DEC-E2008-017 - Full Case Report

1.           DISPUTE      

1.1       The dispute concerns a claim by Ms. D that she was subjected to harassment, sexual harassment and discriminatory dismissal on the grounds of gender, within the meaning of Sections 6 and 14A of the Employment Equality Acts, 1998-2007 and contrary to the provisions of Section 8 of those Acts. 

2.           BACKGROUND

2.1       The complainant alleges that she has been subjected to harassment and sexual harassment on the grounds of gender throughout her employment in the respondent organisation.  She further alleges that her resignation was as a result of the harassment and sexual harassment she suffered and it is her contention that she was subjected to discriminatory dismissal.  The respondent denies the allegations.

2.2             Consequently the complainant referred her complaint of harassment, sexual harassment and discriminatory dismissal to the Director of Equality Investigations on 7^th June, 2006 under the provisions of the Employment Equality Acts, 1998-2004.  In accordance with her powers under Section 75 of those Acts the Director then delegated the claims to Gerardine Coyle, Equality Officer on 5^th October, 2007 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of these Acts.  Following receipt of submissions a joint hearing took place on 9^th January, 2008 and a re-convened hearing took place on 12^th March, 2008.

3.            SUMMARY OF THE COMPLAINANT’S SUBMISSION

3.1       It is the complainant’s contention that she has been harassed, both generally and sexually by the respondent, its servants or agents within the meaning of the Employment Equality Acts, 1998-2004 to such an extent that she had no option but to resign her position as office manager with the respondent on or about 21^st March, 2006.  The complainant is therefore claiming that she was constructively dismissed on or about 21^st March, 2006.  According to the complainant she commenced her employment with the respondent on or about 7^th July, 2005.  She states that she received no written contract of employment.  According to the complainant she had to endure harassment both of a general and sexual nature from the beginning of her employment with the respondent and in particular by the managing director (hereinafter to be referred to as Mr. A) of the respondent organisation.  It is the complainant’s contention that she was subjected to crude, offensive and humiliating remarks, instances of being touched and made to feel very uncomfortable in her employment with the respondent.  The complainant says that the culmination of the instances of both harassment and sexual harassment had the effect of the complainant asking her colleagues not to leave her alone with Mr. A and she was fearful and anxious coming into work of being left alone with him.

3.2             The complainant sets out a chronological list of instances of harassment and sexual harassment that occurred during her employment with the respondent as follows:

               (1)            22^nd July, 2005 (Friday p.m.)

The complainant was in the warehouse at her place of work when Mr. A came in.  Mr. A looked at the complainant’s stomach and licked his lips before saying “I’ll have to stop hiring such sexy young girls it’s just too tempting”.  He then grazed his hand across the complainant’s stomach.  The complainant says that she was made to feel embarrassed and very uncomfortable and wanted to leave work and return home.

(2)       3^rd August, 2005 (Wednesday evening)

The complainant was locking up at her place of work and all of the staff had left except Mr. A.  The complainant says that she was turning off the light in the hallway when he commented on her high heels.  He said “Look at you in your sexy heels, you’re a sexy little thing aren’t you?”  The complainant says that she told Mr. A that he was being inappropriate but he just continued commenting – “I love girls in high heels it’s such a turn on”.  Mr. A then began talking about infidelity and how easy it would be for two people who worked together to have an affair.  The complainant says that she made her excuses that she had to be somewhere and left.

(3)      9^th August, 2005

Mr. A asked the complainant to go for lunch to discuss some staff issues but when they were having lunch he did not talk about work, he instead talked about how many opportunities he had to sleep with women because of the industry he worked in but that he was quite picky about the women he slept with.  According to the complainant Mr. A then proceeded to tell the complainant that he could not function if he did not have sex at least once a day.  The complainant was made to feel extremely uncomfortable around him and as the complainant was leaving he told her that she had a “very sexy walk”.

(4)      6^th September, 2005

Mr. A was showing the complainant samples of a new hair extension product that he was thinking of supplying.  The complainant says that Mr. A proceeded to ask her if she was a natural blonde and made a crude comment about same.  When the complainant replied that she was a natural blonde Mr. A smirked and said “a natural dirty blonde you dirty little bitch”.  The complainant was forced to walk away from Mr. A at this point.

(5)      27^th September, 2005

The complainant was in the office looking for something in the stationary cupboard.  She says that Mr. A walked into the office and made an offensive remark to the effect “While you’re down there …” and began laughing.

(6)      2^nd September, 2005

Mr. A’s father (hereinafter to be referred to as Mr. B) also made inappropriate comments about the complainant.  According to the complainant Mr. B told her that she “was looking very sexy in her skirt”.

(7)      21^st October, 2005

Mr. A continuously came into the office when the complainant was alone and made comments about the clothes she was wearing and her legs.  At one point the complainant says that Mr. A came into the office and asked for sellotape.  When the complainant handed the sellotape to him he remarked “I wasn’t really looking for sellotape I was looking to have a feel of your sexy legs”.  Later on that day in the warehouse Mr. A made further inappropriate comments about going on a night out with the complainant and how the complainant would dress on a night out.

(8)      28^th October, 2005 (Friday evening)

Mr. A called a meeting with the complainant at 4.00p.m.  The complainant told Mr. A that she had to leave at 5.00p.m. sharp.  According to the complainant Mr. A put his hand on her leg and said “that’s a pity because his wife was gone away for the weekend” and he was going to see if the complainant would like to come over.  The complainant told Mr. A not to be so stupid.  The complainant says that Mr. A continued to tell her that she was gorgeous and he continued to insult her boyfriend.

