The Equality Tribunal
EMPLOYMENT EQUALITY ACTS 1998 - 2008
DECISION NO. DEC-E2010-095
PARTIES
Ms B
(Represented by Donal Ryan, B.L. instructed by
Don Ryan & Company Solicitors)
AND
A Leisure Company
(Represented by Mullins Lynch Byrne Solicitors)
File reference: EE/2007/407
Date of issue: 8 June 2010
HEADNOTES: Employment Equality Acts, 1998-2008, Sections 6, 8, 14 & 74 - Gender - Training - Conditions of Employment - Discriminatory Dismissal - Harassment - Sexual Harassment - Victimisation.
1. DISPUTE
1.1. This dispute concerns a claim by Ms B that she was discriminated against by a leisure company on the grounds of gender contrary to section 6(2)(a) of the Employment Equality Acts 1998-2008 in relation to training, conditions of employment and dismissed in a discriminatory manner in terms of sections 8, that she was harassed and sexually harassed in terms of section 14A of the Acts and that she was victimised in accordance with section 74 (2) of the Acts.
1.2. The complainant referred her claim to the Director of the Equality Tribunal on 9 August 2007 under the Employment Equality Acts. On 18 August 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(3A) of the Acts and as part of my investigation I proceeded to a hearing on 24 February 2010 and final information was received on 30 March 2010. In accordance with the Equality Tribunal's normal practice in claims of sexual harassment the names of the parties involved have been withheld.
2. COMPLAINANT'S SUBMISSION
2.1. The complainant started working for the respondent on 28 February 2007 as manager in their playhouse. She submits that the General Manager (who was also a Director) made sexual advances to her from the second day of her employment when he said that he "needed sex" with her and he continued to make these demands nearly every day. He also said that that she would have to have sex with him and that she would not have obtained the job had it not been for him. He also suggested that they go out for a drink together on a number of occasions. When she rejected these advances he made her working environment intolerable. She was warned that she would be dismissed if she didn't follow his rules. She considered her best approach was that if worked hard and performed to the best of her ability the General Manager's behaviour would be addressed by the company and they would see how she was being treated.
2.2. The complainant submits that she received no training for the job. On 4 March 2007 she had to place a food order but was not shown how do it and was then shouted out by the General Manager when she got it wrong.
2.3. On 10 March 2007 the complainant submits that she was asked to write a dismissal letter for an employee she had only worked with once. When she refused the General Manager became really angry. Later that day she was accused of stealing money when fewer children than had been booked arrived for a party. At the end of the day the General Manager asked to talk to her about her behaviour but the complainant refused because it was outside working hours.
2.4. The complainant submits that on the following day the General Manager rang her to say she had been dismissed. They met in order that the complainant could handover the keys to the premises and the party book The complainant requested a letter giving the reasons for her dismissal and she refused to hand over the keys and party book when the General Manager said he had no time to write the letter. On 12 March 2007 after she got a phone call from the Gardai about the keys and party book she gave the items to her solicitor to return to the respondent. A week later she got a letter with the reasons for her dismissal.
3. RESPONDENT'S SUBMISSION
3.1. The respondent submits that the complainant started work on 26 February 2007 in the playhouse as manager and it was made clear to her that she was on 3 months probation.
3.2. The respondent submits that the complainant was at no time subjected to sexual harassment, harassment, victimisation or any other discriminatory treatment. The General Manager, who has subsequently left the respondent, submits that he never made sexual advances or remarks and never spent any time on his own with the complainant.
3.3. The respondent submits that on the complainant's first day she called a staff meeting and adopted a military style approach and spoke to everyone in a very intimidating way. The General Manager considered this style inappropriate as the playhouse is supposed to be a fun place.
3.4. The respondent submits the complainant had no involvement in food orders. The complainant was given assistance and trained in all procedures and it was made clear to her that she only needed to ask if she required further assistance. The respondent submits that the complainant would not take instruction from the General Manager or any other member of staff. The General Manager submits that the complainant would not listen to him when he tried to assist her. He concluded that she was not a team player. After a few days some parents complained about her manner.
