against by the use of coarse
language; she was, by the evidence of her colleagues, a
participant in this regard. The Company denies the
accusations of sexual harassment laid against it.
2. The General Manager, now living in Jamaica, was consulted and
has denied that the worker was ever subjected to sexual
harassment either by himself or the Company Secretary. He is
further unaware of any complaint of sexual harassment. The
previous General Manager was also consulted and confirmed that
there was one complaint concerning the use of crude language
made to him. Although the worker was the General Manager's
secretary at the time and occupied a room beside him, he was
unaware of the allegations now being made. Neither were any
of these allegations made to fellow staff members. The
worker's letter of resignation made no reference to the
matters now alleged. After her resignation, the worker sought
and was given a reference for a prospective employer.
3. It is submitted that to come within section 2(a) of the
Employment Equality Act, 1977, the complainant must establish
that she has been treated "less favourably than a person of
the other sex" and that the reason for such treatment was as a
result of her sex. On the evidence of the worker's own
behaviour it cannot be said there was discrimination. As
there was no discrimination, the sex of the complainant is not
relevant. The worker used coarse language and therefore she
could not reasonably claim that she was in any way
discriminated against or harassed if such language was used
against her.
FINDINGS:
5. 1. For it to be established that the conduct complained of
was discrimination by what amounted to sexual harassment,
the worker must establish either directly or on the
balance of probabilities that the alleged conduct took
place, that it was offensive to and unwanted by her, and
that the alleged perpetrators knew or could reasonably
have been expected to know that it was offensive and
unwanted.
To establish constructive dismissal, the worker must show
that, in the circumstances of the case, the only
reasonable course open to her was to resign.
2. The Company denied that the worker was subjected to sexual
harassment. It claimed that such incidents as it
acknowledged were in the nature of office banter, repartee
and jest, and that they were in keeping with the
relationship between the parties concerned and the easy
atmosphere that existed in the office generally. The
Company also stated that the worker had never complained
of harassment during her employment and had made no
reference to it in her letter of resignation. The Company
considered that an adverse work assessment which she
received some days beforehand was a possible cause of her
resignation. The General Manager understood from her that
she was leaving to take up another job and responded to
her subsequent request for an appropriate work reference.
3. It was evident to the Court that the comments acknowledged
by the then Company Secretary, his acknowledged habit of
placing his hand on the worker's shoulders when standing
behind her desk, the display of an explicit calendar and a
Christmas Card message, had sexual connotations and, if
offensive to the worker concerned, constituted sexual
harassment. To claim that such matters were in keeping
with the easy atmosphere of the office generally is not an
acceptable defence for such conduct. Irrespective of the
attitude of other workers to such matters, each employee
has the right to a work environment free from sexual
harassment and therefore has the individual right to
determine whether and from whom, if anybody, she will
accept such conduct. To exercise this right, however, the
worker must make known to the offender that his conduct is
unwanted.
4. The worker, in her evidence, stated that she had
complained to the previous General Manager about her
treatment by the Company Secretary. She objected to the
alleged perpetrators regarding the various incidents as
they occurred, but she had no avenue of formal complaint
because the people against whom she was making her
allegations, apart from being her line-superiors, were
also the top management of the Company. She claimed she
resigned because of continuing sexual harassment and
because she had no effective means of ending it. The
worker stated that her decision to resign pre-dated the
work-assessment mentioned by the Company.
The worker also stated in her evidence that she did not
resign for the purpose of taking up another job. Having
resigned, however, it was necessary for her to seek
alternative employment. She started a courier business
almost immediately but it failed after three weeks. She
did not find alternative employment until June, 1990.
5. As is common in cases of alleged sexual harassment there
is no direct corroborative evidence that many of the
incidents complained of actually took place. In relation
to those acknowledged by the Company, there is conflicting
evidence as to their context, and as to whether the worker
clearly indicated that she regarded them as offensive.
In the absence of any direct corroborative evidence, the
Court must consider such other evidence as was provided,
and then must make a judgement based on the balance of
probabilities.
6. There was a conflict of evidence regarding many of the
worker's allegations but there was also important
confirmation of some of her statements.
