EDA0920

Background

This is an appeal by Ely Property Group Ltd against the decision of the Equality Tribunal in a complaint of discrimination by Ms Zena Boyle. The complaint alleges discrimination on the gender ground in respect to conditions of employment, harassment and discriminatory dismissal.

For ease of reference the parties are referred to in this Determination as they were at first instance. Hence Ms Boyle, is referred to as the Complainant and Ely Property Group Ltd, is referred to as the Respondent.

The Complainant was employed by the Respondent in her capacity as a Housing Manager on 25th August 2005. She was dismissed without notice on 4th November 2005.

The Complainant was employed as manager of a student accommodation complex in Donegal. It is the Complainant’s case that she was subjected to aggressive humiliating and offensive treatment by her immediate manager Mr Derek Reid and that this treatment constituted harassment within the meaning of the Act. The Complainant further alleges that offensive graffiti relating to her was placed on a wall of the complex and that this amounted to discrimination within the meaning of Section 14A of the Act. The Complainant contends that the Respondent took no steps, or no adequate steps, to prevent the discrimination. Finally the Complainant contends that she was dismissed from her employment when the Respondent decided to replace her with a male employee.

The Respondent’s position on each of the claims is, essentially, a traverse of that of the Complainant. It denies that the Complainant was subjected to treatment by Mr Reid of the type alleged. It further contends that it took adequate measures to deal with the placing of graffiti on the walls of the complex in which the Complainant worked. The Respondent further denies that the decision to dismiss the Complainant was influenced by her gender. It contends that the Complainant was dismissed during her probationary period in response to numerous complaints concerning her performance from residents of the complex. It further contends that the Complainant had signed a standing order drawn on the Respondent’s bank account for a mobile telephone account without authority and that this constituted serious misconduct justifying her dismissal.

The Complainant referred her complaint to the Equality Tribunal in accordance with Section 77 of the Employment Equality Acts 1998 to 2008 (the Act). The complaint was investigated by an Equality Officer of the Tribunal who upheld the complaint. The Equality Officer awarded the Complainant compensation in the amount of €30,000, €10,000 of which was in respect of loss of earnings and the remainder was in compensation for the effects of the discrimination found to have occurred. The Equality Officer also made ancillary orders directing the Respondent to put in place a Code of Practice on harassment, to provide training on the Code for all employees and to provide the Complainant with her P45.

The Respondent appealed to this Court.

Position of the parties

The parties presented detailed written submissions to the Court on the facts in issue and the applicable law. Oral evidence was tendered by Mr Derek Reid, Ms Julia Ind and Mr Philip Marley for the Respondent. Evidence was given on behalf of the Complainant by Mr Stephen Cooley and by the Complainant herself.

Evidence

The evidence adduced at the hearing can be summarised as follows: -

Mr Derek Reid gave evidence. Mr Reid told the Court that he commenced employment with the Respondent in May 2005 as a property manager. He was responsible for the management of a number of properties including a student accommodation complex in Letterkenny, Co Donegal. Ms Julia Ind, who is a director of the Respondent worked with him in relation to this project.

The witness told the Court that it was decided to recruit a resident manager for the Donegal complex. An agency was utilised to assist in the recruitment process. Four candidates were referred to the Respondent and these candidates were interviewed by Ms Ind and the witness. The Complainant was selected for appointment. Mr Reid told the Court that at the interview he talked through the duties of the post with the Complainant. He told her that she would be responsible for collecting deposits from residents and that the amounts received should be forwarded to the Respondent’s office in Dublin. She was also told that her duties would involve liaison with the developer of the property and that she would be responsible for the orderly management of the property. He also told her that she would report to the witness and that if any problems arose she could contact him. The Complainant was provided with an apartment in the complex in which she would be expected to reside. She was also to be provided with an office in the complex.

According to Mr Reid the Complainant was told that her employment was subject to a six-month probation period. The witness said that he was sure that the Complainant would have received a written contract of employment within a short time after she commenced employment, although he was not sure that this had happened.

After the commencement of her employment the Complainant underwent a short period of training in Dublin.