(9)      8th November, 2005

The complainant asked a colleague who worked in the warehouse (hereinafter to be referred to as Mr. C) to attend to the till for the day.  Mr. C replied in a verbally abusive fashion and then stormed off.  The complainant called him back but he ignored her.  According to the complainant she approached Mr. A about this behaviour and was told that he did not want to get involved.  The complainant asked that Mr. C be given a warning but was informed that Mr. C could not be given a warning for swearing and shouting at her because he did not pay tax and therefore employment law did not apply.  The complainant says that Mr. A told her that problems with Mr. C should be dealt with between themselves.  Every time the complainant complained about Mr. C’s behaviour regarding his professional conduct such as bad mouthing staff in front of customers, being confrontational with employees in the presence of company, undermining the complainant’s authority and creating an atmosphere, the complainant was told by Mr. A that there was nothing he could do as Mr. C was being paid cash in hand.

(10)  22^nd November, 2005

Mr. A began shouting at the complainant because one of the girls confronted him about a human resources issue.  Mr. A became verbally very abusive towards the complainant continually shouting crude remarks at her.  The complainant says that Mr. A then returned to the office and insisted on talking to her in private.  The complainant refused to go into a room alone with Mr. A at which stage he became very aggressive and intimidating towards her and began to swear aggressively at her.

Following the above incident the complainant approached Mr. A about the unprofessional, aggressive and inappropriate manner that she was being treated.  The complainant says that Mr. A asked her to stay for three months and he said that he would ensure that the changes that were needed would be implemented by then.  As Mr. A was leaving the office he said “Sure, I’d hate you to leave …you being so sexy”.

(11)  25^th November, 2005

Mr. B made further inappropriate comments about the complainant to one of her colleagues.

(12)  16^th November, 2005

Mr. A asked the complainant to write a letter for a girl that worked in one of his barbers, stating therein that this employee worked for the respondent and he asked the complainant to sign it as the manager.  When the complainant told Mr. A that she was not comfortable with this, he became aggressive towards her.

(13)  2^nd December, 2005

The complainant was in the office with a colleague.  She says that Mr. A stopped talking and stared leeringly at her.  The complainant felt extremely uncomfortable.  She says that Mr. A’s behaviour was witnessed by the colleague who commented that she felt uncomfortable for the complainant and that she should not be alone with Mr. A.

(14)  6^th December, 2005

The complainant was at the till serving a customer.  When the customer walked out Mr. A came over and blocked the complainant’s exit from behind the till.  The complainant says that Mr. A lunged over at her and pulled her towards him in a kind of hug like motion and started to run his hand down her back.  The complainant pushed Mr. A away and told him not to be so inappropriate.  Mr. A shrugged it off by saying “Oh, we are just having a laugh”.

(15)  16^th December, 2005

The complainant was at the till again and couldn’t get the drawer to open.  She says that Mr. A came over to help and got the drawer to open.  It hit the complainant in the stomach and she remarked ‘that it hurt’.  According to the complainant Mr. A proceeded to close the drawer and pressed it open and the drawer hit the complainant again.  The complainant asked Mr. A to stop opening the drawer as it hurt at which he remarked “Oh, I’m sure you like it rough you dirty bitch”.

(16)  12^th December, 2005

Mr. A began talking to the complainant about a client of the respondent organisation whom he claimed wanted to sleep with him.  According to the complainant Mr. A said that she was a gorgeous woman and he would sleep with her only for the fact that she had a horrible personality.  The complainant says that he proceeded to tell her that she looked quite similar to this client but that she had a lovely personality.

(17)  7^th November, 2005

Mr. A informed the complainant that if people wanted invoices for classes that the complainant was to make up fake ones on excel and give them out to people.  The complainant says that Mr. A became aggressive towards her when she refused to make up these fake invoices for persons attending the various classes.

(18)  21^st February, 2006

The complainant was speaking with Mr. A about stock levels.  She says that she was concerned that some stock levels were wrong and that this should be prevented in future.  According to the complainant Mr. A cut her off in mid sentence and said that the complainant’s hair and make-up looked lovely that day – “very sexy”.  The complainant says that she was made to feel completely undermined in her capacity to do her job properly and was forced to walk away.

(19)  27^th February, 2006

The complainant says that both Mr. B and Mr. C were aggressive and abusive towards her in relation to a specific order.  She says that she was made to feel as if the warehouse staff were ganging up on her and she left work that evening feeling extremely upset having been verbally abused by both Mr. B and Mr. C and subsequently being ignored when she attempted to resolve the situation in relation to the order in question.

(20)  28th February, 2006

Mr. B undermined the complainant’s authority by allowing Mr. C time off without checking with her to see if she had sufficient staff to cover his job or even informing her that Mr. C would not be in.  The complainant says that she did not have sufficient staff to cover him as there were only two members of staff due to be in work that day.

Mr. B falsely accused the complainant of robbing money from the till.  According to the complainant Mr. B shouted at her and was both aggressive and confrontational towards her.  The complainant left work feeling extremely upset and felt ill that evening and was unable to sleep.

(21)  1^st March, 2006

The complainant approached Mr. A about the behaviour of Mr. B the previous night and the false allegations that money had been robbed from the till.  Mr. A accepted that the cash in the till was all in order and that no money was missing, yet he refused to discipline Mr. B about his aggressive and abusive behaviour and false allegations made against the complainant.  The complainant felt unwell and was getting stomach cramps from the stress of being harassed and intimidated and asked Mr. A on five separate occasions if she could go home as she was feeling ill and wanted to go to a doctor.  The complainant says that she was told that she would have to face the consequences if she did.  The complainant had no option but to stay in work all day, feeling very upset and ill.

