Labour Court Database __________________________________________________________________________________ File Number: EED917 Case Number: EEO925 Section / Act: S26(1)EE Parties: A COMPANY - and - A WORKER;THE SERVICE INDUSTRIAL;PROFESSIONAL AND TECHNICAL UNION (SIPTU |
The worker alleged that she had been constructively dismissed from her employment with the Company in breach of the Employment Equality Act, 1977 ('the Act') because she opposed by lawful means acts which are unlawful under the Act.
Recommendation:
(a) Under Section 3 of the Act, discrimination by employers is
prohibited. Under Section 2(d)(ii), discrimination is taken
to occur where a person is penalised for having in good faith
"opposed by lawful means an act which is unlawful" under the
Act.
The Court has already established in its order EED85/1 that
freedom from sexual harassment is a condition of work which
an employee of either sex is entitled to expect, and that any
denial of that freedom will be treated as discrimination
within the terms of the Employment Equality Act, 1977.
The Court is satisfied on the evidence presented by the
worker, which was uncontradicted, that the worker was indeed
subjected to sexual harassment of a most abusive kind while
in the employment of the Company. The Court is further
satisfied that the employer was aware of the harassment and
chose to ignore it until industrial action forced it to act.
It is irrelevant that the perpetrator of the harassment was
not an employee of the Company. He was on the Company
premises with the agreement of the employer and the employer
was in a position to protect the worker - a fact which was
borne out by the employer's agreement to ban Mr. B. from the
premises when industrial action was taken. In failing to
protect the worker against the harassment prior to the
industrial action, the employer had in effect imposed
discriminatory conditions of employment on the worker.
The industrial action to which the worker was a party in
March of 1990 was a lawful means of opposing the said
unlawful working conditions imposed on the worker.
The Court is satisfied that the ensuing conduct of the
General Manager, the evidence of which was again
uncontradicted, amounted to a penalisation of the worker for
the worker's lawful opposition to the harassment contrary to
Section 2(d)(ii) of the Act.
The Court is further satisfied that the said penalisation
resulted in the worker terminating her employment and
amounted to a constructive dismissal of the worker within the
meaning of Section 26(1) of the Act.
The Court is satisfied that the complaint is well-founded and
will make an order directing the employer to pay to the
worker compensation in the amount of £5,000
Division: Mr O'Connell Mr Keogh Ms Ni Mhurchu
Text of Document__________________________________________________________________
EED917 DECISION NO.EEO592
EMPLOYMENT EQUALITY ACT, 1977
SECTION 26
PARTIES: A COMPANY
and
A WORKER
REPRESENTED BY THE SERVICE INDUSTRIAL
PROFESSIONAL AND TECHNICAL UNION (SIPTU)
SUBJECT:
1. The worker alleged that she had been constructively dismissed
from her employment with the Company in breach of the Employment
Equality Act, 1977 ('the Act') because she opposed by lawful means
acts which are unlawful under the Act.
BACKGROUND:
2. The dispute was referred to the Labour Court ('the Court')
under Section 27 of the Act. However, the facts of the case fell
more properly under Section 26 of the Act, and the Court therefore
investigated the dispute as a complaint under Section 26 of the
Act.
The Court held its investigation at the Labour Court premises in
Dublin on 5th December, 1991. The worker was present and was
represented by SIPTU.
The Company was notified of the hearing by letter dated 31st
October, 1991 and on November 7th, 1991 was given details of the
allegations made against it. The Company responded by letter
dated 18th November, 1991 in which it claimed that the complaint
originated in an alleged sexual harassment of the worker by a
person who was not an employee of the Company. The Company
declined to attend the hearing as a party to the proceedings.
However, the General Manager of the Company, (who had written the
letter on behalf of the Company) stated that she would attend as a
witness only and in response to a Witness Summons issued against
her by the Court.
EVIDENCE:
3. The worker gave evidence to the Court that she was employed by
the Company in an administrative capacity from January, 1988 until
August, 1990. During the course of her employment she was
subjected to offensive conduct of a sexual nature by a Mr.B. The
incidents included intimate physical contact, physical sexual
asault, harassment of a sexual nature and crude and vulgar
behaviour which caused offence and intimidated the worker.
