The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-017
PARTIES
Olivia O'Callaghan
(Represented by Mr Donnchadh McCarthy instructed
by Terence J. O'Sullivan Solicitors)
AND
Avery Dennison Ireland Limited
(Represented by Mr Eoin Clifford instructed by
Ronan Daly Jermyn Solicitors)
File reference: EE/2007/043
Date of issue: 16 February 2010
HEADNOTES: Employment Equality Acts - Gender & Disability - Promotion/re-grading, training, conditions of employment, harassment, sexual harassment & victimisation - time limits
1. DISPUTE
1.1. This dispute concerns a claim by Ms Olivia O'Callaghan that she was discriminated against by Avery Dennison Ireland Limited on the grounds of gender, marital status and disability contrary to section 6 of the Employment Equality Acts in relation to access to employment, promotion/re-grading, training, conditions of employment in terms of section 8, that she was harassed and sexually harassed contrary to section 14A and that she was victimised in accordance with section 74 (2) of those Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 29 January 2007 under the Employment Equality Acts. On 27 May 2009, in accordance with her powers under section 75 of the Acts, the Director delegated the case to me, Hugh Lonsdale, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. Submissions were received from both sides. In accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing held over two days on 22 October 2009 and 20 November 2009.
2. PRELIMINARY ISSUE
2.1. The complainant started work for the respondent on 5 June 2001 and gave evidence that on her return to work in October 2001, after a period of sick leave, she suffered from a series of discriminatory acts that she claims amounted to discrimination in relation to promotion, training, conditions of employment and that she was harassed and sexually harassed. She submits that these acts continued until October 2006 when she was forced to go on sick leave, from which she never returned to work.
2.2. The respondent denied that any discrimination took place but also raised a preliminary issue that most of the events are out of time in accordance section 77(5) of the Acts. They contend that as the claim was made on 29 January 2007 any events before 30 July 2006 are out of time. The complainant responded by stating that all the events from her return to work in October 2001 until she went on sick leave in October 2006 are linked.
2.3. It is possible to refer a complaint of a number of events of which only the most recent is within the six month time frame where it can be shown that the events create a chain of related events. In this case there are many incidents from October 2001 onwards which the complainant contends relate back to the break up of the complainant's relationship with her then supervisor. However, in April 2005 the complainant moved to a new position in Corporate Procurement; a move which the complainant applied for and about which she took no issue. From the detailed submissions made by both parties, both written and verbal, I can find no link between any of the incidents referred to by the complainant subsequent to this move and to events prior to the move that would lead to an inference of a chain of related events. I therefore find that all events prior to April 2005 are out of time and I am limiting my decision to events from April 2005 onwards.
3. COMPLAINANT'S SUBMISSION
3.1. The complainant submits that shortly after starting in Corporate Procurement in April 2005 she was mugged whilst travelling for the respondent in Amsterdam. She claimed a loss of property amounting to €2000 from the respondent and the respondent only paid the very small amount of compensation, €250, that they could claim through their credit card insurance. She submits that during the dispute over compensation the Managing Director jeered at the amount of the complainant's claim and that this amounts to harassment and victimisation.
3.2. The complainant also submits that from the time she moved to Corporate Procurement she started receiving warnings about her timekeeping. She accepts that she didn't always start at 9am but submits that this was because she had to liaise with her new supervisor who was based in the USA and stayed late in the evenings to keep in contact. On 2 June 2005 the complainant was given a verbal warning about her timekeeping despite explaining that she was working long hours and was busy with work projects. This was followed by a further disciplinary meeting on 26 August 2005 about her timekeeping at which the complainant submits she disclosed that she had a long term illness which effected her timekeeping and the complainant arranged for her own GP to send a report to the HR Manager which stated that the complainant "is suffering from a medical condition which is causing her difficulties coping at work at the moment.". She was sent to the company doctor. Subsequently, on 13 September 2005 she had a meeting with Human Resources and was given a verbal warning because of her timekeeping. Following this she was given a written warning on 18 January 2006. The complainant considers that the respondent took no account of her illness in dealing with her timekeeping difficulties.