Mr Reid said that he was in regular telephone contact with the Complainant after she took up duty in Donegal. All of the phone calls were made and received in his office in Dublin. This was an open plan office which he shared with six other staff. The witness said that the content of all of these telephone conversations could be overheard by others sharing the office. Mr Reid said that all of his discussions with the Complainant were conducted in a professional manner. The witness told the Court that he never used aggressive or vulgar language in his discussions with the Complainant and that most of his telephone calls were uneventful. The witness also denied that he ever lost his temper in his dealings with the Complainant. Mr Reid told the Court that all his dealings with the Complainant were conducted professionally and that he always treated her with courtesy and respect.

Mr Reid told the Court that he received complaints from residents of the complex concerning the behaviour of the Complainant towards them. He recalled an occasion on which the parents of a resident called to his office in Dublin to complain about the Complainant’s conduct. He said that he had also received complaints from the Students Union in Letterkenny IT concerning the Complainant’s approach to students. The witness said that some of the complaints were documented either by him or they were received by e-mail. He said that there had been a fire in the Respondent’s office and these documents were destroyed. Mr Reid said that he had discussed the situation with the Complainant in an informal way but accepted that he had not put any of the complaints in writing to her and did not invoke any disciplinary process against her.

Mr Reid recalled having been told that graffiti had been placed on a wall in the complex, which was offensive to the Complainant. His recollection was that the Complainant was not unduly upset by this graffiti. He asked if he could do anything to help. He denied having told the Complainant that she should deal with the matter herself. He said that the Complainant had identified the perpetrators of the graffiti from CCTV records and she suggested that they be evicted. He did not agree that this was an appropriate response. He subsequently attended at a meeting in Letterkenny involving students and parents to discuss the graffiti incident and other complaints. The witness told the Court that in response to the emerging difficulties he decided to employ a caretaker for the complex who could take a more hands-on role in its management.

It emerged that the Complainant had purchased a mobile phone in the Company’s name and had signed a direct debit on the Company’s bank account to meet the phone bills. The witness said that no member of the staff was supplied with a Company mobile phone and that the Complainant’s actions in entering into that contract on behalf of the Respondent was regarded as serious misconduct. He said that he had been informed of what the Complainant had done by Ms Ind who discovered debits in favour of the phone supplier on the Company’s bank statements.

Mr Reid gave evidence concerning the recruitment of a caretaker for the complex. He said that a selection process was put in place through an agency and six male candidates were referred for interview. A Mr Cooley was selected. He said that he had asked Mr Cooley if there was anything in his background which might render him ineligible for the post. Mr Cooley told the witness that he had convictions for affray and for G.B.H. which convictions were spent. The witness told the Court that he appreciated Mr Cooley’s candour and felt that these convictions should not be held against him.

The witness was asked if he had told Mr Cooley that his criminal record would be an advantage in the post. He denied having made any such comment. The witness was asked if he had told Mr Cooley that a person performing a similar role in one of the Respondent’s properties in Dublin had convictions for hijacking and robbery of trucks. The witness denied having given Mr Cooley such information and he suggested that Mr Cooley could have obtained this information from a named third party. The witness was also asked if he used strong and vulgar language to describe the Complainant to Mr Cooley. The witness said that he had not discussed the Complainant with Mr Cooley.

Turning to the Complainant’s dismissal, Mr Reid said that a discussion had taken place between himself, Mr Lyons and Ms Ind concerning the Complainant’s performance. He said that a consensus emerged between them that the Complainant should be dismissed. According to Mr Reid Mr Lyons raised the matter on discovering that the Complainant had signed a bank debit authorisation without authority. The witness agreed that the Complainant should be dismissed because of the number of complaints relating to her performance.

It was agreed that the witness would inform the Complainant that she was being dismissed and that Mr Cooley would take over her role.

Mr Reid told the Court that Mr Cooley was instructed to report to the complex on 4th November 2005. At approximately 10.am on that date he spoke to the Complainant by telephone and told her that her employment was being terminated with immediate effect. The Complainant was told to deliver the keys of the complex to Mr Cooley. The Complainant was also instructed to vacate her apartment. The witness said that he informed the Complainant that she was on probation and that things had not worked out. He said that the decision to terminate the Complainant’s employment was taken because of the incident involving the signing of the bank debit and her unsatisfactory performance in the job.

The witness said that in the event Mr Cooley left the employment of the Respondent some hours after he started and informed the witness that he was doing so because he had been threatened by unknown persons in a local bar.


