FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : A COMPANY (REPRESENTED BY MULLINS LYNCH BYRNE SOLICITORS) - AND - A WORKER (REPRESENTED BY DON RYAN AND CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr Nash |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2008
BACKGROUND:
2. The Company referred its case to the Labour Court on the 20th July, 2010. A Labour Court hearing took place on the 6th April, 2011. The following is the Court's determination:
DETERMINATION:
This is an appeal by the Company of an Equality Officer’s decision dated 8th June 2010, in a claim brought by Ms. A against her former employer.
For ease of reference in this Determination the parties will be referred to by the designations given to them at the original hearing i.e. the Company will be referred to as “the Respondent” and Ms. A will be referred to as “the Complainant”.
The Complainant complained that she was discriminated against on the gender ground contrary to Sections 6(2)(a) of the Employment Equality Acts 1998-2008 (the Acts) in respect of her training, conditions of employment and dismissal in a discriminatory manner. Furthermore, she complaints that she was harassed and sexually harassed in breach of the provisions set out in Section 14A of the Acts and that she was victimised in breach of the provisions in Section 74(2) of the Acts. The complaints were referred to the Equality Tribunal on 9th August 2007.
The Equality Officer found that the Respondent did discriminate against the Complainant on the gender ground in relation to her conditions of employment, did sexually harass her and dismissed her in circumstances, which amounted to discrimination against her on the gender ground. He found that the Respondent did not discriminate against the Complainant in relation to training, did not harass her and did not victimise her. He awarded the Complainant the sum of €18,000, the equivalent of one year’s pay in compensation for the distress caused and ordered the Respondent to develop a code on the prevention of harassment on all discriminatory grounds modelled on the Employment Equality Act, 1998 (Code of Practice), (Harassment) Order, 2002 (S.I. No. 78 of 2002).
The Respondent appealed against the Equality Officers findings against it. There was no cross appeal.
Background
The Complainant was recruited by the General Manager of the Respondent to work as Manager of the Respondent’s children’s play facility. The Complainant was employed with the Respondent from 28th February 2007 until 11th March 2007. She was dismissed on that date. On 9th August 2007, the Complainant referred a complaint of discrimination, harassment, sexual harassment and victimisation against the Respondent to the Equality Tribunal. In her complaint to the Equality Tribunal she alleged that the Respondent’s General Manager had discriminated against her
The Complainant’s Case
Mr. Don Ryan, B.L., instructed by Donal Ryan & Company Solicitors, on behalf of the Complainant submitted that the Respondent had discriminated against her when the General Manager, a Director of the Company, made sexual advances to her from the second day of her employment and continuing repeatedly thereafter.
Mr. Ryan stated that almost as soon as she commenced employment the General Manager subjected the Complainant to unwanted comments and attention of a sexual nature. In particular he repeatedly asked her to go for a drink with him, repeatedly commented that she“looked good”, and repeatedly stated“I need sex with you”. Mr. Ryan said that the Complainant emphatically rejected these advances. He stated that the General Manager then told her that she would not have obtained the job had it not been for him and that she would“be dismissed if she didn’t play by his rules”, until finally he gave her an ultimatum“If you don’t’ have sex with me your job is gone”. She was dismissed the following day.
When she rejected these advances he made her working environment intolerable. He refused to assist her in her duties and deliberately misled her. She was warned that she would be dismissed if she didn't follow his rules. She decided that her best approach was to work hard and perform to the best of her ability and was of the belief that the General Manager's behaviour would be addressed by the Company when they would see how she was being treated.
Mr. Ryan stated that on 10th March 2007 the Complainant was asked to write a dismissal letter for another employee to the effect that his standard of work was unacceptable. She had only worked with this employee on one occasion and she was of the view that it would be wholly inappropriate to do so. When she refused the General Manager became very angry. Later that day she was accused of stealing money when fewer children than had been booked arrived for a party, she charged them less than the minimum rate as she felt that such a decision was within her remit. In the aftermath of these incidents she began to cry. At the end of the day the General Manager asked to talk to her about her behaviour but she refused as it was outside working hours.
Mr. Ryan submitted that the General Manager’s behaviour was conducted for the purpose of undermining and humiliating her because she had rejected his advances. As there was no grievance, disciplinary or sexual harassment policy in place, she did not know how to deal with the matter. Ultimately, she hoped that by ignoring his advances and solicitations he would get the message and cease.