3.3. Also, as well as the disciplinary action for lateness no account was taken of the extra hours that she worked during the week, when she stayed late and on occasions at weekends. In addition to the regular late nights she submits she worked to keep in contact with her supervisor, she gave evidence that there were other occasions when she worked late. In August 2005 she was working in the Dublin and did not return to Cork until midnight. She found out that HR in Cork had telephoned the Managing Director in Dublin to find out what time the complainant had left. In September 2006, in spite of personal demands she worked until 2am on a Saturday morning to carry out performance testing because there was no one else suitable to carry out the work. She was not allowed to take time off in lieu of the extra time she worked up, whereas she was aware that two male members of staff were able to take the time off in lieu. The complainant contends that this amounts to gender discrimination and harassment.
3.4. In late 2005 the complainant submits that during a discussion on her Career Development Plan her supervisor laughed at her when she tried to discuss a suggestion made by her previous supervisor. In February 2006 she raised difficulties she was having in not being allocated work of an appropriate level but her new supervisor failed to address this point.
3.5. In August 2006 the complainant became aware that a new management position was being created her supervisor made it clear that she was not being considered.
3.6. In September 2006 the complainant travelled to France and Italy with her new supervisor. The complainant submits that her supervisor behaved very badly towards her, in that he ignored her at times and was rude and obstructive, and that some of these incidents took place in front of other members of the respondent's staff. On their last day in Italy her supervisor arranged a meeting with the complainant in a glass office. At this meeting the supervisor issued the complainant with a verbal warning for gross insubordination and would not allow the complainant to respond to his allegations and criticisms. Subsequently after she responded to her supervisor by email she was admonished by the HR Manager in Cork for the content of her email. The complainant considers this amounts to harassment.
4. RESPONDENT'S SUBMISSION
4.1. The respondent denies that any of these incidents amount to discrimination. They submit that the incident regarding stolen luggage has nothing to do with a claim under the Acts and can only be seen as a personal grievance with the respondent. Not withstanding this the respondent denies that the complainant was mugged in Amsterdam but that her luggage was stolen while she left it unattended. The respondent considers that the complainant's claim of €2,857.50 was excessive considering she was on a two day trip to the Netherlands and arose because of her irresponsible and careless behaviour. The complainant was advised of the respondent's insurance cover. The Managing Director had no direct involvement with the complainant regarding this claim and denies jeering at the complainant in relation to the extent of her claim.
4.2. The respondent submits that the complainant's position in Corporate Procurement was to provide a help desk to internal customers throughout Europe and it was therefore important that she was present from 9am to provide support to internal customers in Europe. The initial meeting with the complainant in June 2005 regarding timekeeping arose from a complaint made by a senior manager in Germany. Following this the complainant's timekeeping was monitored by Human Resources. The complainant was late on a number of subsequent occasions so she was called to a meeting on 26 August 2005. She was reminded of the need to start at 9am and the complainant expressed her difficulties in doing this and that a 10am start would be easier for her because of a medical difficulty. She was asked by her supervisor to submit a flexible work schedule for consideration but she never did this. She was sent to the respondent's doctor and she revealed a medical condition but would not allow him to inform the respondent the nature of that condition. The doctor did not consider that the medical condition would prevent her from being at work for 9am. The written warning was given in January 2006 because of continuing incidents of lateness and the respondent was not made aware of any reason why the complainant could not start on time. The respondent submits that they were unaware of any medical condition that might be considered a disability within the meaning of the Acts until after the complainant went on sick leave in October 2006.
4.3. The respondent denies that the complainant was required to work long hours. It was customary for staff in Cork who needed to liaise with colleagues in America to make arrangements to contact them between 4 - 6pm. The respondent therefore does not understand why the complainant says she needed to stay late. The respondent submits that they had no knowledge of many of the incidents of late working raised by the complainant and they were not raised at the time they took place. The respondent stated that the complainant was employed as a project worker with a highly competitive salary and a double target annual bonus percentage, as were all her colleagues on the Financial Implementation Team. The respondent submits that no one so employed received time in lieu during the week. Time in lieu was granted for approved weekend work and that this was explained to the complainant on several occasions. However, some of the complainant's attendance at weekends was unauthorised and she was therefore not allowed the time in lieu. The respondent submits that this approach was applied equally to all staff in the Financial Implementation Team and had nothing to do with the complainant's gender. The male colleagues cited by the complainant as receiving time off for extra hours worked had less responsibility and did not receive the same salary or benefits as the complainant and were therefore on different conditions of employment.
