Labour Court Database __________________________________________________________________________________ File Number: AEE933 Case Number: DEE936 Section / Act: S21EE Parties: AN EMPLOYER - and - A WORKER;A UNION |
Appeal by both parties against Equality Officer's Recommendation No. EE4/1993 concerning alleged sexual harassment of a female employee contrary to the terms of Section 2(a) of the Employment Equality Act, 1977.
Recommendation:
8. The grounds for appeal of the Equality Officers recommendation
no. EE4/1993 are set out above. The Court received written
submissions from both parties and heard further oral evidence on
21st July, 1993. There is no dispute between the parties as to the
facts of the case. The Employer argued that when they became aware
of the complaint they acted in a reasonable and proper manner. In
addition they asked the Court to reduce the amount of compensation
recommended by the Equality Officer as they are a charitable
organisation largely dependent on voluntary contributions to
sustain their operations.
The Court notes that the Employer accepts the first part of the
Equality Officer's recommendation and urges both parties to
immediately agree and implement policy guidelines on sexual
harassment as set out in Para 7.3 of the Equality Officers
recommendation.
With regards to the amount of compensation recommended the Court
notes that before arriving at the amount awarded the Equality
Officer took into account the additional point made at the appeal
proceedings i.e. "the Employer was not in a position to take early
action in the matter by simply being unaware of the situation".
(Para 7.4). As the amount of compensation which could have been
awarded is considerably greater than the amount herein disputed the
Court is of the view that the Equality Officer has already taken
this point into account and reduced the award accordingly.
On the basis of the evidence presented the Court is satisfied that
the Equality Officer's recommendation should be upheld in full.
The Court accordingly rejects the appeal made by the employer and
upholds the appeal for an Implementation Order.
Division: Ms Owens Mr McHenry Mr Rorke
Text of Document__________________________________________________________________
AEE933 DETERMINATION NO. DEE693
EMPLOYMENT EQUALITY ACT, 1977
SECTION 21
PARTIES: AN EMPLOYER
(REPRESENTED BY A SOLICITOR)
and
A WORKER
(REPRESENTED BY A UNION)
SUBJECT:
1. Appeal by both parties against Equality Officer's
Recommendation No. EE4/1993 concerning alleged sexual harassment
of a female employee contrary to the terms of Section 2(a) of the
Employment Equality Act, 1977.
BACKGROUND:
2. The background to this dispute is outlined in the Equality
Officer's recommendation and is attached as appendix 1. The
Equality Officer recommended that
(i) the employer, in conjunction with the Union, should
agree and implement policy guidelines on sexual
harassment,
and
(ii) the claimant be paid the sum of #6,000 as compensation.
3. On 3rd March, 1993 the Union appealed to the Labour Court
under Section 21 of the Employment Equality Act, 1977 for
implementation of the Equality Officer's recommendation.
4. On 12 March, 1993 the Employer appealed the Equality Officer's
recommendation to the Labour Court under Section 21 of the
Employment Equality Act, 1977 on the following grounds:-
"1. That having regard to the fact that the manager,
referred to in the dispute, failed to advise the
employer of the complaint of sexual harassment which was
made to him by the union official allowance should be
made for the opportunity which the Employer was thereby
denied to take its own immediate steps to investigate
and deal appropriately with this matter.
2. The Union acting for the claimant acted simultaneously
for the person who was alleged to have actually carried
out the sexual harassment in the Labour Relations
Commission Hearing. The same Union has continued to act
for both persons in regard to this matter.
Significantly the Union failed at any time to
communicate the complaint made by its member complainant
prior to formal notification to the Labour Court. It is
therefore clear that a substantial part of the blame for
any protraction of the claimant's anxiety must attach to
the Union proporting to represent her.
3. That in spite of a number of written requests issued by
or on behalf of the Employer for further information and
particulars and for the opportunity to interview the
worker about the matter of the dispute the same was
denied. Here also the Employer was denied the proper
and immediate opportunity to take its own steps to
forthwith investigate and deal appropriately with the
matter.
4. The Employer has in advance of agreeing policy
guidelines on sexual harassment with the Union already
taken certain steps to avoid the possibility of any
further sexual harassment.
5. The Employer is a charitable body run entirely on a
voluntary basis by its Executive Committee who are in
the main non-commercial persons. They are necessarily
in these circumstances under very strict budget control
and experience grave problems in regard to being able to
maintain their operation. In these circumstances it is
submitted that the compensatory sum of #6,000.00 is far
too excessive.
6. Since the date of the recommendation the Employer has
expended considerable time, effort and costs towards the
establishment of its own disciplinary hearing in respect
of the terms of the recommendation as far as the manager
is concerned. It may be, subject to the completion of
the establishment of the disciplinary hearing and its
procedures, that the consequence will be that the
Employer will have properly dismissed the said manager.
5. The Court heard the appeal on 20th July, 1993. Both parties
made written submissions which were expanded upon orally at the
appeal hearing.
UNION'S ARGUMENTS:
6. 1. The Union wrote to the Employer twice seeking a meeting
to discuss policy guidelines for dealing with sexual
harassment, as recommended by the Equality Officer. No reply
was received.
2. The worker continued to be subjected to sexual harassment
following the lodgement of the initial complaint despite
assurances from the Employer that she would be protected from
such abuse (details supplied to the Court). As a consequence
the Union is now seeking maximum compensation for the worker
under the Employment Equality Act i.e. 2 years salary.
EMPLOYER'S ARGUMENTS:
7. 1. The Employer has taken steps to implement suitable
guidelines for dealing with sexual harassment (details
supplied to the Court).
2. The Employer fully accepted the Equality Officer's
conclusions and following the issue of his recommendation
conducted its own disciplinary investigation. As a result of
this investigation the manager at the centre of the
allegations was dismissed.
3. If a prompt complaint had been made the Employer would
have been in a position to act earlier.
4. The award of #6,000 is excessive having regard to the
nature and duration of the conduct complained of and the
failure of the Union to immediately report the complaint to
the Employer.
5. The Employer is not in a position to pay the award
(details supplied to the Court).
DETERMINATION:
8. The grounds for appeal of the Equality Officers recommendation
no. EE4/1993 are set out above. The Court received written
submissions from both parties and heard further oral evidence on
21st July, 1993. There is no dispute between the parties as to the
facts of the case. The Employer argued that when they became aware
of the complaint they acted in a reasonable and proper manner. In
addition they asked the Court to reduce the amount of compensation
recommended by the Equality Officer as they are a charitable
organisation largely dependent on voluntary contributions to
sustain their operations.
The Court notes that the Employer accepts the first part of the
Equality Officer's recommendation and urges both parties to
immediately agree and implement policy guidelines on sexual
harassment as set out in Para 7.3 of the Equality Officers
recommendation.
With regards to the amount of compensation recommended the Court
notes that before arriving at the amount awarded the Equality
Officer took into account the additional point made at the appeal
proceedings i.e. "the Employer was not in a position to take early
action in the matter by simply being unaware of the situation".
(Para 7.4). As the amount of compensation which could have been
awarded is considerably greater than the amount herein disputed the
Court is of the view that the Equality Officer has already taken
this point into account and reduced the award accordingly.
On the basis of the evidence presented the Court is satisfied that
the Equality Officer's recommendation should be upheld in full.
The Court accordingly rejects the appeal made by the employer and
upholds the appeal for an Implementation Order.
~
Signed on behalf of the Labour Court
Evelyn Owens
_______________________
10th August, 1993. Deputy Chairman.
M.D./J.C.