FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : AN ENGINEERING COMPANY - AND - A WORKER (REPRESENTED BY THE EQUALITY AUTHORITY) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Application for redress under Section 77(2) of The Employment Equality Act, 1998.
BACKGROUND:
2. A Labour Court hearing took place on the 12th June, 2007. The following is the Court's Determination:-
DETERMINATION:
The Complainant claims that she was discriminated against in being dismissed from her employment with the Respondent in circumstances amounting to victimisation, on account of her having made a complaint of sexual harassment by her manager. The Complainant brought a claim seeking redress pursuant to Section 77(2) of the Employment Equality Act, 1998, (the Act).
The Complainant’s legal representative claimed that her employer summarily dismissed her less than one month after making the complaint, without explanation and without the benefit of any fair procedures such as a right of appeal or right to representation.
The Respondent denied that the Complainant was dismissed for having made the complaint and submitted that her employment was terminated due to her poor timekeeping.
In accordance with Section 77(2) of the 1998 Act, the Court must consider whether the dismissal occurred in circumstances amounting to victimisation in contravention of the Act.
The Court was informed that a separate complaint, pursuant to Section 77(1) of the Act, had been made to the Director of Equality Investigations (The Equality Tribunal) in respect of a complaint of sexual harassment and penalisation. At the Equality Tribunal the Complainant sought compensation for the effects of discrimination including humiliation, intimidation, distress and loss of earnings. The Equality Officer found that she had been discriminated against and victimised when she made the complaint of harassment and awarded her €7000 compensation for the effects of the discrimination and €10,000 compensation for the effects of victimisation. In her award the Equality Officer specifically stated that the award of compensation for victimisation was for the humiliation and distress suffered by the Complainant as a result of making the complaint.
The Equality Officer following the precepts laid down by the European Court of Justice in the case ofVon Colsen and Kamann v Land Nordheim-Westfalen (Case 14/83) [1984] ECR 1891case which made it clear that where such individual rights are infringed,"the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions".
This decision was not appealed by either the Complainant or the Respondent.
The Complainant’s Case
The Complainant’s legal representative stated to the Court that on 8th July 2002, the Complainant met with her employer and made a complaint of sexual harassment by her manager. She told the Court that the Complainant made it clear to her employer that she wanted him to take action to stop the harassment. However, he raised the issue of her time-keeping and gave her a verbal warning and asked her to submit the details of her complaint in writing. Her legal representative maintained that the Complainant had received no warnings prior to this.
On 18th July 2002 she received a written warning about her “continual late arrival for work” from her manager, jointly signed and approved by her employer. This letter threatened her with unspecified disciplinary action. Her legal representative informed the Court that following the receipt of this written warning, the Complainant made enormous efforts to improve her timekeeping and came to work before normal starting time each day.
Her legal representative disputed the lates and attendance records produced by Respondent, stating that it was not an accurate reflection of the Complainant’s attendance and informed the Court that the time clock was set in such a way that if she arrived even 30 seconds after the starting time, it would register her as being 15 minutes late.
On 19th July 2002 the Complainant sent written details of her complaint of sexual harassment to her employer, by registered post. When she received no response to the letter, she telephoned him to ascertain what was happening. The Complainant informed the Court that the Respondent was quite aggressive towards her on the telephone. He told her that he had spoken to the manager and was satisfied with his version of events. He also told her that he saw no necessity to speak to any other employee about her complaint and indicated that she could contact the Garda� about the matter, if she wished.
On the Public Holiday Monday 5th August 2002, while on sick leave, she received a telephone call from her employer stating that she was dismissed with effect from the previous Thursday, 1st August 2002. When she tried to ascertain the reason for the dismissal he informed her that he did not have to give a reason.
Her legal representative told the Court that the Complainant believed her dismissal was due to the complaint she made and as the complaint was not adequately investigated she claimed that she was discriminated against on grounds of gender.
The Respondent’s Case
The Respondent denied that the Complainant was dismissed due to a complaint of sexual harassment by her manager and held that her dismissal was due to her poor timekeeping.
He informed the Court that the Complainant had commenced employment on 12th February 2002 and initially she was diligent about her time keeping, however, during March 2002 it started to deteriorate and on occasions she did not attend for work at all. After a period in May 2002 when her attendance was particularly bad, the Respondent told the Court that he gave her a formal warning about her time keeping and in June 2002 her production manager gave her a verbal warning and informed her that any further bad timekeeping would result in a written warning.
The Respondent informed the Court that her timekeeping did not improve. At the end of the first week in July 2002, she telephoned him and made an allegation of sexual harassment by her manager. The Respondent met with her on 8th July 2002 to discuss the allegation, at the end of the meeting he spoke to her about a separate issue of her poor timekeeping and explained that it was causing problems for the rest of the production team and gave her a warning. The next day, she arrived 1 hour 45 minutes late and was also late for the following three mornings. It was at that point that he decided to terminate her employment and she finished on 1st August 2002.
The Respondent submitted records showing that the Complainant was late on 30 occasions during the period of her employment and was absent without reason for 9 days.
The Respondent informed the Court that he considered the allegation of sexual harassment as a serious issue and wished to bring it to the attention of the Garda� for further investigation; however, the Complainant did not wish him to do so. She told him she did not want him to do anything but to take the matter up with her manager and have the harassment ceased.
The Respondent asked her for details of the harassment in writing and later he spoke with the manager in question, who denied the allegation.
The Respondent stated that the week following the complaint - commencing 15th July 2002 – the Complainant’s timekeeping continued to disimprove and she was given a written warning on 18th July 2002, headed: -
“notice of dismissal on the grounds of continual poor timekeeping”.