(22)  3^rd March, 2006

The complainant states that she was out sick from work on or about the 3^rd March, 2006 due to stress as a result of her treatment in work.  A sick note was handed in to work on her behalf.  The complainant alleges that Mr. A read out the sick note, which referred to her private medical condition, to many of her colleagues who were present.  The complainant was so upset about this that she was unable to return to work straight away and had to get another sick note.

(23)  13^th March, 2006

The complainant was suspended by the respondent as a result of the alleged and false accusations that there was a discrepancy with the money in the till on or about 28^th February, 2006 notwithstanding the fact that Mr. A had previously accepted that there was no money missing and that the figures balanced.

            The complainant says that each and every instance of the aforementioned acts and conduct including the words spoken and gestures used were unwelcome to her and were regarded by her as offensive, humiliating and/or intimidating.

3.3             It is the complainant’s case that the respondent, its servants or agents failed to prevent her from being harassed both generally and sexually in the workplace and failed to provide her with a stress free workplace.  The complainant states that she was absent from work because of work related stress due to her treatment in work.  Furthermore it is the complainant’s case that the above instances were such that she was left with no option other than to resign and as such is claiming constructive discriminatory dismissal.  The complainant further complains that the respondent had no policies and/or procedures whatsoever in place to deal with grievances, complaints and/or instances of harassment and sexual harassment.  According to the complainant she was not made aware of any complaint or grievance procedure in respect of allegations of harassment or sexual harassment.  She did not feel that there was anyone to whom she could complain as the main perpetrator of the alleged instances of harassment and sexual harassment was her boss Mr. A.  Whenever the complainant complained to Mr. A about her treatment by Mr. B and Mr. C she was told to sort it out herself without any reference to any procedures and/or policies and Mr. A refused to give either individual a verbal or written warning.  It is the complainant’s submission that she was sent a copy of the Staff Booklet for the first time in the post by the respondent after she was constructively dismissed on or about Friday, 31^st March, 2006.

3.4             In terms of redress the complainant is seeking compensation pursuant to Section 82 of the Employment Equality Act, 1998 as amended by Section 36 of the Employment Equality Act, 2004 for the aforesaid discriminatory treatment and dismissal of her by the respondent, its servants and agents and the instances of both harassment and sexual harassment which she has had to endure as a result of the actions and conduct of the respondent, its servants and agents.

4.                 SUMMARY OF THE RESPONDENT’S SUBMISSION

4.1             The respondent completely rejects all allegations of harassment and sexual harassment made by the complainant against various members of staff of the respondent organisation.  It is noted by the respondent that the allegations were made after the complainant was suspended from work for legitimate reasons.  The respondent rejects all of the statements as allegedly made by Mr. A and it rejects the assertions by the complainant that she did not receive a written Contract of Employment or a staff handbook.  It is the respondent’s submission that the complainant is not entitled to any redress pursuant to the Employment Equality Act, 1998 as amended.  The respondent states that the complainant was employed from 7^th July, 2005 as an office manager.  There are approximately nine employees in the organisation, two directors namely Mr. A and his wife. 

4.2             The respondent rejects the complainant’s contention that she was never provided with a written Contract of Employment or a Company Handbook.  According to the respondent the complainant was handed two copies of a Contract of Employment by Mr. A on 27^th July, 2005 and received a copy of the Staff Handbook by email from him on the same day together with a bullying and harassment policy.  The respondent notes that, as part of her duties, the complainant printed copies of the Staff Handbook for distribution to all staff.  The Handbook and holiday request form were sent by the complainant to other staff on 7^th September, 2005.  According to the respondent Mr. A, on a number of occasions, requested the complainant to sign her copy of the Contract of Employment but she delayed doing so and explained that she had to get someone to look over her Contract of Employment on her behalf.  The respondent notes that in November, 2005 a further copy of the Contract of Employment was given to the complainant by Mr. A when she indicated that she had mislaid her previous copy.

4.3             The respondent states that at a meeting between the complainant and Mr. A on 2^nd December, 2005 she was asked to print off contracts for all new staff without personal details to enable Mr. A insert these details later.  In an e-mail dated 7^th December, 2005 the complainant confirmed that she would print off the Staff Contracts and Handbooks by the Friday of that week.  This e-mail also noted that job descriptions would be completed by each of the staff.  In relation to the meeting of 2^nd December, 2005 the respondent further notes that the complainant had thrown out copies of the Staff Handbook and Contract as given to her in early November, 2005 on the basis that they had been touched by robbers during a break-in at the end of November, 2005.  The respondent notes that on 14^th December, 2005 the complainant e-mailed Mr. A with her job function sheet document as prepared by her and she did sign a salary details document on 19^th December, 2005.  Thereafter when the new Contract was printed off by the complainant Mr. A entered her personal details and gave her a signed copy dated 11^th January, 2006.  The respondent notes that this copy of the Contract was not signed or returned by the complainant.  It is the respondent’s submission that in early February, 2006 Mr. A again reminded the complainant of her continued failure to sign the Contract and she verbally conveyed her concerns about the Contract as written.  The respondent says that by e-mails dated 20^th and 23^rd February, 2006 Mr. A requested the complainant to forward her questions about her Contract and she did so by e-mail dated 23^rd February, 2006.

