FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : AN EMPLOYER (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - A WORKER DONAL TAFFE & CO SOLICITORS DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Application for redress under Section 77(2) of The Employment Equality Act, 1998
BACKGROUND:
2. The worker referred her case to the Labour Court on the 4th of July, 2004, in accordance with Section 77 of the Employment Equality Act, 1998. A Labour Court hearing tookplace on the 3rd of December, 2004, in Roscommon. The following is the Court's determination:
DETERMINATION:
The complainant claims that she was constructively dismissed from her employment in circumstances amounting to victimisation, by reason of the fact that her employer failed to properly investigate and respond to her complaint of sexual harassment by a colleague. The complainant states that the Company’s failure to pay her salary after 30th January, 2003, coupled with their failure to properly investigate her complaint of sexual harassment constituted circumstances in which it was reasonable for her to regard herself as having being constructively dismissed on that date. The complainant brought a claim seeking redress pursuant to Section 77(2) of the Employment Equality Act, 1998, (the Act).
The respondent denied that the complainant was dismissed, and submits that her employment was not terminated either by the complainant or by the respondent. It rejects the notion that it failed to act in an appropriate manner following receipt of a complaint of sexual harassment.
In accordance with Section 77(2) of the 1998 Act, the Court must consider whether the dismissal occurred in circumstances amounting to discrimination in contravention of the Act.
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.
The complainant alleges that she was subjected to an incident of 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 complainant’s Case
On Wednesday 8th January, 2003, the complainant reported an incident to the Production Manager of inappropriate touching by another member of staff. The General Manager was away when the incident occurred.
The Production Manager told the complainant that the incident was a “sackable offence” and that the alleged harasser (a foreign national) would not be allowed to work until the General Manager returned on the following Monday.
The complainant states that the alleged harasser was brought to the Production Manager’s office, where he apologised to the complainant and said that it was meant as a joke. Later that day the Production Manager informed the complainant that the alleged harasser would not be suspended “due to the language barrier” and that further action would await the return of the General Manger as he was fluent in the language. He indicated to the complainant that if she did not wish to work in the same place as the alleged perpetrator that she could stay at home on full pay. The complainant took one day off work. The following week she noticed that she had been deducted one day's pay for the day that she was absent.
On his return on the following Monday 13th January, 2003, the General Manager took a statement from her and subsequently took statements from the alleged harasser and another co-worker. The complainant alleges that the General Manager told her that the alleged harasser and the co-worker stated that it was a “tight squeeze” and that in passing her, the alleged harasser had placed his hand on the complainant’s waist in order to get past her. The General Manager had also taken statements from another two workers also present at the time who stated that they had not seen the incident, although the Production Manager observed that the complainant was upset.
The complainant states that the General Manager told her that in view of the circumstances he could not justify further disciplinary measures against the alleged harasser but that his contract of employment was coming to an end on 9th February, 2003, and it would not be renewed. The complainant stated to the Court that she was aware that his contract was not going to be renewed in any event.
The following day 14th January, 2003, in a further conversation with the General Manager, he explained that the alleged perpetrator was of the view that what had happened was normal behaviour and that she had also touched him in a similar manner in the past and that he could produce more than 30 witnesses to that effect. At this point the complainant handed in her notice to take effect from 21st January 2003. The General Manager asked her to think about it for a few days and not to throw away 15 years' service for the sake of one incident.
On Wednesday 15th January, 2003, the General Manager again spoke to the complainant and asked her to work on 22nd January, the day of a very important audit. He offered her the opportunity not to leave the Company and offered her two-weeks' paid leave from 22nd January until 5th February, by which time the alleged harasser would have left the employment of the Company. When she stated that the audit was not of her concern the General Manager told her “to get out of his sight and not be wasting his time”.
However, the complainant accepted the respondent’s offer and worked until 22nd January and then availed of the two-weeks' paid leave.
On 3rd February, 2003, the complainant stated that she was so traumatized by the events of the alleged harassment and the failure of the Company to properly discipline the alleged harasser that she felt unable to return to work and consequently submitted a sick certificate to that effect from her doctor. This certificate covered the period from 6th February to the 13th February. In her next pay cheque, she found that the Company had deducted the last three days of the two-week paid leave promised to her.
The complainant indicated to the Court that it was her belief that the respondent assumed her illness was a ‘hoax’ and, therefore, they decided to refer her to see a Company appointed doctor.
Subsequently, through her trade union representative, she arranged a meeting with the respondents to discuss three matters: -
(a) The failure of the Company to afford the complainant her pre-maternity position on return to work following her maternity leave.(b) The repeated failure of the Company to resolve this issue when requested to do so by the complainant.
(c) The failure of the Company to adequately address the complainant’s concerns following the sexual assault perpetrated on her by another member of staff.(Counsel for the complainant advised the Court that items (a) and (b) were not part of these proceedings.)
