FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : A COMPANY (REPRESENTED BY CLIONA KIMBER,B.L. INSTRUCTED BY A & L GOODBODY, SOLICITORS.) - AND - A WORKER (REPRESENTED BY MARGUERITE BOLGER, B.L. INSTRUCTED BY FAWSITT SOLICITORS.) DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Ms Ni Mhurchu |
1. Alleged Unfair Dismissal under Section77 of The Employment Equality Act, 1998.
BACKGROUND:
2. The dispute concerns a worker who commenced employment on the 20th May, 2002. She was dismissed on the 26th July, 2002. The complainant contends that she was subjected to acts of sexual harassment in the course of her employment with the respondent. She claims to have made complaints in that regard to the appropriate management personnel and shortly thereafter her employment was terminated. The complainant contends that her dismissal resulted wholly or mainly from having made those complaints and amounted to discrimination and /or victimisation, in contravention of the Employment Equality Act, 1998 (The Act). On the 14th October, 2002, the worker referred a complaint to the Labour Court under Section77 (2) of the Act. A Court hearing was held on the 28th January, 2003.
Issues for Determination by the Court:
The respondent submitted that in order to succeed the complainant must prove that the acts of harassment did in fact take place, and that this alleged conduct was in fact the reason for her dismissal. In their written submission to the Court they denied that these acts occurred or that they amounted to sexual harassment. They further contended that the complainant never reported the alleged incidents of sexual harassment to the respondent.
The Court was informed that the respondents intended to call a number of witnesses to rebut the complainant’s allegations of sexual harassment.
Counsel for the complainant contended that it is sufficient to establish that complaints in relation to sexual harassment were made and that given the proximity in time between the making of the complaints and the dismissal the onus shifts to the respondent to prove that the dismissal was not discriminatory.
The Court was informed that a separate complaint, pursuant to Section 77(1) of the Act, has been made to the Director of Equality Investigations (The Equality Tribunal) in respect of the sexual harassment itself. Both parties agreed that if this Court were to receive evidence of the veracity of those complaints and to make findings on that evidence, it would seriously prejudice the outcome of the investigation by the Equality Tribunal. Any subsequent appeal to this Court would also be prejudiced.
Counsel for the respondent submitted that in these circumstances the hearing before the Court should be adjourned until the proceedings before the Equality Tribunal are disposed of. No such application was made prior to the hearing.
For reasons that follow, the Court did not consider it necessary to adjourn the proceedings. The Court felt that to do so would involve putting the parties to further unnecessary inconvenience and expense.
The Court is of the view that evidence in relation to the veracity of the complaints of sexual harassment are not relevant to the issues arising in the present case. Those issues are:
1. Did the complainant complain in good faith that she had been subjected to acts of sexual harassment?
2. Was the farm manager (who took the decision to dismiss) aware of those complaints at the time he decided to terminate the complainant’s employment?
3. Was the complainant’s dismissal wholly or mainly attributable to the existence of such complaints?
- The Court cannot accept that the claimant must establish as an objective fact that she was subjected to sexual harassment before she can avail of Section 77(2) of the Act. Experience has shown that employees who make complaints of discrimination generally, and of sexual harassment in particular, can be vulnerable to victimisation. Hence, the protection afforded by section 77(2) must be seen as a vital component in ensuring the effectiveness of both the Act and the Equal Treatment Directive on which its provisions regarding gender discrimination are based. The purpose of this provision is clearly to allow those who consider themselves wronged to bring forward complaints at any appropriate level without fear of penalisation for so doing. However, the usefullness of that protection would be significantly impaired if it were dependent upon the complaints being upheld in a subsequent investigation.
The Court is firmly of the view that employees are entitled to bring forward complaints of sexual harassment, which they consider to be legitimate, and are entitled to protection from penalisation regardless of the outcome of such complaints.
Counsel for the respondent further submitted that she should be permitted to adduce evidence in relation to the veracity of the complaints of sexual harassment, which could go to the bona fides of the complainant. The Court did not accept that submission for two reasons. Firstly, if it was to be contended that malice intent on the part of the complainant justified her dismissal, only those who were involved in making the decision to terminate her employment could give that evidence. It is noted, however, that no such contention is contained in the written submissions presented by the respondent. Secondly, evidence in rebuttal of the complaint’s complaints, even if accepted by the Court in its entirety, would not in itself establish that she acted mala fide.
Accordingly, the Court held that only evidence in relation the making of complaints by the complainant and the extent, if any, to which the existence of such complaints contributed to her dismissal were relevant to the facts at issue in this case. It held that evidence which related solely to the veracity of any such complaints was not relevant and should not be admitted.
The Material Facts:
The material facts, as admitted or as found by the Court, can be briefly summarised as follows.
- The complainant commenced employment with the respondent on the 20th of May 2002. She was employed as a stud hand. The complainant had previously been self-employed in the bloodstock industry. She had extensive experience in working with horses, although it appears that she did not previously encounter thoroughbreds of the quality stocked by the respondent. At the commencement of her employment the complainant was issued with a copy of the respondent’s staff handbook which explained, inter alia:
- The respondent’s equal opportunities policy.
- The respondent’s policy for dealing with harassment in the workplace
- The respondent’s policy for dealing with sexual harassment
- The procedures for reporting grievances.
- The complainant read and understood this handbook.
- The complainant was employed on a probationary period of 11 months.
The complainant alleges that she was subjected to sexual harassment in the course of her employment about which she complained to her immediate superiors. The Court makes no finding as to whether this harassment did or did not occur.