4.4             The respondent states that a member of staff (Ms. A) has stated to Mr. A that the complainant gave her a copy of the Staff Handbook in July, 2005 and she did this as part of her function of printing and copying the Handbook for all staff.  According to the respondent Ms. A received a written Contract of Employment from Mr. A on 27^th July, 2005 and signed it on that date.  It is the respondent’s position that all of the above goes to demonstrate that at least two of the specific allegations as made by the complainant which are objectively verifiable are false and untrue.  It is clear from the evidence that the complainant was presented with a written Contract of Employment and that she failed to pursue the issue with Mr. A despite his requests.  The respondent views this as all the more startling as this was precisely the function encompassed within her position as office manager.  It is the respondent’s submission that the complainant was also furnished with a copy of the respondent’s Staff Handbook and a specific Bullying and Harassment policy contrary to the assertions that are made by her.

4.5             The respondent says that in February, 2006 two issues came to the attention of Mr. A concerning the complainant’s employment.  The first of these relates to the events of 15^th February, 2006.  On that day the respondent says that Mr. A had attempted to make contact with his office by telephone and was unsuccessful in doing so.  The phone was answered by Cathy who would not ordinarily answer the phone.  He asked her if the other staff members were having treatments done at that time and was told that they were not.  The respondent says that in a subsequent telephone conversation with the complainant Mr. A asked her if she had been having a treatment and she denied it saying that she had been doing the till reconciliation.  It is the respondent’s submission that over the course of the next few days Mr. A asked all staff members where they had been on the Wednesday afternoon.  Upon later questioning by Mr. A some of the staff members did confirm that they had been receiving treatments at the time he rang the office.  Mr. A questioned the complainant about her nails and she said that they had been done by her own nail technician even though they looked very similar to those of another staff member.  The respondent says that Ms A told Mr. A that she had done the till role on that particular day, notwithstanding that it was the complainant’s name which appeared as the person who had done so.  The respondent says that Ms. A believes that her name was substituted.  On further questioning the respondent says that the complainant denied that she told Mr. A that her own nail technician had done her nails.  It is the respondent’s contention that on that day (15^th February, 2006) the complainant’s nails were done by Ms. B.  The respondent notes that Ms. B had in the past worked as a nail technician for the complainant but this was only on two occasions as a favour to the complainant.  According to the respondent all of these matters were subsequently put to the complainant at a meeting on 1^st March, 2006.

4.6             The respondent states that the second work-related issue arose on 28^th February, 2006.  On this occasion Mr. B (who was the warehouse manager) noticed a discrepancy in the sales recording system and in the cash recorded in the record system.  According to the respondent it is conscious of its stock system because in the past trainees had access to the shop area and for that reason it was careful about its stock and even at one stage access to the shop was denied to all persons.  It is the respondent’s submission that it was not checking up on the complainant on 28^th February, 2006.  Rather Mr. B noticed that on the sales sheet some products had been sold but on the till report sheet, which is filled in at the end of each day, the tallies for cash did not tally with the cash in the till.  The cash figure on the till report sheet was €585.00 while the cash in the till was higher (the till report sheet also contains information for credit cards and cheques – these are not relevant to the current date).  The respondent says that when questioned the complainant returned to the till area with an envelope containing cash in the sum of €885.00 and at that point the figures tallied.  According to the respondent Mr. B’s concern was that the record up to that point did not in fact tally with the cash in the till.  The respondent says that the complainant then proffered that she had done the calculations in a certain way that she had done in the past while in another employment.  She also stated that there was a lot of voids on the till machine.  The respondent says that Mr. B pointed out that neither of these was the issue rather it was the simple task of tallying that concerned him.

4.7             The respondent says that on 1^st March, 2006 Mr. A asked the complainant to attend a meeting to discuss these two matters.  The complainant requested a witness to attend and Ms. B attended as a witness.  The meeting took place as an informal discussion in the complainant’s office.  At the meeting concerns were raised about the till receipts the previous evening.  The respondent says that it was then that the complainant made allegations that Mr. B had shouted at her on the previous occasion and had accused her of robbing.  Because of this the respondent says that Mr. A reassured the complainant that this was an investigative meeting and that she was not been accused of robbing.  At this meeting the complainant stated that she had never been shown how to do the till reconciliation properly.  The other issue (mentioned above at paragraph 4.5) were raised.  The respondent notes that the complainant mentioned that she was sick of the treatment she was receiving and that she was thinking of going to her solicitor about it.  Following the meeting Mr. A continued to investigate certain matters and over the course of the next few days he took statements from Ms. A, Ms. B and Mr. B and on the basis of these produced a document as a result of the meeting and the statements.  The respondent states that it transpired that Ms. A was a witness to the conversation on 28^th February, 2006 between the complainant and Mr. B and it is her evidence that no shouting took place by Mr. B and he did not accuse the complainant of robbing.  It is also noted by the respondent that following the meeting on 1^st March, 2006 the complainant e-mailed Mr. A stating that new procedures for the till were desperately needed.

4.8             The respondent says that in that e-mail the complainant mentioned that another employee (Ms. C) thought that Mr. C had acted unprofessionally towards a customer and in the manner which he dealt with the money, although the complainant was not there at the time.  According to the respondent the complainant also alleged that Mr. C had acted inappropriately with the money.  As these were allegations of concern to Mr. A the respondent says that on the day in question he spoke to Ms. B and Ms. C and notes that the complainant’s version of events is seriously disputed.  The respondent states that the complainant also made a previous complaint of unprofessional behaviour against Mr. C by e-mail dated 21^st February, 2006 though the incident she complained of occurred a week previous.  It is noted by the respondent that the complainant in her submission states that she asked Mr. A if she could go home on five occasions because she was feeling ill.  This version of events is utterly denied by Mr. A.  According to Mr. A the complainant did mention that she felt sick and that she felt like going home.  Mr. A told her that there was no need as she was not under investigation and the respondent notes that the complainant remained on in work voluntarily thereafter.  Furthermore she stayed late on the day in question raising the issue of Mr. C in a late e-mail that day.  It is further noted by the respondent that in that e-mail no complaint was made by the complainant that she had been feeling sick or that Mr. A had been verbally abusive to her on that day.

