FULL RECOMMENDATION
SECTION 26(1), EMPLOYMENT EQUALITY ACT, 1977 PARTIES : A COMPANY - AND - A WORKER (REPRESENTED BY EMPLOYMENT EQUALITY AGENCY) DIVISION : Chairman: Mr Flood Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Alleged unfair dismissal under Section 26(1)/27 of the Employment Equality Act, 1977.
The worker in this case complained to the Court that she had been dismissed from her employment with the Company (‘the employer’) in circumstances in which there had been a contravention of Section 3(4) of the Employment Equality Act (‘the Act’) and because she had opposed by lawful means an act which is unlawful under the Act contrary to Section 26(1) of the Act.
The worker's case was that she had been subjected to sexual harassment by the Chief Executive of the Company, and that she had been dismissed because of her opposition to such harassment.
BACKGROUND:
2. The employer is a trust which was founded in 1984 to address the problem of unemployment. The idea was that potential entrepreneurs and community enterprise groups would establish their business, thus creating employment for themselves and others. The employer is recognised as a charity and a research college. The employer has 78 units which are engaged in a variety of activities e.g., food processing, working in iron and steel, making pottery and giftware etc.
The worker commenced her employment on the 27th of May, 1996 and claims that she was unfairly dismissed on the 14th of June, 1996. She also claims that she was the subject of sexual harassment, and that she was dismissed as a result of her opposition to this alleged treatment.
The worker was employed in the reception and general office which she shared with two other female workers. The worker claims that she obtained the position after two interviews with the Chief Executive. She states that in general during her time in employment she was subjected to offensive treatment of a sexual nature by the Chief Executive.
The Chief Executive denies that any sexual harassment took place. The worker was taken on for a 4-week trial period but proved incapable of doing the work and as a result she was dismissed.
The worker referred her case to the Labour Court under Sections 26 and 27 of the Employment Equality Act, 1977. A Labour Court hearing took place over 4 days - the 30th of April, 28th of May, 17th of July and 5th of September, 1997. For the first 2 days the employer had legal representation. For the last 2 days the Chief Executive conducted the employer's defence.
HEARINGS:
While investigations of claims of sexual harassment are always difficult for all concerned this particular case was made more so by the approach taken by the Company, its attitude to the Court, and the conduct of its case.
The Company at various stages of this case made unfounded allegations, including allegations of bias by the Court, withdrew these when the Court indicated its intention to withdraw from the case, but re-affirmed some of the allegations when summing up its case at the final hearing. The Court totally rejected the allegations made by the Company.
The Court investigation was also hampered by the non-attendance of a witness who had made written statements of significance for both sides. This witness had accepted a summons and agreed a date suitable to her to attend but refused to attend on the day before the hearing. The file in this case was forwarded to the Minister for action.
Findings:
Sexual Harassment
The worker claimed that she had been subjected to certain behaviour from the Chief Executive, which amounted to sexual harassment. Specifically she alleged that:-
- she was subjected to offensive treatment by the Chief Executive.
- she was locked in the office at lunch time and told offensive jokes.
- he stared at her in a manner that made her feel uncomfortable and brushed against her unnecessarily.
- he asked personal questions about her boy friend and gave her unnecessary advice about her personal life.
- at a reception in Bunratty Castle he pressurised her to drink alcohol, spoke to her in an offensive way and told offensive jokes.
The Company rejected any claim that the worker was treated offensively by the Chief Executive. The Company in defence claimed that:-
- locking of the office door was normal practice for privacy.
- the Chief Executive had an eye problem that could give the wrong impression to an observer (medical evidence was produced).
- there was no brushing against the claimant.
- any discussion in relation to her boy friend was normal conversation and ceased on request.
- there was no offensive action at Bunratty, they were in company at the reception and the worker left the Banquet.
While claims were also made by one witness of sexual harassment by the Chief Executive, and the Employment Equality Agency produced evidence of a complaint by another staff member (not subsequently followed up), the onus remains on the claimant to establish that she herself had suffered sexual harassment.
In this respect, the Court was not satisfied that sufficient evidence had been produced to substantiate the claim of sexual harassment.
Dismissal
The Employer's case is that the worker was dismissed because of incompetence and an inability to do the job for which she was hired. The Court is satisfied that the employer was aware of the worker's lack of experience for such a job when the Chief Executive recruited her. The worker's experience had been mainly in the catering trade, an area the Company had stated its intention to get involved in at some stage.
Given the background to her recruitment, and the fact that the Chief Executive recruited her himself in the full knowledge of her lack of office management skills, the Court does not accept the Company's explanation that her dismissal, within such a short period of time, was based on incompetence.
Evidence was given by the claimant that she had made a person, whom she believed to be a senior official of the Company, aware of her allegations, and that she had complained to the Equality Agency. Two other employees gave evidence that it was discussed and known to them that the complaint had been made.
The Court finds the claimant's evidence more credible, and having considered all the evidence presented, concludes that the worker was dismissed because she complained to the Employment Equality Agency and started proceedings against the Company.
The Court is of the view that those involved in this case would have benefited from a clear industrial relations procedure in the Company for dealing with these kind of issues.
ORDER:
The Court finds that the Employer is in breach of Section 26(1) of the Act, and will make an Order for the Company to pay the worker compensation in the amount of £3,000 which the Court considers appropriate in the circumstances of the case.
Signed on behalf of the Labour Court
Finbarr Flood
15th January, 1998______________________
C.O'N./D.T.Deputy Chairman
NOTE
Enquiries concerning this Order should be addressed to Ciaran O'Neill, Court Secretary.