Labour Court Database __________________________________________________________________________________ File Number: EED9220 Case Number: EEO939 Section / Act: S27EE Parties: A COMPANY - and - A WORKER |
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 (the 1977 Act).
Recommendation:
5. The first point to be addressed is whether the Employer can be
held responsible for an incident which it is alleged took place in
a public place on the way home from work. The only link with the
Employer was that it involved two of his employees. The Court is
of the view that he cannot be responsible for actions which occur
outside the work place, over which he has no control, and in a
situation where he could not provide protection.
However, the Court accepts that there are occasions when the
consequences of such acts could affect workers in the course of
their employment, in that they could cause a deterioration in the
working environment. The employer might then acquire a certain
responsibility to the workers affected.
It is submitted by the claimant that this is such a case, in that
arising from the incident which she alleged took place she was
afraid to continue working in the employment whilst the other
employee was also in attendance. She claims that the employer is
responsible for this situation.
The Court in EEO/2/85 has stated that "Freedom from sexual
harassment is a condition of work which an employee of either sex
is entitled to expect".
The Court accordingly considered the actions of the Employer after
he had received a complaint of harassment (2 days after the
alleged incident). On the evidence submitted, the Court is
satisfied that he acted correctly. He interviewed the accused,
who denied the action; he followed up with a call to the Gardai to
verify if a complaint had been made by the claimant, and he agreed
to change the work roster so that the two employees concerned
would not be working together. Such change could not be
implemented forthwith, but in the event the claimant did not work
again with the alleged perpetrator.
The Court is therefore satisfied that the employer did not
discriminate against the claimant and dismisses the claim that she
was constructively dismissed in contravention of Section 3(4) of
the Employment Equality Act, 1977.
Division: Ms Owens Mr Brennan Mr Walsh
Text of Document__________________________________________________________________
EED9220 ORDER NO. EEO993
EMPLOYMENT EQUALITY ACT, 1977
SECTION 27
PARTIES: A COMPANY
(REPRESENTED BY THE IRISH BUSINESS AND EMPLOYERS CONFEDERATION)
and
A WORKER
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 (the 1977 Act).
BACKGROUND:
2. 1. The worker commenced employment with the Company on 27th
May, 1992 as a trainee shop assistant. Her employment ceased
with the Company on the 11th June, 1992. The average weekly
wage was #62 gross per week. She claims that a supervisor
made advances constituting sexual harassment to her while she
was walking home from work on Sunday morning 7th June, 1992.
She further claims that she was sent home from work on the
following two nights by the Supervisor on duty and that when
she phoned in sick on Thursday 11th June, 1992 she was
unfairly dismissed. The Company rejected these allegations.
2. On 14th December, 1992 the worker referred the complaint
to the Labour Court under Section 27 of the Employment
Equality Act, 1977. The Court initially heard the case under
Section 26(4) of the 1977 Act and were satisfied that
reasonable cause had been shown as to why the reference was
made after the time limit specified in the act had expired.
The Court investigated the complaint on the 22nd June, 1993,
in 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 worker was sexually harassed by the supervisor on her
way home from work on Sunday 7th June, 1992.
2. The following night, Monday 8th June, 1992, the same
supervisor was on duty and when the worker informed him after
an hour that she would not remain on the premises after
closing, she was told to go home.
3. On Tuesday 9th June, 1992 the other supervisor gave the
worker the option to go home.
COMPANY'S ARGUMENTS:
4. 1. The Supervisor denies the allegation of sexual harassment.
2. The worker left the premises after one hour's work on
Monday 8th June, 1992.
3. The worker was sent home on Tuesday 9th June, 1992 by the
other Supervisor because she was of no use to him in the shop.
4. In the 2.50 weeks the worker was with the Company her
performance was poor and the manager had spoken to her about
this.
5. The worker's poor performance and the events of the 8th
and 9th June, 1992 led to her dismissal on the 11th June,
1993.
ORDER:
5. The first point to be addressed is whether the Employer can be
held responsible for an incident which it is alleged took place in
a public place on the way home from work. The only link with the
Employer was that it involved two of his employees. The Court is
of the view that he cannot be responsible for actions which occur
outside the work place, over which he has no control, and in a
situation where he could not provide protection.
However, the Court accepts that there are occasions when the
consequences of such acts could affect workers in the course of
their employment, in that they could cause a deterioration in the
working environment. The employer might then acquire a certain
responsibility to the workers affected.
It is submitted by the claimant that this is such a case, in that
arising from the incident which she alleged took place she was
afraid to continue working in the employment whilst the other
employee was also in attendance. She claims that the employer is
responsible for this situation.
The Court in EEO/2/85 has stated that "Freedom from sexual
harassment is a condition of work which an employee of either sex
is entitled to expect".
The Court accordingly considered the actions of the Employer after
he had received a complaint of harassment (2 days after the
alleged incident). On the evidence submitted, the Court is
satisfied that he acted correctly. He interviewed the accused,
who denied the action; he followed up with a call to the Gardai to
verify if a complaint had been made by the claimant, and he agreed
to change the work roster so that the two employees concerned
would not be working together. Such change could not be
implemented forthwith, but in the event the claimant did not work
again with the alleged perpetrator.
The Court is therefore satisfied that the employer did not
discriminate against the claimant and dismisses the claim that she
was constructively dismissed in contravention of Section 3(4) of
the Employment Equality Act, 1977.
~
Signed on behalf of the Labour Court
Evelyn Owens
_______________________
16th September, 1993. Deputy Chairman.
P.O'C./J.C.