At that meeting, which was held on 14th March, 2003, the respondent offered to pay the complainant’s wages from 31st January to that date. The complainant indicated that she had “no confidence” in management and declined their offer, and indicated that she would be bringing a claim against the Company for compensation for the discrimination. The complainant continued to send in doctor’s certificates until 28th August 2003.
The complainant contends that the respondent's failure to deal properly with her complaint of sexual harassment together with their deduction of her pay for the last three days of her leave period constituted a constructive dismissal on the 31st January 2003, the last date on which she was paid by the respondents.
The respondent’s case
On 8th January, 2003, the complainant mentioned that there had been an incident to her supervisor. She was upset and he suggested that she should speak to the Production Manager, and accompanied her to his office.
The Production Manager took statements from both the complainant and the alleged perpetrator, but could not proceed “due to the language barrier” and decided that further action should await the return of the General Manager, as it would be more appropriate for him to carry out the investigation, due to his fluency in the Alleged harasser’s native language. The Production Manger suggested to the complainant that she should stay at home on full pay the next day. She did come to work on the Friday and completed her shift without incident. He denied that she stated that the incident was a “sackable offence”.
On Monday 13th January, the Production Manger briefed the General Manager, who took a statement from the complainant, informed her that he would conduct a full investigation into the incident and keep her fully informed.
The respondent stated that the complainant demanded that the alleged perpetrator be dismissed immediately and informed the General Manager that if this did not happen that she would resign. He requested her to wait until the investigation was complete.
After taking statements from five people, the General Manager, on Tuesday 14th January, decided not to take any immediate action or to instigate any disciplinary procedures against the alleged perpetrator, as he did not have enough evidence. He informed the complainant of this outcome. He indicated that at no point did any of the interviewees indicate that the alleged harasser had apologised and that the complainant did not mention the apology to him. He stated that she was upset and that while the respondent was sympathetic to her there was no evidence to support her allegation. He asked for 24 hours to come up with a solution.
On Wednesday 15th January, the General Manager again spoke to the complainant and informed her that he would not be renewing the contract of the alleged perpetrator and consequently that his employment would terminate on Friday 31st January 2003. He asked her to work until 22nd January (the day of the important audit) in a different section of the plant, away from the alleged harasser. Thereafter, he would pay her for seven days' leave until Monday 3rd February, following which she could return to work as the alleged perpetrator would no longer be employed by the Company. The respondent indicated to the Court that the complainant seemed happy with this outcome, and he understood that a plan had been agreed between them, which alleviated her concerns.
The alleged perpetrator’s employment terminated on 31st January 2003.
It is the respondent’s contention that the complainant agreed to this arrangement and never tendered her resignation. The General Manager stated that they expected her to return to work on Monday 3rd February, and when he received the doctors’ certificate on Wednesday 5th February, he was annoyed. He decided to dock her the last three days of her holiday pay. He wrote to her on 5th February, 2003, and asked her to attend a meeting to discuss her difficulties as the certificate indicated that she was suffering from stress. The complainant refused to attend the meeting, following which he received a letter from her Union representative dated 17th February 2003, requesting a meeting of the parties.
The complainant continuously supplied medical certificates for the period from 6th February, to 4th September, 2003, stating that she was unable to attend work due to stress.
The Union’s letter requested a meeting with the Company to discuss the company’s failure to address her concerns regarding her position on return to work following maternity leave and to adequately address the complainant’s concerns following the sexual harassment perpetrated on her.
The meeting was held on 14th March, 2003, at which the Company explained that due to the lack of evidence, the Company were not in a position to instigate any disciplinary action. The respondent suggested to her that she should return to work to discuss her grievance and agreed to pay her full pay for the period she had not attended work, i.e. approximately six weeks. Her Union representative informed the Company that she would not be accepting this offer and that she would be instead pursing a claim for constructive dismissal and seeking monetary compensation.
The respondent indicated to the Court that due to a complete lack of evidence to support her claim, the Company was not in a position to instigate any disciplinary action against the alleged harasser and that in conducting the investigation it had discharged it’s obligations under the laws of natural justice.
Findings of the Court
In considering this case, the Court must examine the reasons for the dismissal. The respondent states that it did not terminate the complainant’s contract of employment; indeed it states that there was in fact no dismissal as the complainant had rescinded her notice furnished on 14th January 2003, had continued in employment and was furnishing medical certificates until September 2003 – post the date of claim under this Act.
Counsel for the complainant contends that the complainant terminated her employment in circumstances amounting to constructive dismissal due to victimisation,by reason of the fact that her employer failed to properly investigate and respond to her complaint of sexual harassment by a colleague.
The first issue the Court must consider is whether the complainant was entitled to, and was it reasonable to, regard her contract of employment as terminated under the circumstances. If there was no dismissal then the Court has no jurisdiction to hear the case.