The following day the General Manager telephoned her and told her that she was been dismissed. He asked her to return the book containing details of the business bookings and the keys to the premises.
Thereafter she contacted the Garda� and spoke to a female Garda and explained that she had been dismissed and asked for assistance. The Garda replied that she should contact her Solicitor, as this was a civil matter.
Later that day she met with the General Manager and requested a letter setting out the reasons for her dismissal, when he refused to do so she then refused to hand over the keys and book containing the bookings. On 12th March 2007 after she got a phone call from the Garda� about the keys and the book. She then gave the items to her Solicitor to return to the Respondent. A week later she got a letter with the reasons for her dismissal.
Mr. Ryan told the Court that the Respondent had no policies in place dealing with harassment or sexual harassment.
The Respondent’s Case
Mr. Shane O’Callaghan, B.L. instructed by Mullins Lynch Byrne Solicitors, on behalf of the Respondent denied the allegation of discrimination and/or harassment. He told the Court that at no point during the course of her employment, at her dismissal or in the aftermath of her dismissal had the Complainant ever made any allegations of discrimination and/or harassment. The first time the Respondent became aware of any such allegation was over five months after her dismissal and then it was informed by the Equality Tribunal, and not by the Complainant or her Solicitor, of the claims made against it.
Mr. O’Callaghanstatedthaton the Complainant's first day at work she called a staff meeting, at which she adopted a military style approach and spoke to everyone in a very intimidating way. The General Manager considered this style of management inappropriate.
Mr. O’Callaghanstated the Complainant had no involvement in food orders; this was the Chef’s duty.
He stated that 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. Mr. O’Callaghanstated that it quickly became clear that the Complainant would not take instruction from the General Manager or any other member of staff. She was uncooperative, not a team player, was very difficult to deal with and some parents and staff complained about her manner.
He stated that all of these issues were pointed out to the Complainant by the General Manager and the Company’s Accountant at an early stage, however, the Complainant refused to engage with the General Manager when he tried to discuss these difficulties with her.
On 11th 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 as they were imperative to the running of the business when she refused to return them he contacted the Garda�. When the Company Accountant telephoned her after she was dismissed, she acknowledged that she had the items. When he enquired if there was anything bothering her, she made no mention of sexual harassment.
Mr. O’Callaghanstated that the reason for the Complainant’s dismissal was that she was unsuitable for her role and for no other reason. He stated that it was not as a result of discrimination based on her gender and submitted this was a vexatious claim with no corroborative evidence whatsoever.
Witness Testimony
Ms. A, the Complainant
Ms. A,told the Court that she moved to Ireland from the Czech Republic in 2004. She met the General Manager at the opening launch of children’s play facility in December 2006 following which he suggested to her that she should apply for the position as manager of the facility. She attended for interview and was offered the job on a salary of €18,000 per annum, which would increase to €20,000 if profitability increased. She denied knowing that she was on three months probation and told the Court that she had never received a letter dated 28th February 2007 offering her the job, detailing the salary and outlining details of her probationary period.
She recounted difficulties she had in relation the ordering of food and supplies. She stated that the codes necessary for ordering the food had not been furnished to her. She stated that the General Manager gave out to her for not getting things rights. She stated that the work practices in the facility were not organised and she felt it necessary to put some structure and organisation in place. She had a meeting with staff within two days of starting work when she gave them her ideas.
The Complainant stated that she had spoken to the Accountant on two occasions when he visited the site and he asked how she was getting on. She told him that she was getting on fine; she mentioned one problem relating to the fact that she had overcharged a customer.
She told the Court that the General Manager was not making her life easy; he told her that she looked good and asked her out for a drink. She told him that it was inappropriate to do so. She said that he would always make sure that they were on their own whenever he made sexual advances towards her. She could not remember when or where these incidents occurred, except that sometimes it occurred when she was at the till. Finally he gave her an ultimatum“If you don’t’ have sex with me your job is gone”.
The witness told the Court that she wanted to work hard to prove herself and that the General Manager would not give her the appropriate information to do her job, e.g. instructions on how to order supplies and on how to organise party bags. When questioned why he was behaving in this way the witness said it was because she would not have sex with him. She said that she was really upset and was crying one afternoon as he gave out to her when on this occasion she had undercharged a customer by not applying the minimum rate.