- The Company Secretary acknowledged some of the
alleged comments, agreed that he touched her
physically on the shoulders while she was working
at her desk, and confirmed the existence of an
offensive calendar.
- An offensive Christmas message from the General
Manager was not disputed, and in fact it was
presented to the Court.
- The former General Manager gave evidence that the
worker had complained to him regarding the Company
Secretary's use of crude language to her and that
he had instructed the Company Secretary to desist
from the use of such language.
- The worker's doctor in evidence, confirmed her
debilitated state of health prior to her
resignation, and stated that under questioning she
had told him that the cause of her depression was
sexual harassment to which she was being subjected
by her boss. The worker also told him she was
contemplating resignation because of her treatment.
The doctor confirmed that her medical condition was
consistent with her explanation.
The Court also noted that two statements of the worker
were contradicted in the evidence of colleagues.
- Two female colleagues of the worker repudiated her
suggestion that they too had been subjected to
sexual harassment by the Company Secretary.
- Two other colleagues denied the worker's claim that
she had told them at her farewell drinks party she
had been subjected to sexual harassment by the
Company Secretary.
The Court considered that the direct evidence given by the
worker was dispassionate, forthright and consistent and,
when taken in conjunction with supportive evidence, was
compelling. The Court considered that, on balance, this
evidence outweighed any doubts created by the evidence of
her colleagues on the two issues mentioned above.
7. In his evidence, the Company Secretary, against whom the
majority of allegations were made, denied that any of his
comments or actions could constitute sexual harassment.
While he agreed that he made some of the alleged comments,
acknowledged his habit of placing his hand on the worker's
shoulder when standing behind her desk, and stated that
some of the other alleged incidents had occurred, he denied
that any of these matters had a sexual connotation and
claimed they were in keeping with the relationship which he
believed he had with the worker and with the easy
atmosphere that existed in the office generally. He did
not recall having been spoken to by the previous General
Manager concerning his language to the worker.
The Company Secretary's evidence displayed a lack of
awareness on his part of the possible difference between
the intent of his conduct and its effect on the worker. It
also displayed an absence of appreciation on his part of
what constituted sexual harassment and the rights of the
worker to a work-environment free from it. In the Court's
view his statement that his comments did not have a sexual
connotation or innuendo, was, at best, naive. He could
reasonably have been expected to recall being spoken to by
the former General Manager concerning his use of language
to the worker. Because of that admonition and having
regard to the superior/subordinate position which he held
in relation to the worker, he could reasonably have been
expected to take a positive approach to ensure that her
rights were not infringed by him in their subsequent
relationship. In view of these considerations his evidence
was less compelling than that of the worker, and the Court
considered that her account of events was more credible.
8. In a sworn affidavit the General Manager stated that he had
never been guilty of sexually harassing the worker but made
no reference to the Christmas Card message, which clearly
had a sexual connotation. The Court considered that he
could reasonably have been expected to know that the
message was offensive to the worker. His absence from the
Court hearing meant that part of the worker's complaint
was left unanswered. In the circumstances, the Court had
reservations regarding the completeness of the General
Manager's statement.
9. Having considered the totality of the evidence presented,
the Court is satisfied that the worker was subjected to
sexual harassment by both the Company Secretary and the
General Manager that their conduct was offensive to her and
that they could reasonably have been expected to know that
she objected to it. The Court is also of the view that
there was no reasonable avenue of complaint open to the
worker following the departure of the previous General
Manager. In those circumstances, the Court is satisfied
that the worker was left with no reasonable alternative but
to resign.
Accordingly the Court finds that there was a contravention
of Section 3(4) of the Employment Equality Act, 1977 and
that there was discrimination of the worker leading to her
constructive dismissal from her employment.
ORDER:
The Court is satisfied that the complaint referred under
Section 27 of the said Act is well-founded and will make an
order directing the Company to pay the worker by way of
compensation a sum of #4,000 which, in all the
circumstances of the case, the Court deems reasonable.
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Signed on behalf of the Labour Court
Kevin Heffernan
------------------
9th March, 1992
J.F./U.S. Chairman