Ms Julia Ind gave evidence. Ms Ind is a Director of the Respondent. She commenced as an employee of the Company in February 2004. At that stage there were three or four other employees. The witness recalled that Mr Reid joined the Company in 2005. Ms Ind told the Court that the Respondent had been assigned responsibility for managing a development in Letterkenny, which was to be used as student accommodation. She was involved with Mr Reid in the recruitment of the Complainant to act as Manager of the complex. She said that she interviewed the Complainant with Mr Reid and she recalled the Complainant being told that her employment would be subject to 6 months' probation.

Ms Ind told the Court that she shared an open plan office with Mr Reid. She said that Mr Reid had regular telephone conversations with the complainant and the witness was in a position to hear what Mr Reid was saying. She said that at all times Mr Reid’s manner was professional. She never heard Mr Reid using vulgar or coarse language on the telephone or in his discussions with the Complainant.

The witness told the Court that in or about October, 2005, she became aware of a debit on the Respondents bank statement in favour of Vodafone. She said that on further investigation she discovered that the Complainant had signed a debit mandate for a mobile phone account. It was Ms Ind’s evidence that only she and Mr Lyons had authority to conduct transactions on the Respondent’s account. The witness spoke to Mr Lyon about this matter and they then sought a copy of the mandate from Vodafone. Vodafone refused to give them a copy of the bank mandate.

The witness told the Court that she was party to the decision to terminate the Complainant’s employment. She recalled a discussion between herself, Mr Reid and Mr Lyons in relation to the Complainant’s future with the Respondent. It was Ms Ind’s recollection that Mr Reid first raised the Complainant’s unsuitability and proposed that she should be dismissed. The witness agreed with this proposal particularly in light of what she had uncovered regarding the mobile phone account. Both Ms Ind and Mr Reid discussed the matter with Mr Lyons and he also agreed. The witness told the Court that the reason for the dismissal was Mr Reid’s dissatisfaction with the Complainant and what the witness described as“the forgery”of a bank document. The witness told the Court that there was a fire at the Respondent’s offices in March 2006 and all of the documents relating to this matter were destroyed. She did however hand into the Court a single page of a bank statement relating to this transaction.

Mr Philip Marley gave evidence to the Court. Mr Marley is the Managing Director of the Respondent. Mr Marley told the Court that he became aware that the complainant had signed bank documents on behalf of the Respondent without authority. He said that he regarded this as gross misconduct and came to the view that the Complainant should be instantly dismissed. He went on to tell the Court that he did not seek any explanation from the Complainant, as he believed her conduct was unacceptable and unjustifiable. Mr Marley accepted that he had sent money to the Complainant in Donegal for the purpose of purchasing a mobile phone. But he said that he did not authorise the Complainant to set up a debit account with the Bank. He said that he made the ultimate decision to dismiss the Complainant having been approached by Ms Ind and Mr Lyons. He said that he had been told that there were a lot of complaints about the Complainant but that the principal reason for the Complainant’s dismissal was her unauthorised transaction on the Company’s bank account.

In response to questions from the Court Mr Marley said that he had not raised any issue with his bank in relation to its acceptance of the mandate although it was not signed by an authorised signatory.

Mr Stephen Cooley gave evidence. Mr Cooley told the Court that he had been recruited by the Respondent as Student Campus Manager at the Donegal complex. He said he had seen the job advertised through an agency and he sent in his CV. He received a reply and was invited to attend for an interview. The witness told the Court that he had never before managed property. He was interviewed for the position by Mr Reid and another person whom he did not know. He told the Court that the interview was conducted in a very informal manner. Mr Reid asked a lot of questions of a general nature while the other person asked some detailed questions in relation to the job for which he was applying. The witness was told that the job involved collecting rent and general maintenance of the complex. In the course of the conversation Mr Reid engaged him in discussion about sport. The witness told Mr Reid that he had been a boxer. He said that Mr Reid seemed pleased to hear that and told him that they needed someone who could “handle themselves”.

In the course of the interview Mr Cooley told the interviewers that he had two convictions in the UK, one for grievous bodily harm and the other for affray. Both had been dealt with under the probation of offender’s legislation and were now spent. According to the witness Mr Reid said that would be an advantage in the job. Mr Reid went on to tell the witness that the Respondent employed a man in a complex in Ballymun who had convictions for hijacking lorries.