On Saturday 10th March 2007, she said that the General Manager asked her to stay after work and that if she did not have sex with him that she would be fired. She told him that she would not stay, as she was not paid after 6pm. The following morning she received a telephone call from him telling her that she was dismissed, she stated that the General Manager questioned her about undercharging a customer. She stated that she was so upset that an allegation of stealing had been made against her and that she had been unfairly dismissed that she telephoned the Garda� to ask for their assistance however, she did not mention any alleged sexual harassment to the Garda�. She explained to the Court that in her country if something like this happened (referring to her dismissal) she would contact the police for assistance.
The witness said that she then telephoned the Company Accountant as she wanted to tell him the truth about the dismissal but again she made no mention of any alleged sexual harassment. She tried to ask him for help, as she believed that he would see that she had done well for the Respondent. He was not supportive of her case.
The witness accepted that she had held the book containing the bookings and the keys and that both the General Manager and the Accountant had asked her to return these items. On Monday 12th March 2007 she decided to go to her Solicitor and leave them with him for return to the Respondent.
The witness gave evidence of how well she has been doing in her new employment since leaving the Respondent and explained that she has received many awards for her work and has been made offers of promotion.
Mr. B., Company Accountant
Mr. B. was the Administrator and Company Accountant for the Respondent at the time of the events and the General Manager reported to him. He said that the Company had only been formed a couple of months when the Complainant was recruited in February 2007. His work with the Respondent finished a couple of months after the Complainant was dismissed.
Mr. B. told the Court that he was on the interview panel that recruited the Complainant. He said that despite her lack of experience in the work, they had no one to run the children’s play facility at the time and the intention was to give her training on the job. They needed someone urgently to run the place as the General Manager had been running the entire operation since it opened. He said that the Complainant was informed that she would be on a three-month probation and that he had instructed the General Manager to write her a letter to that effect.
On 4th March 2007 Mr. B. said that he got a telephone call from the General Manager who told him that he was dissatisfied with the Complainant as she was changing staff rosters without consultation with the staff. These changes were causing major difficulties for the staff who were mostly students filling in between college timetables. The General Manager described her as like a “Sergeant Major”. Mr. B. said that he then proceeded to telephone the Complainant to discuss the difficulties and to instruct her to liaise with the General Manager in the event of any changes being proposed. She agreed to comply with these instructions.
In the following few days he had further calls from the General Manager saying that the Complainant has made more changes without consultation. The witness spoke to the Complainant a second time and explained that there were more complaints from staff and that she was not doing what she had said she would do, she apologised and said that she would abide by his instructions. When he enquired about how she was getting on she told him that she was happy and excited about the job. He said that she was very calm.
The witness told the Court that on Sunday 11th March 2007 he received a telephone call from the General Manager to say that he had dismissed the Complainant. The General Manager explained that on the previous day he had wanted to talk to her about her work but she had “totally blanked” him in front of others. The General Manager told him that he asked her to come to his office and she refused, he said that he could not take anymore of her behaviour and he dismissed her. The General Manager told him that she had stolen the party bookings book and the keys.
Mr. B. stated that he then telephoned the Complainant. She told him that she could not work with the General Manager due to their clash in personalities. He then discussed the return of the items.
In cross-examination he said that the Complainant has never mentioned that she had been sexually harassed and that the first occasion that he became aware of such an allegation was when the claim was notified from the Equality Tribunal.
He stated that when he telephoned the Complainant on 11th March 2007 he told her that he would come to the site with another Director of the Company to discuss the matter of her dismissal and to try and resolve matters, on condition that she return the items. He stated that she seemed happy with that suggestion.
On 12th March 2007 he told the Court that he had a telephone call from the Complainant’s Solicitor to advice of a pending unfair dismissal claim.
Ms. C., witness for the Respondent
Ms. C. stated that has been employed by the Respondent since its inception in November 2006; she is employed as a party host in the children’s play facility. She told the Court that prior to the Complainant joining the Respondent that there were no major issues and there was a good atmosphere. When the Complainant joined she called a meeting within a couple of days and informed the staff about their faults. This left everyone confused. The witness thought that they were doing fine. The witness described the Complainant as domineering in that only her opinion counted and she was disrespectful to the staff. The witness said that she told the General Manager that she was not happy with the Complainant’s attitude to her.