4.9             The respondent states that the complainant did not attend work on 3^rd March, 2006 and a sick note was submitted on her behalf.  She re-attended work on 13^th March and on that day the respondent says she was given a letter of suspension by Mr. A and was told to attend a meeting at 10.30a.m. on 14^th March, 2006.  By e-mail that same day the complainant indicated that she would not attend the meeting as she would not be in a position to have someone accompany her, this someone being her solicitor.  According to the respondent the meeting was intended, not as a disciplinary meeting, but as a further investigatory meeting and the letter regarding the meeting clearly showed that if the investigation meeting demonstrated no substance to the allegations the complainant would return to work as normal.  The respondent notes that the letter also stated that if the investigation were to conclude that there was some substance to the allegations she would be required to attend a disciplinary hearing.  By her e-mail the respondent says that it was clear that the complainant was aware that there was documentation relating to the meeting of 1^st March, 2006 and she sought a copy of it for her solicitor.  The respondent states that had the complainant attended the investigatory meeting she would have been furnished with a copy of the documentation in advance of any proposed disciplinary hearing should that be held.  On 14^th March, 2006 Mr. A replied to the complainant’s e-mail in the above terms and re-arranged the meeting for 12 noon on 16^th March, 2006 and the complainant responded that same day stating that her chosen representative (her solicitor) was not available on such short notice.  The respondent says that this e-mail also contained for the first time the allegation that the complainant had been bullied and harassed by the respondent and that she did not feel safe in the meeting environment without an independent third party present in the form of her solicitor.  According to the respondent Mr. A replied expressing his surprise at her allegations of bullying and harassment.  He noted that she was aware of the respondent organisation’s policies and procedures in relation to bullying and harassment as she had helped to role this out to all employees in July, 2005.  Mr. A strongly advised the complainant to attend the meeting on 16^th March but when she did not do so he gave her one further opportunity to attend the meeting and rescheduled it for 21^st March, 2006.  The complainant did not attend that meeting but by an undated letter delivered by a friend on 22^nd March, 2006 she resigned her employment citing that she had been subjected to sexual harassment and bullying by Mr. A and other employees in the respondent organisation which had affected her health.  The respondent notes that Mr. A replied on 28^th March, 2006 denying the allegations and enclosed a copy of the respondent’s Bullying and Harassment and Grievance Procedures.  He also pointed out that the complainant could have raised the issues with the other Director of the organisation (his wife) and that she could reconsider her position, but she did not do so.

4.10         In response to the complainant’s submission the respondent makes the following observations:

·       The complainant stated that she would ask her colleagues not to leave her alone with Mr. A as she was fearful and anxious coming into her employment in case she was left alone with him.  The respondent notes that no evidence has been provided of this and no work colleagues have been named by the complainant.  According to the respondent specific incidents outlined in her submission are denied;

·       In terms of the alleged incident which occurred on 3^rd August, 2005 the respondent notes that it would be unusual for Mr. A to be present in the organisation on a Wednesday evening.  The respondent says that it would be unusual for any member of staff to be left behind as many of the staff leave together;

·       The events alleged to have occurred on 9^th August, 2005 are denied as Mr. A was away on holidays with his wife and family;

·       Mr. A states that he showed the hair extension product to three persons namely the complainant, Ms. A and Ms. B and he denies making the alleged comment;

·       In relation to the 28^th October, 2005 the respondent denies that a meeting was held at the time in question as Mr. A was at that time bringing his wife to the airport as she was going away on business with another work colleague.  The respondent says that on the weekend in question Mr. A was looking after his children and a nanny would have been staying with them;

·       In relation to Mr. C the respondent says that Mr. A denies any impropriety in his tax affairs and notes that Mr. C was not an employee but was engaged as a consultant;

·       The respondent says that it was Mr. A’s belief that the meeting of 22^nd November, 2005 was an appraisal meeting.  It is acknowledged that at one point Mr. A did curse, as witnessed by Ms. A, but he immediately apologised for his remark.  The respondent says that Mr. A had understood that the complainant had accepted the apology which was not directed towards her but was bearing general exasperation.  While it is not denied that Mr. A said ‘Sure, I’d hate you to leave’ the respondent says that it was not said in the manner as alleged by the complainant;

·       The detail as set out by the complainant in relation to 25^th November, 2005 are denied and the respondent notes that the identity of the colleague to whom Mr. B allegedly made the remark to is unknown;

·       In relation to the matters as alleged on 16^th November, 2005 the respondent states that they relate to a separate company run by Mr. A whereby an employee of that company needed a letter for mortgage purposes and Mr. A asked the complainant to draft such a letter and sign it per pro him.  According to the respondent the complainant was confused about the matter and has now blown it all out of proportion and it is denied that Mr. A became aggressive with the complainant;

·       The respondent notes that the witness is not named in relation to the allegation that Mr. A leered at the complainant on 2^nd December, 2005;

·       In terms of what is alleged on 6^th December, 2005 the respondent notes that the area in question can be seen from an overhead gallery.  The respondent also notes that the complainant wrote a lengthy e-mail of 7^th December, 2005 to Mr. A in which no complaint is made or indeed alleged or even hinted at in the e-mail;

·       The respondent says that the complainant was never asked to make up false invoices and it notes that after her resignation fake invoices were found on her computer;

·       In relation to 1^st March, 2006 the respondent notes that this allegation was made on the day in a late e-mail.  The allegation was not corroborated by any other person and is denied.  The respondent further denies that nothing was done about the allegation and says that it was investigated and found to have no substance;

·       On 3^rd March, 2006 when the sick note was handed in by the complainant’s boyfriend it was opened because he requested a copy of it but the respondent denies that it was read aloud;

·       The respondent rejects all of the allegations made by the complainant and notes that she has not named any witnesses and any witnesses to any of the alleged events are in fact in disagreement with the complainant’s version of events.