Two weeks later Mr Cooley was told that his application was successful and that he had the job. The witness told the Court he then had some further telephone discussions with Mr Reid. The witness said that Mr Reid had told him that his job would include getting rid of“that useless bitch”in reference to the Complainant. The witness also told the Court that Mr Reid had regularly used coarse and vulgar language in describing the Complainant to him. It was subsequently made clear to the witness that his first job would be to get rid of the Complainant. He said that a plan was worked out between himself and Mr Reid to this end. The witness was told to start on Friday 4th November 2005 at the complex in Donegal. He was told to arrive at the Complainant’s apartment at approximately 9.00 a.m. and that Mr Reid would telephone the Complaint 30 minutes later to tell her (the Complainant) that she was dismissed. He was instructed to then demand the keys of the complex from the Complainant and see that she left the premises.

Mr Cooley said that he was in regular contact with Mr Reid over this time. On the morning in question the witness arrived at the complex as agreed and met with the Complainant at her office. He said he was surprised when he met with the Complainant, as she seemed to be a perfectly normal and reasonable person and did not conform to the description he had received from Mr Reid. The Complainant left the office and went to her apartment to take a phone call. There were two workers from the builder’s staff in the office at the time waiting to speak to the Complainant.

He said that at approximately 9:30 a.m. he received a phone call from Mr Reid who told him“I am going to phone the bitch now”. Some minutes later the Complainant entered the room in which he was waiting and was crying. The Complainant asked him and the building workers to leave. The witness said that he went into the building site canteen and waited there for some time and then went back to the complex. He said that the Complainant’s mother and grandparents were present. The Complainant told him what had happened. The Complainant then told him of the difficulties she had had with the Respondent and referred in particular to difficulties she had in obtaining her wages and expenses payments on time. Mr Cooley told the Court that he had heard similar stories from a person with whom he had trained in Dublin. Mr Cooley became extremely concerned about the Complainant’s demeanour at that time and he decided to come clean and to tell her the truth. He then told her that he had been employed to facilitate her dismissal and her eviction from the complex.

On subsequent reflection the witness decided that he did not wish to work for the Respondent and informed Mr Reid accordingly.

It was put to this witness by Counsel for the Complainant that Solicitors acting for the Respondent had written to the Complainant’s Solicitors saying that Mr Cooley had refused to take up the appointment as he was threatened by persons acting on behalf of the Complainant. Mr Cooley said that he had never said anything which could have led to that conclusion. Mr Cooley was asked why he had come forward to give evidence. He said he felt sorry for the Complainant and that she was not the type of person that he had been led to believe. He said that in all of his conversations with Mr Reid the Complainant had been described in extremely bad language (details of which were provided to the Court) and it was made clear to him that she was unsuitable for the job and that they wanted someone who could become“physical”

The witness told the Court that following the Complainant’s dismissal he received several irate phone calls from Mr Reid demanding that he go to the complex and take charge of the property. He said that he was receiving phone calls every ten minutes or so. He said that he also received two text messages from Mr Reid in which it referred to the Complainant in vulgar and derogatory terms. The witness did not retain these texts and he told the Court that he had since lost the phone in question.


The Complainant gave evidence. The Complainant told the Court that she holds a B.Sc in Housing Management. She worked as a housing officer in the UK for five years prior to taking up employment with the Respondent. She was initially referred to the Respondent by Resources Employment Services in Donegal. It was the Complainant’s recollection that she was interviewed by Mr Reid alone. The interview was informal and she was taken through the duties of the post. The Complainant was adamant that she was not told that there would be a probationary period. The Complainant was told that she would be provided with an apartment in the complex and with an office.

The Complainant was told that she had the job and after an initial period of training in Dublin she took up the position in Donegal. The Complainant did not receive a letter of appointment nor did she receive a Contract of Employment.

On taking up her appointment the Complainant found that the building was not ready and there were a lot of issues with the Builder in relation to the unfinished state of the apartments. Her office was not finished and she was told to work from the show apartment. There was no telephone line in the office or in the show apartment. Initially the Complainant used her own mobile phone to conduct business on behalf of the Respondent. The Complainant told the Court that she was in contact with Mr Reid on a daily basis initially and less frequently later. The main issues that she had to deal with were the condition of the apartments and the common areas.