The witness said that she was not aware and had not witnessed any incidents/difficulties between the Complainant and the General Manager concerning any matters of sexual harassment. She did however; notice a change in attitude in the Complainant on her last day. The Complainant seemed to be upset, and the witness was aware that an incident had occurred between the Complainant and the General Manager in relation to the undercharging of a customer. When asked if there had been any allegations of a sexual nature made against the General Manager that she was aware of she replied in the negative.
Mr. D., General Manager
Mr. D. started the Company with two others in October 2006, both non-executive Directors. Mr. D. was a minority shareholder. A fourth person came in as a non-executive Director at a later point and provided funding for the Company. As the business took off and it became obvious that he could not run the Company by himself, the Respondent decided to recruit a manager to run the children’s play facility. The witness said that he approached the Complainant about the job and they had a number of meetings in the adjoining bar/caf� to discuss the job.
He stated that once the Complainant was employed he tried to help her to do the job but she rebuffed him and said that she knew what she was doing and that she did not need his help. He stated that when difficulties arose with the work rate of the kitchen staff, he tried to sort the matter out, he told the Complainant that there were electrical difficulties with the deep fat fryers, however the Complainant was not interested in his explanations and accused him of taking the employees’ side.
The witness stated that he was not happy with how the Complainant addressed the staff at her inaugural meeting. However, he had agreed to attend the meeting as an observer only as she was not happy with him attending in the first place. At the meeting the Complainant suggested changes to the employee’s rosters. Mr. D. stated that staff members were very unhappy with the proposed changes, as they had limited time availability due to their college commitments.
Mr. D. stated that on one occasion after the Complainant had ordered two televisions, which had not arrived, she came into his office and shouted at him. Another occasion when he was in the middle of giving a lesson to a customer she interrupted him to discuss a bounced cheque. He told the Court that the Company had a policy on charging a minimum rate and he had difficulty with the Complainant undercharging that rate as it could cause difficulties for other customers going forward. He stated that when he spoke to her about this, instead of accepting the policy she challenged him on it.
He stated that on 10th March 2007, he did not accuse her of ‘stealing’ when he questioned her about the undercharging, but was concerned about till shortages as he was accountable for all monies.
He stated that he regularly tried to speak to her about her communication/management skills and offered at various times to sit down and discuss the matter with her and to devise a management strategy for her. She refused to arrange a time to met and told him that he should looked after his end of the business and that she would look after the children’s play facility. He said that as some staff members were finding her intimidating he was trying to mediate between them. As he was frustrated with the lack of progress he spoke to the Accountant, on 4th March 2007 about the problem. The Accountant then spoke to the Complainant and she agreed to cooperate and in future she agreed not to make changes without running it by the General Manager.
Mr. D. told the Court that he had not instructed the Complainant to dismiss an employee. He stated that there was no issue of dismissing this particular employee. He said that the employee in question was never dismissed. He said that when it came to ordering food that the kitchen staff were responsible for that duty. He said that any attempts he made to assist her in her duties were rejected and she would not listen to him.
On 10th March 2007 he said that he made a number of attempts to try and speak with the Complainant. He suggested meeting at lunchtime but she said that she was too busy and then he suggested after 6pm, she refused telling him that as she was only employed until 6pm.
Mr. D. stated that despite her assurances to the Accountant, he felt that he was getting nowhere and so he decided on the morning of Sunday 11th March 2007 to telephone her and dismiss her. He told the Court that following the telephone call she came to the workplace and in a very arrogant manner, said that she had the business booking book and the keys and that they would not be returned unless she got her job back. He then telephoned the Accountant. When he did not get the items back he contacted the Garda� due to the extreme difficulties it posed for the business being without the items. They were returned via her Solicitor a couple of days later.
The witness vehemently denied sexually harassing the Complainant. He said that he had been working in Ireland since 1995 and had worked at a high profile national level, working frequently with young people and was acutely aware of the code of ethics and of discrimination law.
When questioned on the specific allegations, the witness stated that he never asked her to go for a drink with him, he never asked her to have sex with him, he never gave her an ultimatum or threatened her that she would lose her job if she did not have sex with him. He said that he could not remember whether he ever told her that she was looking good. He said that there were always people about so it would be unlikely that he would be alone with her.
