Labour Court Database __________________________________________________________________________________ File Number: EED926 Case Number: EEO935 Section / Act: S27EE Parties: A COMPANY - and - A WORKER;DAMIEN TANSEY AND COMPANY SOLICITORS |
Dispute in relation to alleged unfair dismissal of a worker in contravention of Sections 3(1) and 3(4) of the Employment Equality Act, 1977.
Recommendation:
The Court has examined the details of this complaint lodged
pursuant to Section 27 of the Employment Equality Act, 1977. The
Court received written submissions from the parties and oral
evidence was submitted at hearings held on 26th November, 1992 and
4th February, 1993. The Court heard direct evidence from 9
witnesses (inclusive of Complainant and Respondent) from either
side.
Section 27(1) of the Employment Equality Act, 1977 states:-
"A dispute as to whether or not there has been a
contravention of Section 3(4) in relation to the dismissal of
a person may be referred to the Court by that person".
Section 3 of the Act prohibits discrimination by employers
and 3(4) sets out when a person shall be taken to
discriminate against an employee and includes such items as
same working conditions and dismissals.
The Court was presented with a considerable amount of
contradictory evidence from the parties. In addition some
witnesses who appeared before the Court submitted diametrically
opposite accounts of what took place. The Court therefore had
considerable difficulty in establishing facts and had to make a
value judgement on much of the evidence.
The Complainant stated she was dismissed on the 16th September,
1991. The Management stated that she was given 1 weeks notice by
the Centre Manager and details as to unsatisfactory work. It was
also pointed out that she was still within her probationary
period. She was subsequently interviewed by Mr McG (Manager of
Hotel). Mr McG in evidence stated that during that interview Ms.
F said 1 week was short notice and asked for an extension of 1 to
2 weeks. He agreed and gave her three weeks. In support of this
statement a duty roster showing Ms. F as rostered for a further 3
weeks was produced. Mr McG in evidence also stated that in his
view the notice was intended as a warning. Whether it was or not
cannot be established but the Court accepts that Ms. F concluded
that she was being dismissed. Her conclusion is supported by her
subsequent action in informing her mother, going with her to
Bundoran to see the owner of the hotel the following day and again
on another occasion and furthermore in seeking advice from a
practising solicitor, who represented her before the Labour Court.
The Court then had to examine the evidence from both parties as to
whether or not a dismissal took place and in particular if
dismissal did take place to examine Ms. F's contention that the
reason was her refusal to respond favourably to Mr. C's advances
which she alleges were of a sexual nature and amounted to sexual
harassment. The Labour Court has in EEO285 (Garage Proprietor V a
Worker) stated:
"Freedom from sexual harassment is a condition of work which
an employee of either sex is entitled to expect. The Court
will accordingly treat any denial of that freedom as
discrimination within the terms of the Employment Equality
Act, 1977".
Mr. C. claimed that at the time of giving Ms F notice he listed
reasons pertaining to her work performance. The Hotel Manager Mr.
McG agreed with this. At no time when being given reasons for her
dismissal did she allege approaches and harassment by Mr C. The
first intimation of such allegations seems to have been made at an
interview between Mr McE and the complainant's mother. The time
lapse between the alleged incident and dismissal was 14th
July/16th September.
The burden of proof falls on the complainant, the nature of the
proof being to establish that on the balance of probability the
alleged harassment did take place, and led to a breach of trust
between employer and employee, which resulted in the dismissal.
As already stated the Court was confronted with seriously
conflicting evidence. Mr C denies all charges and submitted that
Ms. F was neglectful of her duties and had been spoken to on
several occasions about her lapses. There was some corroborative
evidence in support of his position.
Witnesses called on behalf of Ms. F who were employed at the time
in the complex could not give the Court any positive evidence in
support of Ms F's evidence. It would seem to the Court that if
the harassment took place, Ms F did not tell any of her colleagues
about it. Neither was any evidence submitted that other female
employees had any similar problem with Mr C.
The alleged incident on the night of 14th July, 1991 when
complainant and respondent attended a disco attached to the hotel
along with other members of staff, was central to the claim.
Whether Mr. C did or did not make advances to Ms F of the nature
alleged can not be established as they are totally denied by Mr c.
and equally convincingly upheld by Ms. F. The Court accepts that
of their nature such advances would obviously be made in private.
Even if it had been proven beyond all doubt that a proposition (as
detailed) had been made it would not, in the Court's opinion,
constitute sexual harassment amounting to discrimination within
the meaning of the Employment Equality Act, 1977. It was accepted
by the complainant that no further advances were made and, it was
also accepted by the complainant that no physical approach was
made then or subsequently.