4.4. The respondent submits that it encourages the development of all staff and denies that the complainant was laughed at or discriminated against in relation to her career development. Also, if the complainant was interested in a managerial position she should have registered her interest with her supervisor or the manager who would be responsible for the new position. There is no record of the complainant registering any such interest.
4.5. The respondent submits that the complainant's supervisor had flown from California and took time to adjust to the different time zone and he also needed to satisfy business requirements during the trip to France and Italy which was why he worked alone at times. However, the respondent submits that the complainant refused to speak to her supervisor on several occasions and her behaviour was at times unprofessional in front of other staff members, which led to her being issued with a verbal warning at the end of the trip. On her return the complainant refused to speak to the HR Manager in Cork about these incidents.
5. FINDINGS & CONCLUSIONS
5.1. No submission was made by the complainant in relation to marital status I therefore find that no prima facie case has been established in relation to that claim.
5.2. The claim in relation to sexual harassment relates to the period before April 2005 and is therefore out of time.
5.3. I have to decide if the complainant suffered discriminatory treatment on the grounds of gender and disability in terms of promotion/re-grading, training, conditions of employment, harassment and victimisation. In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing.
5.4. The complainant's alleges that she was harassed and victimised when she made a claim for lost property following a theft whilst she was on a business trip to Amsterdam. However, having investigated the submissions I accept that she was recouped the respondent's insurance cover for such losses and can find no evidence to infer that the complainant suffered "adverse treatment" as required by section 74(2) of the Acts or that she was harassed in accordance with section 14A of the Acts.
5.5. The complainant contends she was treated in a discriminatory manner because the respondent took no account of her disability when they instigated disciplinary proceedings arising from her timekeeping. The respondent contends they were unaware that the complainant had a condition that might be considered a disability within the meaning of the Acts. The medical report confirmed that the complainant had a medical condition but not one that would prevent her from starting work at 9am. The respondent also asked the complainant to submit a flexible work programme but she chose not to do this. I conclude that the respondent took reasonable steps to find out the nature of the complainant's condition and accept that they did not consider the complainant to have a disability. I therefore find on the basis of the evidence presented that the respondent did not discriminate against the complainant in relation to a disability.
5.6. The complainant contends that she was discriminated because of her gender and harassed in not being given time off for extra hours worked whereas two male colleagues were given such time off. The respondent contends that it was part of her conditions of employment as a member of the Financial Implementation Team that she did not receive time off for extra hours worked during the week but she would for approved weekend work and that all members of the team were treated the same. I accept the respondent's explanation that all staff in the respondent's team were treated equally in relation to time off for extra hours worked and conclude, therefore, that no discrimination or harassment took place.
5.7. The complainant also contends that she was discriminated against in relation to training with regard to her Career Development Plan and in relation to promotion/re-grading in not being considered for a managerial position. However, the complainant put forward no evidence that she was discriminated against in relation to any of the nine grounds as required by section 6(2) of the Acts. I therefore conclude that she has failed to establish facts from which an inference of discrimination on any of the grounds may be drawn and find that the complainant has failed to establish a prima facie case of discriminatory treatment in relation to any of these incidents.
5.8. The complainant contends that she had difficulties with her supervisor during a business trip and that his behaviour amounts to harassment. The evidence given by both parties shows that there were interpersonal difficulties between the complainant and her supervisor. The cause of these difficulties is not clear as the evidence is contradictory in this respect. However, on balance, I accept the respondent's version of events and find that no harassment took place.
4. DECISION
I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts:
- that the claims in relation to events prior to April 2005 were not lodged in accordance with the time limits provided for in section 77 (5) (a) of the Acts and I therefore have no jurisdiction to investigate these claims,
- that the respondent did not discriminate against the complainant on the grounds of her marital status,
- that the respondent did not discriminate against the complainant in relation to promotion/re-grading, training, conditions of employment on the grounds of gender and disability contrary to section 6 of the Employment Equality Acts,
- that the respondent did not harass the complainant contrary to section 14A of the Acts, and
- the respondent did not victimise the complainant contrary to section 74 (2) of the Acts.
____________________
Hugh Lonsdale
Equality Officer
16 February 2010