The Court is not satisfied that all of the alleged incidents were reported or complained of by the complainant in any formal sense. It is clear, however, that the complainant reported one alleged incident to her supervisor. The farm manager was subsequently made aware of this complaint in early July 2002 in the course of a telephone conversation with the supervisor. The supervisor informed the farm manager in emphatic terms that he did not believe that there was any substance in this allegation. The farm manager was of a similar view based on his knowledge and previous experience of the employee against whom the allegation was made.
Nonetheless the farm manager asked the supervisor to investigate the allegations further by speaking with two other employees who were present when the incident allegedly occurred.
- The farm manager heard nothing further about the allegation and presumed that the matter had been resolved. On the 25th July 2002 the complainant telephoned the office manager to advise her that she would be unable to attend work due to illness. During the course of this conversation the complainant told the office manager of the incident already reported by the supervisor to the farm manager. She also referred to another incident of alleged harassment.
The complainant told the Court that she found it easier to speak to another woman in relation to these matters. The office manager informed the claimant that she should process these complaints through the formal grievance procedures. Later that day the officer manager informed the farm manager of the conversation that she had with the complainant and of her allegations of sexual harassment.
The farm manager had been concerned at the competence of the complainant to carry out the job for which she was employed. He said he had formed the view sometime earlier that her employment should be terminated but had decided not to take any action at that time. While the Court accepts that the farm manager did have concerns in relation to the complainant’s performance, this was never discussed with the complainant nor was it brought to her attention.
Having received the report from the office manager, the farm manager met with the complainant’s supervisor to discuss her continued employment. It was then decided that she should be dismissed. The farm manager fairly and frankly accepted in his evidence to the Court that the complaints of sexual harassment, which had been repeated to the office manager, were taken into account in deciding to terminate the claimants employment. The farm manager told the Court that the second incident which the complainant had reported to the office manager (which the farm manager believed was totally lacking in credibility) was the final straw.
- Statutory Provisions:
Section 77(2) of the Acts provides as follows:
(2). If a person claims to have been dismissed
(a) in circumstances amounting to discrimination by another in contravention of this act or
(b) in circumstances amounting to victimisation,
then subject to Subsection (3), a claim for redress for the dismissal may be brought before the Labour Court and shall not be brought to the Director.
Section 74(2) of the Act defines victimisation as follows: (2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),
- (b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,
- (c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or
- (d) given notice of an intention to do anything within paragraphs (a) to (c).
In the Court's view a person who is dismissed wholly of mainly for having reporting in good faith incidents which they believe to constitute sexual harassment, or for having made complaints in that behalf, or for otherwise seeking to prevent its occurrence or reoccurrence, is victimised within the meaning of paragraphs (b) and (d) of that definition.
Conclusions of the Court:
Whilst the complainant did not pursue her complaint of sexual harassment in strict conformity with the respondents grievance procedure, there is no doubt that she did bring at least some of her complaints to her superiors attention. Equally, there is no doubt that the farm manager became aware of at least two of these complaints. It should, however, be noted that the Code of Practice referred to below provides that these should be informal as well as formal methods of making complaints.
Whilst the farm manager did suggest in evidence that he regarded the complaints as vexatious, no basis was put forward for this view beyond his belief that the conduct complained of could not have occurred.
On this point the Court has noted the provisions of the Employment Equality Act (Code of Practice) (Harassment) Order 2002 (S.I. No. 78 of 2002) made pursuant to section 56(1) of the Act, as amended by paragraph (g) of the Schedule to the Equal Status Act 2000. At section 5(4) the code provides, in relation to the complaints procedure which employers should follow, as follows:
(4) Victimisation.
The Complaints procedure should make it clear that an employee will not be victimised or subjected to sanction for making a complaint in good faith, or for giving evidence in proceedings, or by giving notice of intention to do so.
The procedure should make clear that in the course of investigating the complaints the employer will make no assumptions about the guilt of the alleged harasser.
In its written submission to the Court the respondent did not put the complainants bona fides at issue. Nor they did they suggest any malicious or vexatious reason which may have motivated the complainant in making complaints. Further, the Code of Practice indicates that the employer should make no assumptions about the guilt of the alleged harasser. By parity of reasoning, the employer should not make assumptions as to the bona fides of the complaint itself or that of the complainant.
There was no evidence that the complainant was accused of making vexatious complaints through the company’s disciplinary procedure or otherwise. Moreover, there was no meaningful investigation or enquiry into the substance of these complaints before the decision to terminate the complainant’s employment was taken. Rather, they were dismissed out of hand by the supervisor and the farm manager.
The complainant was not asked to expand on the complaints nor was she given any opportunity to address the respondents stated belief that the events complained of could not have occurred. In these circumstances the Court cannot see any reasonable basis on which the respondent could have concluded that the complainant was not acting in good faith.
The Court has no doubt that were it not for the fact that the farm manager became aware on the 25th July 2002 that the complainant was persisting in making complaints of sexual harassment her employment would not have been terminated when it was. Hence the Court is satisfied that the complainant’s dismissal resulted wholly or mainly from the making of those complaints and amounts to victimisation within the meaning of Section 74(2) of the Act.
DETERMINATION:
The Court finds the complainant was dismissed in circumstances amounting to victimisation within the meaning of Section 74(2)(b) and (d) of the Act.
The Court determines that the appropriate redress is an award of compensation. In measuring the quantum of compensation the Court has had regard to all of the circumstances of the case including the financial loss suffered by the complainant, the distress which she suffered in consequence of the dismissal together with the requirement to make an award which is effective, proportionate to the wrong suffered and dissuasive.
The Court awards compensation in the amount of €15,000
For the sake of completeness the Court wishes to emphasise that it makes no findings as to the whether the acts complained of by the complainant occurred in the manner alleged or at all, or if such acts constitute sexual harassment in fact or in law.
Signed on behalf of the Labour Court
Kevin Duffy
18th February, 2003______________________
todDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.