FULL RECOMMENDATION
SECTION 21, EMPLOYMENT EQUALITY ACT, 1977 PARTIES : ST JAMES'S HOSPITAL (RESPONDENT) (REPRESENTED BY S�LE O'KELLY B.L.) (INSTRUCTED BY A & L GOODBODY, SOLICITORS) - AND - A WORKER (CLAIMANT) (REPRESENTED BY EILEEN O'LEARY B.L.) (INSTRUCTED BY O'MARA GERAGHTY MCCOURT,SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Keogh Worker Member: Mr O'Neill |
1. (a) Appeal by the Respondent against Equality Officer's Recommendation DEC-E-2000/9 and (b) an Appeal by the claimant that the Equality Officer's Recommendation has not been implemented. It is alleged that the claimant was discriminated against in terms of Section 2(d) of the Employment Equality Act, 1977 and contrary to Section 3 of that Act.
BACKGROUND:
2. The claimant commenced employment in 1989 as a hospital attendant. She was appointed to the X-ray Department in June, 1990. It is alleged by the claimant that she was the subject of victimisation, intimidation and bullying by her immediate supervisor following her sexual harassment complaint against him.
The respondents claim that all reasonable steps were taken to deal with the complainant's complaints as they arose. It states that it tried to facilitate a transfer for her but for various reasons was unable to do so. The background to the case is set out in the Equality Officer's Recommendation (details with the Court). The Equality Officer in her Recommendation, which was issued on the 28th November, 2000, found that the claimant was discriminated against in terms of Section 2(d) of the Employment Equality Act, 1977 and contrary to Section 3 of that Act.
The Respondent appealed the Recommendation to the Labour Court on the 5th January, 2001 on the following grounds:-
(a) The Equality Officer erred in law in finding that the Claimant was entitled to an award of damages or any relief.
(b) The recommendation of the Equality Officer is not in accordance with the findings of facts as stated by the Equality Officer.
(c) The Equality Officer failed to have due regard to the prior Decision of the Labour Court in respect of Section 19 (5) of the Employment Equality Act, 1977, No.ETT 994.
(d) The Equality Officer failed to properly interpret the Employment Equality Act 1977 and in particular Sections 2 (d) (i) (ii) (iii) (iv) and Section 3.
(e) The recommendation of the Equality Officer is contrary to, or alternatively not in accordance with the evidence adduced and submissions made.
(f) The Respondent will rely on such further or other ground of appeal as may be adduced.
The claimant appealed for a Determination that DEC-E-2000/9 be implemented.
The Court heard the appeal on the 12th of June, 2001.
DETERMINATION:
The Court has given consideration to all aspects of the appeals by both sides to the Equality Officer's recommendation. The Labour Court, in case No: EET 994 extended the time limit provided under the Employment Equality Act, 1977 to allow the claimant bring a claim to the Equality Officer, under Section 2 (d) of the 1977 Act.
The Equality Officer found that the claimant had been discriminated against by the Hospital in terms of Section 2 (d) of the Employment Equality Act, 1977 and contrary to Section 3 of that Act, and recommended accordingly. The Hospital appealed the case stating that the Equality Officer has erred in law, that the findings were not in accordance with the facts of the case, and that due regard was not given to the Labour Court decision in respect of Section 19 (5). The worker appealed the recommendation on the basis of its non-implementation and that insufficient monetary compensation was awarded.
The claimant's case to the Labour Court is that she was penalised by the Hospital for having in good faith made a complaint of sexual harassment against a named manager, and that the Hospital led her to believe that it would deal with the complaint. The claimant states that the Hospital had repeatedly failed to remedy the problem thereby prolonging the situation.
The claimant maintained that she made a complaint concerning a named manager to a member of management, in 1990. It was the Hospital's contention that the claimant had not made such a complaint in 1990 but had in fact not made this complaint until 30th January 1996.
However, details of such a complaint being made were included in a letter dated 11th March 1997, which was submitted in evidence by the respondents. This letter clearly states that such a complaint was made in 1990. The respondents did not deny this evidence.
The claimant indicated to the Court that since 1996 a number of additional complaints were made to management concerning the manager. In response the Hospital indicated that it acted upon these complaints, investigations were carried out into the allegations made, and whatever appropriate action considered necessary was taken.
Findings
In considering the case, the Court has had regard to both the written and oral submissions of the parties. These submissions outline a series of complaints relating to the named manager from January 1996 to the date of the claim to the Labour Court in July 1998. The Court bases its findings principally on the following complaints:-
The claimant was called to a meeting, which was convened in line with established procedures, following her absence from work on 15th January 1996 and her failure to notify the Hospital concerning the illness. At this meeting the incident concerning the alleged sexual harassment in 1990 was referred to. The Hospital indicated to the Court that this was the first time that they had been aware of the allegation, despite the claimant's assertion that the complaint had been made in 1990 to the superintendent radiographer who was given a copy of a letter of complaint.