4.11         The respondent notes that the allegations of harassment and sexual harassment were made after an investigative process began against the complainant.  According to the respondent no evidence has been presented to objectively show that the complainant raised any concerns with any other member of staff or with the other Director whom the complainant knew at work.  The respondent states that an employment advisory service operates in the workplace and was readily available to staff to raise employment related issues.  It is submitted that no such employment issues were raised by the complainant.

4.12         The respondent rejects the complainant’s version of events and states that the complaint herein is utterly without foundation and was made subsequent to the initiation of the investigatory process.  It is the respondent’s contention that the complainant had every opportunity to raise any issues of workplace bullying and harassment but failed to do so.  In the circumstances the respondent considers that the complainant is not entitled to any relief sought.

5.                 CONCLUSIONS OF THE EQUALITY OFFICER

5.1             The issue for decision in this claim is whether or not the complainant was subjected to harassment, sexual harassment and discriminatory dismissal by the respondent within the meaning of Sections 6 and 14A of the Employment Equality Acts, 1998-2007 on the grounds of her gender and in contravention of Section 8 of those Acts.  In making my decision in this claim I have taken into account all the submissions, both written and oral, from the parties.

5.2             In this case the complainant has outlined a number of incidents of alleged harassment and sexual harassment by staff members, one of whom was the Managing Director (i.e. Mr. A).  The respondent has denied all the allegations.  In situations like this where there is a clear conflict of evidence I must make my decision on the basis of which version of events is more credible. 

5.3             At the hearing of this claim the complainant submitted a diary which outlined various incidents as they had occurred in the respondent organisation.  She stated that, on the advice of her father, she kept a record of incidents which in her view constituted harassment and sexual harassment.  The complainant stated that, in providing material for the submission which was sent to the Equality Tribunal by her legal representative, she used the notes that she made in her diary and a document was typed outlining the incidents.  However the handwritten notes tended to be more detailed.  Having examined the notes in relation to the submission I am satisfied that, in the main, there is no conflict in what the complainant has written in her diary and what is in her submission.

5.4             There is, however, one discrepancy.  In her submission the complainant outlined an incident which she said had occurred on 9^th August, 2005.  In its responding submission the respondent had argued that this alleged incident could not have occurred as Mr. A was on holidays abroad at the time.  When the complainant submitted her diary at the hearing of this claim it was stated in this record that the incident had occurred on 19^th August, 2005.  The complainant stated that the 9^th August, 2005 in her submission was a typing error.  The 19^th August, 2005 was a Friday and I note that Mr. A stated that he was rarely in the respondent organisation on Friday afternoons as he had two children who had to be collected at 1.40p.m. and 2.40p.m.  In response to this the complainant noted that his children were not attending school in August and would, therefore, not have to be collected at that time.  I accept that the respondent was at a distinct disadvantage is not having access to the complainant’s diary prior to the hearing of this claim.  However, I accept that the date of 9^th August, 2005 in the complainant’s submission was a typing error and the correct date was that which was outlined in her diary.

5.5             In terms of the evidence (i.e. that which was set out in writing and that which was given orally) there are a number of points of note as follows:

Complainant’s Evidence:

(i)    In her submission the complainant stated that she did not receive a Contract of Employment.  This was clearly not the case and at the hearing of this claim she accepted that she had received a Contract of Employment.  I note that there was a dispute between the parties as to when she received this Contract.

(ii)  The complainant denied ever receiving a Staff Handbook which contained detailed information on Company Policies and Procedures including grievance procedures.  By e-mail dated 7^th December, 2005 the complainant, as manager, undertook to print out the Staff Handbook for staff members.  I am satisfied that the complainant did have access to the Staff Handbook.

(iii) There is a conflict between the parties over the alleged incident on 6^th September, 2005.  According to the complainant, in her submission and supported by her diary record, Mr. A had showed her a new hair extension product and in so doing had made derogatory comments to her (see paragraph 3.2(4) above).  In its defence the respondent stated that Mr. A had shown this product to a group of three staff members (including the complainant) and he denied making the alleged offending comments.  At the hearing of this claim the complainant stated that Mr. A had shown this product to her in his office.  There was no-one else present at the time he had made the offending remarks.  It was after this that he showed the product to the staff and it is her contention that she (the complainant) did not partake, to any great extent, in discussing the product as she had already seen it.  I note that the complainant, in her diary record, did not record the fact that she had gone to Mr. A’s office regarding another matter when he showed her the product and made the alleged derogatory comment.  In my view this was an important piece of information, which was only submitted when the respondent noted that this product had been shown to the complainant in the presence of two other staff members who both denied that the alleged derogatory comment was made.  I consider that the complainant’s credibility is seriously undermined in relation to this incident.

(iv)The sequence of the alleged incident on 21^st October, 2005 differs somewhat between the complainant’s diary entry and her submission.  While nothing may turn on this it is somewhat surprising that there is a slight difference in the sequence between the two versions.