Ms. F's complaint is that following that evening Mr c. subjected
her in the workplace to lewd remarks and passed dirty jokes of a
sexual nature in her presence to the extent that she felt
threatened and harassed.
There was no corroboration of these allegations and no evidence
that she discussed or reported this to any other member of staff.
In particular she did not report it to Mrs McG (wife of Mr McG)
who was regularly in attendance. Witnesses called on her behalf
were unconvincing.
In summary the Court had to consider and evaluate the following:
1) Mr. C.'s evidence, supported by other witnesses as to the
unsatisfactory work performance of Ms. F.
2) Ms. F.'s evidence in support of her claim that her rejection
of Mr. C.'s alleged advances on 14th July was followed by actions
and words of a sexual nature amounting to harassment which
resulted in her dismissal and the fact that there was little or no
evidence in support of her contention.
In assessing the evidence the Court noted that Ms. F. never spoke
to any other member of staff, either her peers or supervisor of
the alleged incidents. In addition the Court was influenced by
the fact that at the time she was interviewed by Mr McG with
regard to her proposed dismissal she did not mention any of the
above allegations.
On the basis of the evidence submitted the Court is not satisfied
that the complaint is well founded and accordingly dismisses it.
Division: Ms Owens Mr Keogh Mr Walsh
Text of Document__________________________________________________________________
EED926 ORDER NO. EEO593
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: A COMPANY
(REPRESENTED BY McCANNY AND COMPANY SOLICITORS)
AND
A WORKER
(REPRESENTED BY DAMIEN TANSEY AND COMPANY SOLICITORS)
SUBJECT:
1. Dispute in relation to alleged unfair dismissal of a worker
in contravention of Sections 3(1) and 3(4) of the Employment
Equality Act, 1977.
BACKGROUND:
2. 1. The worker commenced employment with the Company in May,
1991 as an Assistant in the leisure centre. Her employment
ceased with the Company on the 16th September, 1991 and her
wages at that time was #110 net per week. She claims that
during her period of employment she was sexually harassed by
the Manager (Leisure Centre) and dismissed because she did
not respond to the advances made by the resondent. The
employer rejected the allegations of sexual harassment and
unfair dismissal.
2. On the 3rd January, 1992, the worker referred the
complaint to the Labour Court under Section 27 of the
Employment Equality Act, 1977. The Court investigated the
complaint at hearings held on the 26th November, 1992 and the
4th February, 1993 during the course of which submissions
were read and evidence was presented on behalf of both the
respondent and the claimant.
WORKER'S ARGUMENTS:
3. 1. The dismissal followed and resulted from the worker
rejecting the advances of the Manager (Leisure Centre).
2. The Manager subjected the worker to lewd remarks.
3. The Manager complained unfairly to the Company regarding
her work.
COMPANY'S ARGUMENTS:
4. 1. The worker did not complain to the Company about sexual
harassment by the Manager (Leisure Centre).
2. No complaints about sexual harassment by the Manager
(Leisure Centre) were ever made by any other employee.
3. The worker was given the following reasons for the
termination of her employment:-
a) Poor work attitude.
b) She would not do sufficient cleaning duties.
c) She complained about her hours and days off.
d) She did not carry out her duties as Assistant
Manager.
e) She did not inform the Manager of what she was
doing when asked.
f) She had no interest in being good at her job.
4. The worker was on a trial period of 6 months.
DETERMINATION:
The Court has examined the details of this complaint lodged
pursuant to Section 27 of the Employment Equality Act, 1977. The
Court received written submissions from the parties and oral
evidence was submitted at hearings held on 26th November, 1992 and
4th February, 1993. The Court heard direct evidence from 9
witnesses (inclusive of Complainant and Respondent) from either
side.
Section 27(1) of the Employment Equality Act, 1977 states:-
"A dispute as to whether or not there has been a
contravention of Section 3(4) in relation to the dismissal of
a person may be referred to the Court by that person".
Section 3 of the Act prohibits discrimination by employers
and 3(4) sets out when a person shall be taken to
discriminate against an employee and includes such items as
same working conditions and dismissals.
The Court was presented with a considerable amount of
contradictory evidence from the parties. In addition some
witnesses who appeared before the Court submitted diametrically
opposite accounts of what took place. The Court therefore had
considerable difficulty in establishing facts and had to make a
value judgement on much of the evidence.