3.5. On 11 March 2007 the General Manager wrote dismissing her, after she refused to talk to him the previous day. The complainant told him she had the keys and party book. There was no understanding that she should have these items and when she refused to return them he contacted the Gardai. The Playhouse suffered a significant loss because of the loss of the party book for four days as they could not take bookings.
4. FINDINGS & CONCLUSION
4.1. I have to decide if the complainant suffered discriminatory treatment on the grounds of her gender in terms of training, conditions of employment and dismissed in a discriminatory manner, whether she was harassed and sexually harassed, and if she was victimised in accordance with section 74 (2) of the Acts. 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.
4.2. Section 85A of the Act sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that she suffered discriminatory treatment. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In Dublin Corporation v Gibney, EE5/1986, the Equality Officer described prima facie evidence as "evidence which in the absence of any credible contradictory evidence by the employer would lead any reasonable person to conclude that discrimination had probably occurred."
4.3. The complainant has made serious allegations of sexual harassment which the General Manager has vehemently denied. No evidence was produced that was able to corroborate the testimony of either party in relation to the alleged incidents. Given the divergence of evidence and the lack of corroborating evidence then I must look at the credibility of the evidence of the complainant and the General Manager to try and establish what took place and whether that amounts to discrimination.
4.4. The General Manager denied that he harassed the complainant and gave evidence that he had problems with her work which he considered were good enough reason to dismiss the complainant. In a written submission he said he had concerns from her first day when she held a staff meeting. However, at the hearing it became clear that the staff meeting was not held on her first day but three or four days after she started. Also he referred to complaints from parents but he was unable to give any details of these complainants when asked at the hearing. The respondent also submitted a statement from their accountant in which he stated that after the complainant had been there a few days the General Manager told him he was having difficulties with the complainant's work and that he, the accountant, spoke to the complainant to clarify that the General Manager was her boss and everything should go through him. He also confirmed the difficulties that arose because the keys and party book were not returned. A member of staff, who worked as a play leader for the respondent at the time and is still working there, gave evidence at the hearing that she found the complainant intimidating and controlling as a manager. She confirmed that the staff meeting referred to was not on the complainant's first day but later in her first week. She also confirmed that difficulties arose because the party book was missing. She was unaware of any harassment.
4.5. The General Manager states that he tried to talk to the complainant after work on 10 March 2007 and she refused to talk to him. He then dismissed her in a telephone call the next morning. He issued a letter giving the reasons for her dismissal only after she demanded it and she withheld the keys and party book. The letter refers to "gross misconduct" but does not state what it was, it also refers to "previous warnings" and "numerous attempts to discuss the above problems" neither of which tally with the evidence given by the complainant or the General Manager himself. Clearly there were difficulties between the two and the General Manager discussed work problems with the accountant, who was not based on the premises. However, he did not discuss the dismissal with the accountant or anyone else. From the evidence given, I find it difficult to understand how the General Manager considered he had reason to dismiss the complainant in the manner that he did, without any warning or disciplinary meeting or discussing it with anyone else.
4.6. The General Manager contends that they were never alone and he was therefore not in a position to have carried out any of the harassment claimed but, in showing the difficulties he had with complainant, he refers to a number of phone conversations they had and discussions at work. The complainant contends they were alone at the beginning and end of each day.
4.7. These events took place over a period of two weeks but both the complainant and the General Manager were rather vague in a lot of the details they gave. Also there were discrepancies in relation to all the events. Furthermore, I found it unusual, that until it came out at the hearing, that neither mentioned before the hearing that they had known each other before the complainant started working for the respondent. It transpired that they had been acquaintances and in February 2007 when he started looking for a manager he tracked down the complainant as he thought she would be suitable, despite having no experience in that type of work. Although he was present he did not take an active part in the complainant's interview.
