FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : A COMPANY (REPRESENTED BY VINCENT & BEATTY SOLICTORS) - AND - A WORKER (REPRESENTED BY O'MARA GERAGHTY MCCOURT) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Alleged unfair dismissal under Section 77 of the Employment Equality Act, 1998
BACKGROUND:
2. The complainant referred her case to the Labour Court on the 23rd of May, 2003. Labour Court hearings took place on the 13th of May, 2003, and the 4th of December, 2003. The following is the Court's determination.
DETERMINATION:
The complainant claims that she was constructively dismissed from her employment in circumstances amounting to discrimination and/or victimisation, on account of her having made a sexual harassment complaint. The complainant brought a claim seeking redress pursuant to Section 77(2) of the Employment Equality Act, 1998, (the Act).
The respondent company went into liquidation on 5th February, 2002, and was represented at the hearing by the liquidator’s legal counsel. The respondent denied that the complainant was dismissed, and submits that her employment was not permanent, that she was on a fixed-term contract and that her employment terminated on the expiry of the contract.
The complainant made claim to the Equality Tribunal under Section 23 of the Act claiming discrimination on the grounds of gender, in the manner in which the respondent dealt with her complaint of sexual harassment by a senior employee. The Equality Officer found in favour of the complainant and awarded €10,000 in respect of the distress caused by the discrimination and the stress relating to the necessity to pursue her claim. This decision was not appealed.
The Complainant’s CaseThe complainant commenced employment as a bus driver on 11th April, 1999, under terms where she was led to believe that after a probationary period of six months she would be made permanent.
The complainant reported incidents of sexual harassment by the Transport Manager to the Chief Executive in June, 1999. Shortly afterwards, the Transport Manager informed her that her roster was changing. When she complained he told her that “if she did not toe the line” she would not be taken on at the end of the season. On this occasion, a further incident of sexual harassment occurred. The following day a complaint of the incident was made to the Chief Executive by the complainant who indicated her fear that her job was threatened.
On 7th November, 1999, the complainant discovered that she would have to re-apply for her job. A memorandum was enclosed in her wages slip stating that, due to the expiry of the summer bus service on 14th November, 1999, her contract was not being extended. It indicated that if she was interested in going forward for a new contract she should complete and return an application form before 10th November, 1999.
On or about the 9th November, 1999, the CEO informed the complainant that he would not be considering her for future employment until the matter of her sexual harassment complaint was resolved; accordingly, she made a formal complainant by letter dated 9th November, 1999. The complainant was not offered or provided with work after 14th November, 1999, and contends that she was the only driver who was not kept on. She sent in a completed application form on 17th November, 1999, for a new position in line with the memo dated 5th November, 1999.
The complainant submits that, following the failure of the respondent to offer or provide any work following the 14th November, 1999, she was entitled to regard herself as having been dismissed and that such dismissal amounts to discrimination and or victimisation on account of her having made a sexual harassment complaint.
The respondent’s caseLegal counsel on behalf of the respondent indicated that the complainant was employed on 11th April, 1999, with 14 other drivers and contends that her employment status was not permanent. It is submitted that she was on a fixed-term contract for six months. The respondent maintains that the complainant is seeking redress in circumstances where she was not dismissed but, instead, her employment contract ceased through effluxion of time. The respondent referred to a letter from the complainant dated 26th July, 1999, which set out her hopes of being made part time, and eventually considered for a permanent position as a driver. The respondent states that this was not the language of somebody who believed themselves to have been hired on permanent contract. The complainant failed to submit an application form as set out in the CEO’s memo of 5th November, 1999, and consequently she was not re-employed. The respondent maintains that there is no link between the sexual harassment compliant and her failure to be successful in any application for future employment.
The respondent denied that she was the only employee who, after applying for a new job, did not receive one, stating that of the 32 temporary drivers hired for the temporary summer contract and in employment in late October/early November 1999, 23 applied to be considered for re-hiring for future contracts, of which only 12 were re-hired on a temporary basis to cover the new temporary contracts.
The respondent, in its submission to the Equality Officer, stated that the complainant had given verbal notice of her intention to leave the company with effect from 13th November, 1999.
The respondent did not appeal the Equality Officer’s decision that she has been sexually harassed and discriminated against on the grounds of gender, contrary to section 23 of the Employment Equality Act, 1998.
In response to the complainant’s successful case at the Equality Tribunal, the respondent cited the case ofFiona O’Hanlon v ESB DEC/E/2001/022where the complainant took a case pursuant to Section 77(1) to the ODEI, which is appealable to the Labour Court, and a case pursuant to Section 77(2) to the Labour Court in relation to dismissal. They cited the decision of the Equality Officer to the effect that a finding of discrimination did not prejudge the case for discriminatory dismissal. The respondent stated that the fact that the complainant had successfully brought proceeding for discrimination should have no bearing on the present case.
Court Findings
The absence of any member of management presented a difficulty for the Court in its investigation into the case. The Court appreciates that every effort was made by the liquidators and by the respondent’s legal counsel to present their case.