The Complainant stated she was dismissed on the 16th September,
1991. The Management stated that she was given 1 weeks notice by
the Centre Manager and details as to unsatisfactory work. It was
also pointed out that she was still within her probationary
period. She was subsequently interviewed by Mr McG (Manager of
Hotel). Mr McG in evidence stated that during that interview Ms.
F said 1 week was short notice and asked for an extension of 1 to
2 weeks. He agreed and gave her three weeks. In support of this
statement a duty roster showing Ms. F as rostered for a further 3
weeks was produced. Mr McG in evidence also stated that in his
view the notice was intended as a warning. Whether it was or not
cannot be established but the Court accepts that Ms. F concluded
that she was being dismissed. Her conclusion is supported by her
subsequent action in informing her mother, going with her to
Bundoran to see the owner of the hotel the following day and again
on another occasion and furthermore in seeking advice from a
practising solicitor, who represented her before the Labour Court.
The Court then had to examine the evidence from both parties as to
whether or not a dismissal took place and in particular if
dismissal did take place to examine Ms. F's contention that the
reason was her refusal to respond favourably to Mr. C's advances
which she alleges were of a sexual nature and amounted to sexual
harassment. The Labour Court has in EEO285 (Garage Proprietor V a
Worker) stated:
"Freedom from sexual harassment is a condition of work which
an employee of either sex is entitled to expect. The Court
will accordingly treat any denial of that freedom as
discrimination within the terms of the Employment Equality
Act, 1977".
Mr. C. claimed that at the time of giving Ms F notice he listed
reasons pertaining to her work performance. The Hotel Manager Mr.
McG agreed with this. At no time when being given reasons for her
dismissal did she allege approaches and harassment by Mr C. The
first intimation of such allegations seems to have been made at an
interview between Mr McE and the complainant's mother. The time
lapse between the alleged incident and dismissal was 14th
July/16th September.
The burden of proof falls on the complainant, the nature of the
proof being to establish that on the balance of probability the
alleged harassment did take place, and led to a breach of trust
between employer and employee, which resulted in the dismissal.
As already stated the Court was confronted with seriously
conflicting evidence. Mr C denies all charges and submitted that
Ms. F was neglectful of her duties and had been spoken to on
several occasions about her lapses. There was some corroborative
evidence in support of his position.
Witnesses called on behalf of Ms. F who were employed at the time
in the complex could not give the Court any positive evidence in
support of Ms F's evidence. It would seem to the Court that if
the harassment took place, Ms F did not tell any of her colleagues
about it. Neither was any evidence submitted that other female
employees had any similar problem with Mr C.
The alleged incident on the night of 14th July, 1991 when
complainant and respondent attended a disco attached to the hotel
along with other members of staff, was central to the claim.
Whether Mr. C did or did not make advances to Ms F of the nature
alleged can not be established as they are totally denied by Mr c.
and equally convincingly upheld by Ms. F. The Court accepts that
of their nature such advances would obviously be made in private.
Even if it had been proven beyond all doubt that a proposition (as
detailed) had been made it would not, in the Court's opinion,
constitute sexual harassment amounting to discrimination within
the meaning of the Employment Equality Act, 1977. It was accepted
by the complainant that no further advances were made and, it was
also accepted by the complainant that no physical approach was
made then or subsequently.
Ms. F's complaint is that following that evening Mr C. subjected
her in the workplace to lewd remarks and passed dirty jokes of a
sexual nature in her presence to the extent that she felt
threatened and harassed.
There was no corroboration of these allegations and no evidence
that she discussed or reported this to any other member of staff.
In particular she did not report it to Mrs McG (wife of Mr McG)
who was regularly in attendance. Witnesses called on her behalf
were unconvincing.
In summary the Court had to consider and evaluate the following:
1) Mr. C.'s evidence, supported by other witnesses as to the
unsatisfactory work performance of Ms. F.
2) Ms. F.'s evidence in support of her claim that her rejection
of Mr. C.'s alleged advances on 14th July was followed by actions
and words of a sexual nature amounting to harassment which
resulted in her dismissal and the fact that there was little or no
evidence in support of this contention.
In assessing the evidence the Court noted that Ms. F. never spoke
to any other member of staff, either her peers or supervisor of
the alleged incidents. In addition the Court was influenced by
the fact that at the time she was interviewed by Mr McG with
regard to her proposed dismissal she did not mention any of the
above allegations.
On the basis of the evidence submitted the Court is not satisfied
that the complaint is well founded and accordingly dismisses it.
~
Signed on behalf of the Labour Court
26th April, 1993 Evelyn Owens
P.O.C./M.H. ____________________________________
Deputy Chairman