On Monday 22nd July 2002, he received the written details of the complaint. He explained that due to the timing of her letter (after the written warning was issued) and the lack of any corroborating evidence he was of the view that:
- “this was a fictitious situation made up by a young lady who was acutely aware of the precarious position that her job was in due to her continual late arrival for work”
The Respondent stated that the only witness named in the Complainant’s written complaint was her cousin, and therefore it was not possible to get an independent version of events. Therefore, he chose not to speak to her cousin or any other employee, but rather to accept in full her manager’s version of events.
The Court’s Findings
It was not necessary for the Court to make a finding on whether the sexual harassment did or did not occur, as the Equality Officer has already decided that it did and that decision has not been appealed.
In accordance with Section 77(2) of the 1998 Act, the questions for consideration by the Court :
(i) did the Complainant’s dismissal occur due to her poor timekeeping as contended by the Respondent or in circumstances amounting to victimisation in contravention of the Act, as contended by the Complainant,
- or,
Section 74(2) defines victimisation as occurring 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 enactments repealed under this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause under any such repealed enactment”
(b) opposed by lawful means an act which is unlawful under this Act or which is unlawful under such repealed enactment,
(c) given evidence in any criminal or other proceeding under this Act or any such repealed enactment, or
(d) given notice of an intention to do anything within paragraphs (a) to (c).
The Respondent submitted details, produced from the time clock records, of all the Complainant’s attendance details since she commenced employment on 12th February 2002.
The Respondent stated that the Complainant had been issued with verbal warnings about her poor timekeeping in May, June and 8th July 2002; a written warning on 18th July 2002 and dismissed due to her poor timekeeping on 1st August 2002.
The Complainant’s legal representative denied the Respondent’s assertion that warnings had been given in May and June 2002 and held that the first warning issued was at the meeting held between herself and the employer when she made the allegation of sexual harassment.
The Court has examined the timekeeping patterns and noted that there were a substantial number of lates recorded in the period up to 8th July 2002, when she was issued with the verbal warning. During the following ten days there were a further four lates recorded and her employer issued a written warning on 18th July 2002. However, there were no lates recorded after this date however, her employment was terminated on 1st August 2002.
The Court noted that the nine days “absent without reason” referred to by the Respondent in his submission are recorded as sick days on the record sheets.
The Court considered it highly significant that there were no lates or absences recorded between the date of the written warning and the termination of her employment i.e. after the written complaint of discrimination was made and prior to her dismissal.
The Court is of the view that the disciplinary procedures adopted by the Company in this instance were inappropriate, were not carried out in accordance with Code of Practice on Grievance and Disciplinary Procedures S.I. No 146 of 2000. The Court is of the view that the precipitate disciplinary action undertaken by the employer in this case was extraordinary and therefore questionable. Disciplinary action is normally taken on a graduated basis, with more severe sanctions being imposed as the employee reoffends. As there were no lates recorded in the period between the 18th July and 1st August 2002, the Court must conclude that there was no justification for the final sanction of dismissal in those circumstances. The Respondent in his written warning of 18th July 2002 had indicated that her employment would be in jeopardy if the situation of her poor timekeeping continued, which it did not.
Consequently, the only conclusion the Court can come to is that the dismissal was influenced by factors other than her poor timekeeping.
The Court considered it highly significant that her dismissal occurred following the receipt by the Respondent of her written complaint of sexual harassment and the Respondent’s perception that this action wasa fictitious situation made up by a young lady who was acutely aware of the precarious position that her job was in due to her continual late arrival for work”The Court is satisfied having examined all the facts that the dismissal was mainly occasioned by the Complainant having, in good faith opposed by lawful means an act which is unlawful under the Act, contrary to the terms of Section 74 (2) (c) of the Act. Therefore, the Court determines that the Complainant was penalised in circumstances amounting to victimisation.
Redress
At the hearing before the Equality Officer the Complainant sought compensation for the effects of discrimination including humiliation, intimidation, distress and loss of earnings. In accordance with the legislation at the time a complaint of victimisation on the grounds of dismissal was heard directly by this Court - which situation has changed since the Employment Equality Act 2004 and now all complaints of victimisation are dealt with at first instance by the Equality Tribunal and only on appeal to this Court.
The relevant section under the 1998 Act states :
- Section 77
(1) A person who claims
(b) not to be receiving remuneration in accordance with an equal remuneration term,
(c) not to be receiving a benefit under an equality clause, or
(d) to have been penalised in circumstances amounting to victimisation,
(e) may, subject to subsections (2) to (8), seek redress by referring the case to the Director.
- (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 to the Labour Court and shall not be brought to the Director
In the view of this Court the Oireachtas in this section recognised two separate heads of claim in respect of victimisation; one for victimisation occurring whilst the complainant remained in employment, which claim would be brought before the Equality Tribunal; and the other for dismissal amounting to victimisation which claim would be brought before this Court.
In making the award for victimisation, the Equality Officer made no reference to the fact that the Complainant had been dismissed and indeed could not do so as the claim of dismissal amounting to victimisation is dealt with by this Court. Therefore this Court having found that the Complainant was dismissed in circumstances amounting to victimisation must provide the Complainant with redress for the wrong suffered to her. The appropriate redress is an award of compensation.
In deciding the appropriate level of compensation the Court has taken cognisance of the fact that the sum of €10,000 was already awarded by the Equality Officer in DEC-E2006-035 in respect of the victimisation suffered by the Complainant while in the Respondents employment, and this contains an element designed to deter the Respondent from any future infringements of the Act.
Consequently, the Court determines that the appropriate compensation in this case is an award of €5000 to the Complainant as redress for her dismissal in circumstances amounting to discrimination.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
18th July, 2007______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.