The respondent relied on the fact that the complainant was employed on a fixed-term contract to support their case that she was employed on a temporary basis and not on a permanent basis. This contention was the basis for the premise that “her employment contract ceased through effluxion of time”. The Court would accept such a contention if the contract were in accordance with the terms of the Unfair Dismissals Act, 1977-1993. A fixed-term contract must be in writing, must specify a definite expiry date and may include a clause prohibiting the employee from making a claim for unfair dismissal on grounds of non renewal of the contract. At the hearing, the respondent accepted that the complainant’s contract was not for a definite period of six months, but had in fact lasted for a period in excess of seven months.
Subsequently, the respondent submitted that the contract was for the summer season and that it had concluded in accordance with that specified purpose. The Court has a difficulty accepting this premise, as once again the Unfair Dismissals Acts 1977-93 requires such a contract to be in writing and to specifically state that the contract will expire on completion of the season. No written contract was supplied to the complainant and, consequently, no exclusion of liability under the Acts was provided on the expiry of the contract.
It is clear from the memo dated 5th November, 1999, that there was in existence a “Summer Season Driving Team” and that “the close down of the augmented airport summer shuttle bus service” created a need for fewer drivers. It is also clear from this memo that the respondent “hoped to be in a position to offer extended contracts” to these drivers but, due to an “uncertainty of requirements” beyond that date, it was only in a position to seek applications for possible future employment. It is not clear from the information supplied whether the complainant was employed as one of the “Summer Season Driving Team”. In her evidence to the Court, the complainant stated that she was employed on a permanent basis and denied the respondent’s contention that she was temporary. She held the view that she should not have received the 5th November memo as she was not one of the Summer Season Driving Team and it was on that basis that she had not completed the application form at that time.
She also denied that she had given verbal notice of her intention to leave the company on 13th November, 1999.
By letter dated 17th November, 1999, she completed the application form and on 24th November the CEO acknowledged her interest in securing a full-time permanent position, none of which were available at that time. In a letter from the CEO dated 10th December he referred to the recent recruitment of drivers on full-time, short-term contracts and asked if she wished to have her form passed on to the recruitment team. At the hearing, she indicated that she phoned the CEO and replied that her application form should be passed on.
During the course of the Court’s intensive investigations, the following information was sought from the Liquidators: -
-details of all permanent full time drivers,
-details of all permanent part time drivers
-details of all seasonal full time drivers
-details of all seasonal part time drivers
-full list of all employees
-dates of commencement of employment
-dates of cessation of employment
-details of all buses used by the employees
-details of rosters
The liquidator supplied as much of the information as was available and cooperated with the Court at a hearing convened on 4th December, 2003, for this purpose of dealing with this information. From this information, the Court has ascertained that the complainant was employed to drive buses 1 to 4, which were the permanent buses, and not those contracted for the summer season - until she changed to a part-time roster in October, 1999. The information supplied also confirms that a number of drivers were hired in May, 1999, to cover the summer season and that the complainant has been employed prior to that date.
Included in the information supplied by the Liquidator was a roster which mentioned that the complainant had given notice of her intention to leave the company with effect from 13th November, 1999. However, the Court accepts the complainant’s own evidence that no such notice was given. In deciding upon the veracity of this evidence, the Court must take account of the respondent’s submission to the Court that the termination of her employment was due to an “effluxion of time” in accordance with her contract of employment.
These facts, coupled with the Court’s conclusion that she was not employed on a fixed term or specified purpose contract and the complainant’s own evidence that she was employed on a permanent basis, lead the Court to conclude that her employment status was permanent.
Having found that the complainant’s employment was on a permanent basis, the Court must then examine the circumstances surrounding the memo of 5th November, 1999, which culminated in the complainant not being offered or provided with work after 14th November, 1999. Having examined these circumstances, the Court is satisfied that the complainant was constructively dismissed on 14th November, 1999.
In accordance with Section 77(2) of the 1998 Act, the Court must then consider whether the dismissal occurred in circumstances amounting to discrimination in contravention of the Act, or in circumstances amounting to victimisation. The Court must consider whether her complainant of sexual harassment by the Transport Manager influenced the decision to dismiss her.
Prior to her receipt of the5th November memoon 7th November, the complainant contacted the CEO and explained what had happened concerning the incident with the Transport Manager - which was the subject of the sexual harassment complaint. At that time, she indicated her fear that her job was threatened. At the hearing, the complainant indicated that the Transport Manager in late August/early September had threatened to “fire and rehire those whom he wanted to”.
The Court is satisfied, based on the facts, that the dismissal was due to circumstances amounting to victimisation in contravention of the Act.
The respondent, in accepting the findings of the Equality Officer, accepted that the sexual harassment had actually occurred.
The Court is satisfied that the exclusion from the roster of the complainant after 14th November, 2003, constituted a dismissal as defined by Section 2(1) of the Act. As the presumption of discrimination had not been rebutted, the complainant is entitled to succeed.
Determination
On the evidence before it, the Court is satisfied that there is sufficient evidence from which it may be presumed that there has been discrimination in relation to the complainant in the manner in which her contract terminated following the complaint of sexual harassment.
Accordingly, the Court is satisfied that the dismissal occurred in circumstances amounting to victimisation contrary to Section 77(2) of the 1998 Act, and the Court awards compensation of €9,000
Signed on behalf of the Labour Court
Caroline Jenkinson
7th January, 2004______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.