4.8. On the basis of the evidence presented I conclude that the respondent did not have enough reason to dismiss the complainant in such a summary manner within such a short period of time. Having considered the limited and contradictory evidence available to me I have to consider if there were other reasons for the breakdown in the working relation and the dismissal of the complainant. I therefore have to look at the credibility of the complainant and the General Manager and the evidence they presented. Taking everything into account I consider the complainant's version of events more credible and I conclude that the events she described took place.
4.9. Section 14A (7)(i) of the Act defines harassment as any form of unwanted conduct and Section 14A (7) (ii) defines sexual harassment as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature related to any of the discriminatory grounds and being conduct which has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. The incidents described by the complainant in relation to sexual demands amount to unwanted verbal contact of a sexual nature and I conclude that the complainant has therefore established a prima facie case of sexual harassment.
4.10. Section 14A(2) gives an employer a defence against harassment and sexual harassment if it can prove that it took such reasonable steps as are practicable to prevent the harassment. The respondent had no written procedures which would tell the complainant how to make a complaint. The complainant gave evidence that she made no complaint before she was dismissed. However, whilst no one else in the respondent company was aware of the incidents the General Manager was the most senior member of staff, as well as being a Director, and under section 15(1) of the Acts the respondent is vicariously liable for the actions of the General Manager. Therefore the respondent is unable to avail of a defence under section 14A(2) and is therefore unable to rebut the complainant's prima facie case of sexual harassment.
4.11. Section 14A(b) of the Acts states that where "such harassment has occurred and ... the victim is treated differently in the workplace or otherwise in the course of his or her employment by reason of rejecting or accepting the harassment .... the harassment or sexual harassment constitutes discrimination by the victim's employer in relation to the victim's conditions of employment." In this case I conclude that the incidents in relation to going out for a drink, the food order and allegation of theft arose because of the General Manager's reactions to the complainant rebutting his sexual advances and therefore constitute discrimination in relation to conditions of employment.
4.12. Furthermore, as set out in paragraph 4.5, I conclude that the respondent had insufficient reason to dismiss the complainant for the reasons put forward. Therefore, as I found the complainant's allegations to be credible I conclude that the complainant was dismissed by the General Manager because of his reaction to her refusing his sexual advances. I therefore find her dismissal was discriminatory on the grounds of gender.
4.13. The complainant claimed discrimination in relation to training. She contends that she requested training in certain aspects of the job whilst the respondent states that such training was available if she had asked. Given the short time that she was working for the respondent it is very difficult to judge firstly if any difficulties had arisen in relation to training and secondly whether or not they would have been resolved if the complainant had stayed working for the respondent. I therefore find that no discrimination took place in relation to training.
4.14. The complainant alleges that she was victimised. Section 74 (2) states: ".....victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant, ......." In this case the complainant made no complaint of discrimination or started any proceedings whilst she was employed by the respondent, therefore she could not have suffered "adverse treatment" in accordance with section 74(2) of the Acts. I find that the claim of victimisation fails.
5. DECISION
5.1. I have investigated the above complainant and make the following decision in accordance with section 79 of the Acts:
- that the respondent did discriminate against the complainant in relation to conditions of employment, did sexually harass her and did dismiss her in a discriminatory manner,
- the respondent did not discriminate against the complainant in relation to training, did not harass her and did not victimise the complainant.
5.2. In accordance with S. 82 of the Employment Equality Acts 1998 to 2008, I therefore order that the respondent pay the complainant €18,000, the equivalent of one year's pay, in compensation for the distress experienced by the complainant in relation to the above matters, this is not in the nature of pay, and therefore not subject to tax.
5.3. I also order the respondent to develop a code on the prevention of harassment on all of the nine discriminatory grounds covered by the Employment Equality Acts, which is modelled on the Employment Equality Act, 1998 (Code of Practice) (Harassment) Order, 2002 (S.I. No 78 of 2002). The code should be put in place within 3 months from the date of this decision and the respondent should communicate the policy to all employees and displays it permanently in a prominent position in the office.
____________________
Hugh Lonsdale
Equality Officer
8 June 2010