When questioned by the Court as to the date of the termination of employment, Counsel for the complainant stated the complainant’s dismissal date should be deemed to have occurred on 31st January 2003, as the previous day was the last day on which she was paid by the Company.
The Court is of the view that the respondent’s main concern when the complainant handed in her notice on 14th January, 2003, was to ensure her availability for the audit on 22nd January, 2003, and the respondent appears to have been indifferent as to whether or not the complainant remained in its employment after that date.
An examination of the Company appointed doctor’s report is significant. The Court notes that the doctor states that:
- “The complainant is genuinely suffering from the effects of work stress, which she relates in particular, to the alleged incident at work on 8th January 2003, and to management’s failure to deal with the matter in a fair and satisfactory manner.”
He recommended that:
“management should consider utilising the services of an outside agency to act as an intermediary, to attempt to resolve this complicated industrial relations situation".
Management did not act on this recommendation.
The Court has been presented with conflicting evidence concerning the agreement on the amount of time off allowed as paid leave in return for the complainant co-operating with the audit. The respondent indicated that he would pay her until 3rd February whereas the complainant was of the view that she was off until Wednesday 5th February. The Court attaches significance to the fact that in evidence, the General Manager admitted to the Court that he was annoyed that the complainant did not return to work on 3rd February and therefore decided not to pay her. The Court is satisfied that this was a breach of the agreement reached on 15th January 2003. The Court also attaches significance to the respondent’s decision not to pay the complainant her sick pay entitlement for the period of her certified sick leave in accordance with the company’s policy on sick pay. The Court is of the view that a reasonable employer, having referred the complainant to the Company appointed doctor, would have acted upon the recommendations contained in his report. The respondent failed to do so.
The Court is satisfied that these reactions were directly related to the complaint of sexual harassment. From all the evidence presented, the Court accepts the complainant’s contention that it was her belief at the time, that the respondent did not take her complaint seriously and did not treat it in a sensitive manner. It was not prepared to take any disciplinary action against the alleged harasser, nor did it accept that she genuinely experienced stress and trauma as a result of the sexual harassment incident, and that once the audit was complete it was not particularly interested whether she remained in its employment or not. The Court also accepts the complainant’s contention that there was little point in pursuing her grievance any further.
The Law Applicable.
Section 2(1) of the Act defines a dismissal as including:
- “[T]he termination of a contract of employment by the employee (whether prior notice of termination was or was not given to the employer) in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled to terminate the contract without giving such notice, or it was or would have been reasonable for the employee to do so….”
This definition is practically the same as that contained at section 1 of the Unfair Dismissals Acts 1977 –2001 and the authorities on its application in cases under that Act are apposite in the instant case. It provides two tests, either or both of which may be invoked by an employee. The first test is generally referred to as the “contract” test where the employee argues “entitlement” to terminate the contract. The second or “reasonableness” test applies where the employee asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.
The contract test was described by Lord Denning MR inWestern Excavating (ECC) Ltd v Sharp [1978] IRLR 332as follows:
- “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself discharged from any further performance”
This passage describes a situation in which an employer commits a repudiatory breach of contract. In such circumstances, the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term, which goes to the root of the contract. This is a stringent test, which is often difficult to invoke successfully.
There is, however, the additional reasonableness test, which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer’s conduct may not amount to a breach going to the root of the contract but could, nonetheless, be regarded as so unreasonable as to justify the employee in leaving.
Finally, the authorities indicate that what is reasonable is pre-eminently a question of fact and degree to be decided having regard to all the circumstances of the particular case.
Conclusion.
On the facts which it has found, and set out in this determination,the Court is satisfied that the respondent’s conduct in relation to the complainant amounted to an undermining of the relationship of trust and confidence between the parties, was unreasonable in the circumstances and, accordingly, entitled her to claim that she was constructively dismissed.
The Court is satisfied that the complainant acted reasonably by providing the employer with an opportunity to address her grievance, but without success.
Determination
Having regard to the foregoing, the Court is satisfied that the complainant’s employment with the respondent came to an end in circumstances amounting to a dismissal within the meaning of section 2(1) and in breach of section 77 of the Act. Accordingly, the Court holds that the respondent did discriminate against the complainant contrary to the terms of section 8 of the Act.
The Court further determines that the appropriate redress is an award of compensation. The complainant had 15 years' service with the respondent, and the loss of the accrued value of this service must be reflected in measuring the quantum of compensation. The Court is further satisfied, on the evidence as a whole, that the complainant suffered stress, anxiety and indignity in consequence of the discrimination to which she was subjected. Further, it is well settled that an award of compensation for the effects of discrimination should not be confined to economic loss, but should contain an element, which is dissuasive of future infractions of the principle of equal treatment.
Accordingly, the Court awards compensation in the amount of €17,000.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th February, 2005______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.