The Complainant told the Court that shortly after commencing her employment she was instructed to erect a sign advertising the complex. She advised the Respondent that permission would be required from the Local Authority to do so. Mr Marley instructed her to erect the sign anyway and the Respondent would pay any fine imposed.

The Complainant told the Court that in the weeks immediately following her appointment the interaction with Mr Reid was uneventful. The students began to move into the apartments in September 2005 and the Complainant began receiving complaints from residents and their parents. Following on from these complaints some students refused to pay rent. The Complainant reported this to Mr Reid. It was the Complainants evidence that Mr Reid instructed her to evict these students, to place their belongings in black refuse sacks, place them out in the corridor and to change the locks. The Complainant recalled that Mr Reid said he would travel up to Donegal and“punch the students in the head”.The Complainant also recalled that on other occasions Mr Reid told her to get troublesome students by“the scuff of the neck”and throw them out.

The Complainant told the Court that Mr Reid’s attitude towards her became progressively more abusive. She said that it appeared that he was receiving a number of complaints from parents of students concerning the state of the apartments and that he would regularly contact her by telephone and remonstrate with her using aggressive and vulgar language. The Complainant said she felt frightened and intimidated by Mr Reid’s tone and use of language.

The Complainant told the Court that some of the students were playing loud music late at night and that she had taken issue with them over this. She said that graffiti later appeared on the walls of the complex, which referred to her in insulting and derogatory terms. The Complainant told the Court that she had identified the culprits from CCTV recordings. The Complainant then reported the matter to Mr Reid and he said he would evict the students responsible. The Court was told that Mr Reid did not, in fact, take any further action but that a meeting was later convened at a hotel in Letterkenny involving students and parents of residents. Mr Reid attended the meeting following which he told the Complainant he would be taking no further action on the matter.

Turning to the question of the mobile phone the Complainant told the Court that while she had been promised a landline would be installed in her office, none was provided. Initially she was using her own mobile phone to conduct business on behalf of the Respondent and she submitted claims for reimbursement of the costs involved. She found this arrangement unsatisfactory and informed Mr Marley accordingly. Mr Marley instructed the Complainant to purchase a mobile phone and he sent her €70 in the post to cover the purchase price. The Complainant purchased a phone and registered the phone in the Respondent’s name. She was asked to complete a bank mandate by the phone supplier. She telephoned the Respondent’s office in Dublin and spoke to a named member of staff to whom she explained the nature of the transaction that she was undertaking and asked for the Respondent’s bank account details.

The Complainant recalled hearing this staff member speak to Mr Lyons who was in the background. She heard Mr Lyons instruct this staff member to give her the bank details. The Complainant completed the bank mandate and signed it with her own signature. The Complainant was later contacted by Mr Lyons who accused her of having committed a criminal offence by executing the bank mandate. The Complainant explained the circumstances in which she came to complete the bank mandate. The Complainant said that she had entered into the transaction openly and had done nothing that would conceal the transaction appearing on the Respondent’s monthly bank statement.

The Complainant also told the Court that she had obtained quotes from contract cleaners for the cleaning of the complex and that she found these quotes were costly and she spoke to Mr Reid about this. She said Mr Reid asked her if she knew of anyone who would undertake the cleaning privately. She told Mr Reid that her sister would be prepared to take on the job and Mr Reid agreed that her sister could be engaged. Her sister took on this work and was subsequently paid by the Respondent by cheque. Subsequently Mr Reid took issue with her for engaging her sister to carry out this work.

The Complainant confirmed to the Court that no performance related issues had ever been raised with her and she had never been told that her continued employment was in jeopardy.

Turning to the events of the 4th November, 2005, the Complainant told the Court that on that day she opened up the complex as normal between 8:30 and 9.00 a.m. She said that there were some issues with the builders and that she had arranged to meet with some of the builder’s staff. At approximately 9:30 a.m. she received a telephone call from Mr Reid telling her she was dismissed and that she was to leave the premises by 12 noon. She was also instructed to hand over the keys of the complex to Mr Cooley. The Complainant said that she was in a state of shock and that she asked Mr Cooley and the building staff who were in her office to leave. She rang her mother who brought her to the Doctor. When she had composed herself she returned to the complex and spoke to Mr Cooley. She gave him the keys of the complex and at that point Mr Cooley said that he wanted to come clean and told her of the circumstances in which he had been employed and of his involvement in what was described as the plan to dismiss and evict her from the premises.