The Court’s Findings
The case before the Court concerns a complaint that the Complainant was subjected to acts of sexual harassment in the course of her employment with the Respondent and that her employment was terminated wholly or mainly from having rejected sexual advances made by the General Manager, in contravention of the Acts.
The Respondent submitted that in order to succeed the Complainant must prove that the acts of harassment did in fact take place, and that this alleged conduct brought about her dismissal when she refused to comply with the General Manager’s requests. In their written submission to the Court they denied that these acts occurred. The Respondent pointed out that the Complainant never reported the alleged incidents of sexual harassment.
The Respondents called a number of witnesses to rebut the Complainant’s allegations of sexual harassment.
Counsel for the Complainant contended that it is sufficient to establish that sexual harassment did occur and that once aprima faciecase is established the onus then shifts to the Respondent to prove that the dismissal was not discriminatory.
The Burden of Proof
Section 85A of the Acts provides that where facts are established from which discrimination may be inferred the onus of proving the absence of discrimination shifts to the Respondent. If those facts are established on the balance of probabilities, and they are regarded by the Court as sufficiently significant to raise the inference contended for, the burden of proving that the principle of equal treatment has not been infringed in relation to the Complainant shifts to the Respondent. The Respondent must then discharge that probative burden on credible evidence and on the balance of probabilities.
There is a complete conflict between the Complainant’s evidence on the alleged sexual harassment which she says culminated in her dismissal, and the evidence given by the General Manager.
In this case the Court is not concerned with the fairness or otherwise of the Complainant’s dismissal,per se. What is alleged is that the dismissal was wholly or mainly occasioned by the General Manager’s treatment of her when she refused to have sex with him.
The Court has examined the submissions, the evidence and all the witness testimony and considered the following points in reaching its decision: -
- No complaint of sexual harassment
It is not disputed that the Complainant made no complaint of sexual harassment to the Respondent at any time during the course of her employment. The Complainant told the Court that she was so upset following her dismissal that she contacted the Garda�, as that was the normal thing to do in her country. However, she never mentioned any alleged sexual harassment to the Garda�. Indeed it was five months after her dismissal that the allegation of sexual harassment was made, at the instigation of her legal adviser.
When questioned as to why she did not report the General Manager’s behaviour to the Accountant, whom she said that she got on well with, she replied that as a new employee she was reluctant to do so. She also told the Court that she told nobody at all about the allegations of sexual harassment, not even her friends. However, in cross-examination she said that she had mentioned it to her mother in a phone conversation to home but that her mother took little notice of it.
- - The Complainant’s testimonies to her Solicitor
In a further fuller statment, outlining in greater detail the 13 days of her employment with the Respondent, dated 24th March 2007, it was at this point that the Complainant, for the first time, outlined details of the alleged sexual harassment. She states:
- “He started to made life hard for me since I’ve said no for what he asked me for. First of all he started to be saying thing like I need a sex,….After that he said very clearly that I have to have a sex with him, that without him I wouldn’t get the job and if I wont follow his rules (doing nothing) Ill be fired. I answered that he won’t get what his looking for and that I wasn’t employed by him, but by [Accountant] on the phone from Dublin.”
She told the Court that it was not until she went to her Solicitor that she made any mention of the sexual harassment allegation. It was at this point that the Solicitor referred her to a colleague, as she would be more comfortable discussing the matter with a female. A new statment was then prepared for the Equality Tribunal hearing dated 1st September 2008. This statement stated:
- “The first clear instance of discrimination and less favourable treatment based on gender occurred when [the General Manager] made unwanted and unsolicited sexual advances towards me. He said he “needed sex” with me. These unwanted advances began during the first week of my employment. [The General Manager] said to me that I would have to have sex with him and that I would not have obtained my job with the company had it not been for him and he further stated that if I did not follow his rules, then I would be fired. I was absolutely shocked at what occurred. I always believed that if I worked hard in the Company and performed to the best of my ability that [the General Manager’s] behaviour would be addressed by the Company and they would see how he treated me”.