A subsequent meeting on 5th February 1996 was arranged to discuss the complaint and an agreement was made to carry out a thorough investigation. A report of the investigation was made on 30th April 1996, this indicated that the manager's style of communication was not acceptable to the Hospital, that there was a total breakdown in the working relationship and it set out proposals to overcome the difficulties identified.
On the 10th May 1996, the claimant was issued with a verbal warning concerning her failure to follow the hospital's sick leave regulations on 1st May 1996. This transpired at the conclusion of a meeting held on 9th May 2001 held to investigate the matter and attended by the claimant, her shop steward, the chief shop steward, the superintendent 11 radiographer, the senior attendant DID, and the industrial relations officer.
At the Court hearing, it was indicated that in the vast majority of similar situations, ie. where an employee has failed to prove that notification was given thereby breaching sick leave regulations, the matter has been sorted out to the Union's satisfaction. However, in this case, the employee was issued with a verbal warning.
On 6th February 1998 a complaint was made relating to an incident concerning an allegation of aggressive behaviour by the named manager. She pleaded to management to sort this matter out as soon as possible. This incident was investigated by the Hospital. Management at the Hospital reported that an "unwarranted exchange" had taken place between the claimant and the manager. His behaviour was described as "totally unacceptable" and was "not condoned". It was stated that this view had been unequivocally communicated to the manager concerned. It was also stated that the manger had been counselled regarding "re-establishing a proper working relationship".
The Hospital replied to the complaint by thanking the claimant for bringing this matter to their attention and pointed out to her that such behaviour was totally unacceptable and not condoned by management. They pointed out that this had been unequivocally outlined to the manager concerned and that a reoccurrence of this behaviour would not be tolerated in any circumstances.
The claimant indicated to the Hospital that she was dissatisfied with the outcome. Since 10th September 1996 the claimant had been attempting to transfer to another location within the Hospital. When an offer of a transfer to the ward areas was made on 11th March 1997 the claimant refused as the hours of work was considered unsuitable, coupled with her reluctance to transfer given her perception as victim of an alleged discrimination.
Conclusion
In October 1997 the claimant wrote to the Hospital seeking a transfer. The Court is of the view that it should have been obvious from the tone of that letter that the need to transfer the worker from what had become intolerable working conditions was now a matter of urgency. The hospital's reply was that there were no vacancies at that time.
The Court is of the view that the Hospital should have put in place a monitoring system to ensure no reoccurrences of the difficulties encountered when it set out its proposals for handling the situation, on 30th April 1996. It was aware that the manager's "style of communication was coarse and aggressive".
The handling of the 1998 incident is, in the Court's view, an indication of the inadequate response taken by the Hospital to a number of serious allegations, which needed to be addressed in a more urgent manner. The fact that no disciplinary action was taken against the manager is inexcusable.
The Court is of the view that the pleadings of the claimant in her letters of 2nd October 1997, and 6th February 1998 should have received a more reactive response. Despite her many attempts at seeking a transfer within the Hospital, none was provided, even though the Hospital clearly acknowledged that there had been "a total breakdown in the working relationship between complainant and the manager". A suitable vacancy arose in November 1998, in the Physiotherapy Department; the Court is of the view that the Hospital should have done more to ensure the transfer of the claimant to that position.
Therefore, the Court is not satisfied that the steps taken to overcome the difficulties identified were appropriate or sufficient to guarantee no further reoccurrences of the problems encountered.
The Court concurs with the Equality Officer's conclusion in paragraph 8.13. The Court concurs with the view that due to the failure of the hospital to appropriately deal with the difficulties encountered by the claimant which the Court is satisfied emanate from the original complaint made regarding the incident in 1990, the worker's position became intolerable. The Hospital failed to put a satisfactory remedy in place. In its submission to the Equality Officer, the Hospital denied that the claimant was subject to a hostile or intolerable working environment.
The Court is of the view that the Hospital were clearly aware of the complaints, they failed repeatedly over a protracted period of time to remedy the situation. The claimant was led to believe that her grievances would be dealt with and resolved.
Determination
Having considered the written and oral submissions, the Court is satisfied that the respondent did discriminate against the claimant within the meaning of Section 2 (d) of the Equality Act, 1997. The recommendation of the Equality Officer is affirmed and the respondent's appeal is disallowed.
The Court notes that the named manager concerned in this case is no longer working in the Diagnostics Imaging Department and that therefore, there is no longer a need to have him transferred. The Court does not recommend an amendment to the monetary amount awarded by the Equality Officer for compensation for the stress suffered as a result of the discrimination. Therefore, the claimant's appeal is disallowed.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
16th July, 2001______________________
LW/BRDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.