The Complainant told the Court that she was extremely upset by the events and that she had been unemployed for six months following her dismissal.

In cross examination and in answering questions from the Court the Complainant said she was quite sure that she had been interviewed by Mr Reid alone and that she had never been told of any probationary period. With regard to the mobile phone she said that Mr Lyons had told her what she had done was wrong and that she had been“told off”. She said that she had never been given to understand that her actions were considered as gross misconduct or that her job was in jeopardy as a result. The Complainant also told the Court that most of the phone calls she received from Mr Reid were made by him outside of the office. She said that the calls were made from his mobile phone and she could hear traffic and other background noise suggesting that Mr Reid was outdoors. The Complainant also told the Court that in a particular phone conversation, which she could not accurately place in time, but she thought was around the time of the graffiti incident, Mr Reid had told her that a man was needed to control the students.

The law:

The Court first turned to consider the allocation of the burden of proof as between the parties. Section 85A (1) of the Act, as inserted by Section 38 of the Equality Act 2004, provides: -

• 85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.

• It is important to bear in mind that it is unusual to find direct evidence of racial discrimination. Few employers will be prepared to admit such discrimination even to themselves. In some cases the discrimination will not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in.’

• I turn to the question of subconscious motivation. All human beings have preconceptions, beliefs, attitudes and prejudices on many subjects. It is part of our make-up. Moreover, we do not always recognise our own prejudices. Many people are unable, or unwilling, to admit even to themselves that actions of theirs may be racially motivated. An employer may genuinely believe that the reason why he rejected an applicant had nothing to do with the applicant's race. After careful and thorough investigation of a claim members of an employment tribunal may decide that the proper inference to be drawn from the evidence is that, whether the employer realised it at the time or not, race was the reason why he acted as he did. It goes without saying that in order to justify such an inference the tribunal must first make findings of primary fact from which the inference may properly be drawn.

Evaluation of the evidence

The evidence tendered by the witnesses for the Respondent is irreconcilable in practically every material respect with that given by the Complainant and Mr Cooley. These contrasts cannot be explained by mere differences in recollection. In these circumstances the Court must carefully evaluate all of the evidence adduced so as to establish which of it is to be preferred.

The Court has found some inconsistencies and contradictions in the evidence on behalf of the Respondent. Mr Reid, who was the main witness called by the Respondent, told the Court that he always acted professionally in relation to the Complainant and that he treated her with courtesy and respect. Yet he dismissed her without warning and set about having her evicted from her place of residence with little more than two hours notice. This witness also told the Court that he was becoming increasingly concerned about the Complainant’s performance and had received persistent complaints from residents and the Students Union in that regard. Yet no corroborative evidence of any kind could be produced from any party said to have made a complaint nor was any documentary evidence available to support these assertions. It is of further significance that the Complainant was never put on notice of these complaints nor was she given any formal verbal or written warnings arising out of these complaints.

In relation to the telephone conversations which Mr Reid had with the Complainant, he said that they were all made from his office within hearing of others including Ms Ind. That evidence was corroborated by Ms Ind. The Complainant’s evidence was that almost all of the telephone calls which she received from Mr Reid where made from a mobile telephone and were made from outdoors. None of the Respondent’s telephone records were made available to resolve this conflict. Having regard to Mr Reid’s role as a manager of properties it seems unlikely that he would have spent all of his working time in the office. It is more probable that he would have been required to work away from the office and would have conducted business over a mobile telephone. In that regard Mr Reid told the Court that he submitted expense claims to the Respondent for the cost of telephone calls made in the course of his work on his mobile phone.

There was also inconsistency in the evidence of witnesses for the Respondent on the circumstances in which it was decided to dismiss the Complainant. Mr Reid said that the decision was initiated by Mr Lyons when he discovered that she had signed a bank mandate in the Respondent’s name and that he concurred because of the complaints which he had received concerning her performance. Ms Ind’s recollection was that Mr Reid had initiated the decision because of the complaints which he had received concerning the Complainant and that she had concurred because of the issue concerning the phone bill.