(v)  It is alleged by the complainant that Mr. A called her to the office at about 3.30pm or maybe later (diary record) because of his concern that staff members were not working while she was out at lunch.  At the hearing of this claim the complainant stated that Mr. A had been out of the office all day and had only arrived at the office at, in all probability, 4.00p.m.  This alleged incident is denied by the respondent.  I find it illogical that Mr. A would allegedly raise this issue with the complainant in circumstances where he was not present in the office to witness the staff not working in the complainant’s absence at lunch.

(vi)In her diary record the complainant notes that she was told to do fake invoices on 7^th November, 2005 (presumably by Mr. A though this is not specified).  The complainant has not made any note of the context in which this request was made.  Given the serious nature of this request it is surprising that the context of the request was not noted at the time.  I note that it was elaborated on in more detail in her submission, which was prepared some seven months later.

(vii)      In relation to the alleged incident on 6^th December, 2005 the context as set out in the complainant’s diary record and that set out in her submission is somewhat different.  In the former she was giving out to Mr. A about Mr. D whereas in the latter she had served a customer and the alleged incident occurred when the customer left.

(viii)    In relation to the alleged incident which occurred on 28^th February, 2006 I note that the complainant’s diary record is very detailed but this level of detail is not included in her submission.  I consider that the exclusion of this information from the complainant’s submission raises questions.  It could be argued that the detail given in this diary record was as a result of the respondent’s submission on the issues arising on that day and this would seriously undermine the diary records and whether they were in fact made at that time.

(ix)In her submission the complainant alleged that Mr. B accused her of robbing but she denied this at the hearing of this claim.

(x)  At the first hearing of this claim Mr. A stated that he was not usually in the workplace on Friday afternoons.  The complainant was unable to confirm if Mr. A was present in the workplace on Friday afternoons during her employment.  This is notable inasmuch as some of the incidents were alleged to have occurred on a Friday afternoon.

(xi)The complainant presented no witnesses to support her version of events.

Respondent’s Evidence:

(a)  The respondent included a copy of the Petty Cash/Till Report which was the subject of the alleged financial discrepancy.  The relevant figures on this report were €885.00 and €585.  A note was made on the report that Mr. B had written €885 and the complainant had written€585.  It was stated at the second hearing of this claim that this note had been written by Mr. A.  However at the first hearing of this claim the respondent (through its representative) had put it to the complainant that it was she who had written €585 but she denied it saying that the style of writing of the €585 was at variance with her style of writing and her style of writing was very clearly set out in her diary.  At the second hearing of this claim it was stated by Mr. B that the complainant had written the top figure of €585 and that when he counted the money which came to €885 he had changed the first figure to an 8 and he had place his initials above this figure.  Mr. B confirmed that it was he who wrote the €585 figure in brackets below.  The evidence presented by the respondent in this matter at the first hearing was misleading.  However I find that the evidence presented by Mr. B in this matter at the second hearing was very credible.

(b) Ms. A gave evidence on behalf of the respondent.  I note that she is still employed by the respondent.  In her evidence Ms. A denied many of the allegations made by the complainant.  She also denied that there was any real friendship between herself and the complainant, that they socialised outside work hours and she stated that they had a good working relationship.  I note that this witness did accompany the complainant and Ms. B to an event after the Christmas party.  The failure by Ms. A to mention this does, in my view, cast a shadow over her evidence.

(c)  At the second hearing of this claim Ms. B gave evidence on behalf of the respondent.  Ms. B no longer works with the respondent but is related to Mr. B’s partner.  I did not consider Ms. B to be a credible witness as she could not recall many of the alleged incidents.

(d) Ms. C gave evidence on behalf of the respondent at the first hearing of this claim.  In my view her evidence did not support one party over the other in this case.

(e)  The Sales and Marketing Manager (hereinafter to be referred to as Ms. D) gave evidence on behalf of the respondent.  Ms. D is no longer employed by the respondent but has business dealings with the respondent.  Ms. D stated that she had a good working relationship with Mr. A and with the complainant.  She stated that she went out to lunch with the complainant where they discussed personal and work related issues but at no time did the complainant raise any concerns in relation to Mr. A.  The complainant alleged that she had contacted Ms. D by phone after the alleged incident on 28^th October, 2005 but Ms. D stated that she had no recollection of this.  I note that the complainant did not record the fact that she had contacted Ms. D about this matter either in her diary or in her submission.  It was Ms. D’s evidence that Mr. A’s fault was that he was too trusting of his staff and too naïve.  I found Ms. D to be clear, articulate and a very credible witness for the respondent.

(f)   Mr. A was questioned by the respondent’s representative in the first instance and by the complainant’s representative.  He denied all the allegations made by the complainant.  Mr. A did however accept that on one occasion he did curse in the presence of the complainant and other staff members.  He said that the curse was not directed specifically at the complainant and he immediately apologised for having cursed.  According to Mr. A this apology was accepted by all the staff present at that time.

(g)  Mr. B was a witness for the respondent.  Mr. B is Mr. A’s father and he stated that he is employed by the respondent in the capacity of Warehouse Manager.  According to Mr. B he works from Monday to Thursday and never on a Friday.  I noted that the two allegations made against Mr. B were alleged to have occurred on a Friday.  Mr. B in evidence stated that he could recall one of the alleged dates very well because he was going on holidays the following day and it was put to him by the complainant’s representative that he came to work on that Friday, specifically because he was going on holidays the following day, but Mr. B denied this.  I note that the complainant or her representative made no further comment or submitted any further evidence on this matter.  I also found Mr. B’s evidence in relation to the Petty Cash/Till Report to be very credible.  It is my view that Mr. B was a very direct and credible witness in this case.