The worker confirmed that Mr. B. was not an employee of the
Company, but said that he was a person to whom the General Manager
of the Company had granted permission to use the Company's
premises and facilities for his own business purposes.
The worker told the Court that she had complained to the General
Manager about the conduct of Mr. B. on many occasions, but that
her complaints went unheeded until March of 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 continue working until Mr. B.
was removed or controlled.
As a result of that action, the worker said, the General Manager
undertook to exclude Mr. B. from the Company premises during
working hours and did so.
The worker gave evidence, however, that from the day the General
Manager agreed to exclude Mr. B. from the Company premises, her
working conditions were changed to her detriment. The General
Manager adopted an attitude of mistrust towards her, withdrew some
of her responsibilities, insisted on checking every order
prepared, gave incorrect instructions and then complained about
the result, criticised everything the worker did and took every
opportunity to demean and insult the worker. The General Manager
also insisted on the worker lifting boxes which greatly exceeded
the maximum weight which the worker could have been expected to
handle.
The worker was unable to tolerate the deterioration in her working
conditions and left the Company in August, 1991.
The worker claimed that she had been constructively dismissed by
the Company for her opposition to the harassment by Mr. B.
None of the allegations made by the worker were denied by the
Company. The General Manager of the Company, who attended the
Court in response to a Witness Summons issued by the Court, read a
statement to the Court as follows:-
"Chairman and Members of the Court
I wish to make it clear that as General Manager of (the
Company) this company will not involve itself in any matter
which has as its origin allegations against a person who is
not and never was an employee of this company. These
allegations are matters that fall to be dealt with directly
between those making the allegations and the person against
whom allegations are being made. This company in consequence
is not party to these proceedings.
Accordingly, while I am here in response to a witness summons
from the Chairman of the Court I will not respond to any
question that is either directly or indirectly associated
with the allegations at the origin of this issue.
The position of (the Company) has been advised to the Court
on a number of occasions over recent months most recently in
the letter dated October, 21st."
The witness told the Court that she was the General Manager
of the Company, and its principal representative in Ireland.
She refused to answer all further questions.
DECISION:
(a) Under Section 3 of the Act, discrimination by employers is
prohibited. Under Section 2(d)(ii), discrimination is taken
to occur where a person is penalised for having in good faith
"opposed by lawful means an act which is unlawful" under the
Act.
The Court has already established in its order EED85/1 that
freedom from sexual harassment is a condition of work which
an employee of either sex is entitled to expect, and that any
denial of that freedom will be treated as discrimination
within the terms of the Employment Equality Act, 1977.
The Court is satisfied on the evidence presented by the
worker, which was uncontradicted, that the worker was indeed
subjected to sexual harassment of a most abusive kind while
in the employment of the Company. The Court is further
satisfied that the employer was aware of the harassment and
chose to ignore it until industrial action forced it to act.
It is irrelevant that the perpetrator of the harassment was
not an employee of the Company. He was on the Company
premises with the agreement of the employer and the employer
was in a position to protect the worker - a fact which was
borne out by the employer's agreement to ban Mr. B. from the
premises when industrial action was taken. In failing to
protect the worker against the harassment prior to the
industrial action, the employer had in effect imposed
discriminatory conditions of employment on the worker.
The industrial action to which the worker was a party in
March of 1990 was a lawful means of opposing the said
unlawful working conditions imposed on the worker.
The Court is satisfied that the ensuing conduct of the
General Manager, the evidence of which was again
uncontradicted, amounted to a penalisation of the worker for
the worker's lawful opposition to the harassment contrary to
Section 2(d)(ii) of the Act.
The Court is further satisfied that the said penalisation
resulted in the worker terminating her employment and
amounted to a constructive dismissal of the worker within the
meaning of Section 26(1) of the Act.
The Court is satisfied that the complaint is well-founded and
will make an order directing the employer to pay to the
worker compensation in the amount of £5,000
~
Signed on behalf of the Labour Court
John O'Connell
30th March, 1992 --------------
J.F./U.S. Deputy Chairman