Mr Marley’s evidence was short but nonetheless significant. Mr Marley told the Court that he was the ultimate decision maker and that he had decided that the Complainant should be instantly dismissed as she had signed an authorisation on the Respondent’s bank account without authority. Mr Marley expressed what could best be described as outrage at the notion of an employee purporting to conduct a transaction on the Respondent’s bank account. Yet Mr Marley took no issue with the bank for having accepted the mandate and processed the transaction when it was not authorised in accordance with the Respondent’s instructions to the bank.

The circumstances in which Mr Marley came to view this matter with such seriousness are also somewhat puzzling. It is clear from the evidence that the Complainant was to be provided with a landline telephone in the office in Donegal. No landline was available and the Complainant was required to use her own mobile phone for official business. She regarded this as unsatisfactory and discussed the matter with Mr Marley. Mr Marley agreed that the Complainant should be provided with a mobile phone for business use and she was provided with funds by Mr Marley for that purpose. In these circumstances it would seem to logically follow that the Respondent should be responsible for the costs of rental and usage on the phone and it could hardly to described as gross misconduct or fraud for the Complainant to have assumed this to be the case. Further, the Complainant was given the Respondent’s bank account details by a member of the Respondent office staff so as to complete the transaction. Yet no action was taken against the person who provided these details.

There is another matter which goes to the credibility of the Respondent’s case. The Court was referred to a letter sent to the Equality Authority by, a firm of Solicitors who were then acting for the Respondent, dated 27th July, 2006, in relation to the Complainant’s allegations against the Respondent. This letter contained an assertion that Mr Cooley informed the Respondent that he had been threatened by persons acting for the Complainant. This was suggested as the reason why he had left his employment with the Respondent.

These allegations were obviously made on the instructions of the Respondent Mr Cooley denied having told the Respondent anything that could be construed to the effect asserted in the letter in question and no evidence was tendered by the Respondent to support that allegation. The Court is fully satisfied that the allegation is without foundation.

The letter of 27th July, 2006, also claimed that the Complainant was employed on a three-month probationary period. In the course of the hearing the witnesses who gave evidence for the Respondent claimed that the Complainant was employed on a six-month probationary period. No explanation was given for this inconsistency.

The Court has carefully considered the evidence tendered by Mr Cooley. This evidence was characterised by Mr Reid as a fabrication. Mr Cooley came to give evidence both before this Court and the Equality Officer voluntarily and without any interest in the outcome of the case or animus towards the Respondent. He impressed the Court as an honest witness who had nothing to gain from giving false evidence. The honesty of the witness was also marked by the fact that he told Mr Reid at his job interview that he had previous criminal convictions in circumstances in which it was unlikely that any record of those convictions could have been subsequently traced.

Mr Cooley’s evidence remained consistent notwithstanding skilful cross-examination by Counsel and close questioning by members of the Court. The Court found Mr Cooley to be a reliable witness and it accepts that his evidence was substantially correct in all material particulars.

The Complainant’s evidence was also carefully considered by the Court. Again Mr Reid described the Complainant’s account of the interaction between them as a fabrication. The Complainant’s evidence on the manner in which she was treated by the Respondent was wholly consistent with the evidence given by Mr Cooley. The Court found the Complainant to be an honest witness who gave her evidence to the best of her recollection. Where there was a conflict between the evidence of the Complainant and that of Mr Reid the Court preferred the evidence of the Complainant.

Conclusion

It is clear on the evidence that the Respondent developed a deep hostility to the Complainant grounded in the belief that she was incapable of performing the role for which she was employed. The onus is on the Respondent to prove on the balance of probabilities that its disposition toward the Complainant was in no sense whatsoever related to her gender. The Respondent has failed to discharge that onus. The Court is satisfied that the Respondent’s negative attitude towards the Complainant manifested itself in the conduct of which she complained, including her dismissal. The Court is further satisfied that the Complainant was harassed by the placing of graffiti on the wall of the complex in which she worked which was offensive to her on grounds of her gender. The Court accepts the evidence of the Complainant that the Respondent took no action to prevent this harassment.

Accordingly, this appeal cannot succeed.

Determination

The within appeal is disallowed and the decision of the Equality Officer is affirmed in its entirety.




Signed on behalf of the Labour Court



Kevin Duffy
15th October, 2009______________________
CONChairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.