(h)  The complainant brought an order to the Warehouse at 5.45p.m on 27^th February, 2006.  According to Mr. B she demanded that this order be filled because it was for Mr. A’s wife and he wanted to bring it home to her.  In his evidence Mr. B stated that the finishing time in work was 6.00p.m and orders received at 5.45p.m would not be started that late.  Mr. B stated at the hearing that both he and Mr. C wanted to leave work at 6.00p.m and Mr. B noted that Mr. C was anxious to leave as his partner was pregnant at that time.  In his evidence Mr. B accepted that both he and Mr. C had shouted at the complainant but he stated that she had reacted aggressively and demanded the order be filled.  Mr. B stated that the order was filled that day with the assistance of office staff including the complainant.  In her diary evidence the complainant states that both Mr. B and Mr. C were “shouting me down and I was shaking”.  The outline of the incident by the complainant in her diary is sparse with the detail e.g. she refers to an urgent order but does not say that it was for Mr. A’s wife, she does not state that the warehouse staff completed the order or that she had assisted them despite their verbal abuse.

(i)    At the first hearing of this claim the respondent stated that the complainant endeavoured to undermine Mr. A.  According to the respondent when staff asked the complainant for leave she would tell them that she (the complainant) had to ask Mr. A.  Mr. A would tell her that the staff member could have leave as long as there was adequate cover and particular tasks were completed.  The respondent says that the complainant would then tell the staff member that she could not have leave.  The staff member would approach Mr. A who would say that she should have the time off if there was adequate cover and specific tasks completed.  Then the staff member would say this to the complainant who would say that Mr. A had obviously changed his mind.  On another occasion the respondent says that the complainant told Ms. A and Ms. B that one of them was going to be dismissed.  The respondent says that this was clearly not the case and it was not even being considered.  I note that Ms. A’s interpretation of this was that it was either Ms. A or Ms. B who was going to be dismissed.  However Ms. B’s recollection was that the complainant had said that one of them might be dismissed and Ms. B’s view was that the complainant was including herself as one of the staff members who could be dismissed. 

(j)   I note that the respondent did not have any problem with the complainant’s performance as she was on probation until 25^th January, 2006 and this was not extended.

5.6             On the basis of all of the above I find that the evidence from the respondent is overall more credible than the evidence submitted by the complainant.  Having regard to the definition of harassment and sexual harassment under Section 14A of the Employment Equality Acts, 1998-2007 I find that the evidence does not support the complainant’s contention that she was subjected to harassment and sexual harassment by the respondent.

5.7             The complainant has alleged that she was subjected to discriminatory dismissal as a result of the alleged harassment and sexual harassment.  As I have found that the evidence does not support the contention that the complainant was subjected to harassment and sexual harassment under the legislation I find that she was not subjected to discriminatory dismissal as alleged.  The complainant’s decision to resign her position in the respondent organisation was significantly influenced by the impact on her character of the alleged financial discrepancy.

5.8             I note that the respondent’s own Handbook does not outline the course of action an employee must take where the allegations are against the Managing Director as in this case.  It was suggested by the respondent at the first hearing of this claim that the complainant could have approached Mr. A’s wife who is a partner in the respondent organisation.  I find that this suggestion is not at all practical as a staff member who is being subjected to sexual harassment would not want to approach the alleged harasser’s wife in the matter.  Rather in circumstances such as these the staff member should be able to approach an independent person nominated for such purposes.  The respondent also noted that it has access to an employment advisory service which the complainant could have contacted on a confidential basis in relation to any employment related issues.  At the hearing of this case it was stated that the telephone number of this organisation was on the notice board behind the complainant’s desk.  The complainant stated that it was her understanding that she could not contact this service and it was only Mr. A who could contact them.  If this service is available for staff members to contact on a confidential basis then this fact should be made known to staff in writing and also should be set out in Contracts of Employment.

6.                 DECISION

6.1             In view of the foregoing I find that the respondent’s evidence is more credible than the complainant’s evidence and in these circumstances I find that Ms. CD was not subjected to harassment, sexual harassment and discriminatory dismissal by NB Limited as alleged in terms of Section 6 and 14A of the Employment Equality Acts, 1998-2004 and contrary to the provisions of Section 8 of those Acts.

6.2             I recommend that the respondent clarify in writing to staff members the appropriate avenue of complaint in circumstances where a claim is being made against the Managing Director or Partner in the respondent organisation.

            ______________________

            Gerardine Coyle

            Equality Officer

            28^th April, 2008

SUMMARY[1]

Ms. CD (complainant) Represented by Ms. Leahy B.L. instructed by Brendan Weldon & Co., Solicitors  vs  NB Limited (respondent) Represented by Mr. Power B.L. instructed by Denis McSweeney Solicitors:

Employment Equality Acts, 1998-2007  Sections 6, 8 and 14A -  Employment  -  Harassment  -  Sexual Harassment  -  Discriminatory Dismissal  -  Gender

Background:

The complainant alleges that she has been subjected to harassment and sexual harassment on the grounds of gender throughout her employment in the respondent organisation.  She further alleges that her resignation was as a result of the harassment and sexual harassment she suffered and it is her contention that she was subjected to discriminatory dismissal.  The respondent denies the allegations.

Conclusions and Decision:

Having examined all of the evidence in this case the Equality Officer has found that the respondent’s evidence is more credible than the complainant’s evidence.  In the circumstances the Equality Officer has held that the complainant was not subjected to harassment, sexual harassment and discriminatory dismissal as alleged.  The Equality Officer has recommended to the respondent that it puts in place an appropriate avenue of complaint where the complaint is against the Managing Director or a Partner in the respondent organisation and that this avenue of complaint be included in Contracts of Employment and notified to staff in writing.   

[1]This Summary is provided for convenience only and is not part of the Decision for legal purposes.