The General Manager also submitted a statement to the Equality Tribunal dated 14th October 2008 in which he denied the accusation made above, he stated:
- “At no time did I subject the Complainant to sexual harassment, harassment or victimisation. I never made any remarks of a sexual nature to the Complainant, nor did I make any remarks, which could have been interpreted as being sexual in nature or sexually suggestive. I never bullied or harassed the Complainant.
I absolutely refute the Complainant’s statement that I made sexual advances towards her during her first week of employment. I did not make any such advances towards her during any period or at any time. There was never any physical intimacy between the Complainant and I. Furthermore, I did not spend any time on my own with the Complainant during the time that she worked in the[the children’s play facility].”
In response to the General Manager’s statement the Complainant made a further statement. In that statement dated 11th June 2009 she stated that the General Manager had asked her out on several occasions but that she had refused. The Court notes that this was the first time she mentioned that he had asked her out.
- - No mention of the ultimatum allegedly given on the eve of her dismissal
Furthermore, in her submission and evidence to the Court the Complainant said that the General Manager gave her an ultimatum on Saturday 10th March 2007, on the eve of her dismissal when he purportedly told her to stay after work and that if she did not have sex with him that she would be fired.
There is no reference to this ultimatum in her statement to the Equality Tribunal dated 1st September 2008. Counsel for the Respondent told the Court that the hearing before the Court was the first occasion that this ultimatum was mentioned.
Having examined the statement dated 1st September 2008 it focuses very much on the distress she suffered at being accused of stealing the Respondent’s party bookings book and the keys and in refusing to write a letter of dismissal. It states:
- “I completely and utterly reject any allegation whatsoever that I stole or unlawfully withheld any Company property and I am prepared to fully address any such allegation at the hearing of this matter.”
Furthermore, in the additional statement given to the Equality Tribunal on 11th June 2009 again there is no mention of the ultimatum allegedly given. In her submission to the Court she said that she felt “humiliated, frustrated and upset”.This statement is quoted in the context of her dismissal and the accusation of stealing. The Complainant does not outline details of being upset or distressed at anything the General Manager allegedly said of a sexual nature.
- - Denial of knowledge of three months probationary period
The Complainant was adamant that she was not aware that she was on three months probation as contented by the Respondent. However, in a letter submitted by her Council, from him to her Solicitor’s office, dated 14th May 2007, it states“I note that [the Complainant] was initially on a three month probationary Contract.”So clearly her Solicitor knew about the probationary period and the only way of knowing that information at that time was from the Complainant herself, as there had been no contract between the legal advisors and the Respondent at that stage.
No witnesses
There were no witnesses to any of the alleged acts of sexual harassment. Therefore, the Court has no corroborative evidence to attach to either the Complainant’s or the Respondent’s evidence.
Conclusions
This Court has held inMelbury Developments v Arturs ValpettersEDA 0917 that mere assertion in the absence of credible evidence is not sufficient to establish a prima facie case of discrimination:
- “Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”
The Court has come to the conclusion that the Complainant’s recollection of material events concerning work related matters during the period of her employment were precise and consistent. However, the evidence tendered in support of her allegation of discrimination was unclear and seemed to evolve over time.
While the Court could understand how in the first weeks of employment it might have been difficult to report the conduct of the General Manager, the Court finds it difficult to understand why, if the alleged incidents of sexual harassment occurred, the Complainant did not confide in someone who might have been able to offer some assistance. The Complainant has been unable to offer corroboration of the allegations made to establish a prima facie case and to transfer the burden of proof to the Respondents.
In such circumstances the Courts finds on the balance of probabilities that the Complainant has not established facts from which the Court could hold that aprima faciecase has been established in the Complainant's favour.
Accordingly, the Court finds that the Complainant has not made out aprima faciecase of discrimination, within the statutory meaning of that term, on the gender ground.
Determination
For all of the reasons referred to, the Court is satisfied that the Respondent’s appeal against the Equality Officer’s finding of discrimination on the gender ground, sexual harassment and discriminatory dismissal is allowed and the Decision is set aside.
The Respondent accepted that at the material time it had no policies in place to deal with allegations of sexual harassment. The Court was told that it was a new Company in a start up phase, the Complainant was the first full time permanent member of staff to be employed, all others were employed to slot in with their student timetables. The Court upholds the Equality Officer’s order to the Respondent to develop a Code on the prevention of harassment which is modeled on the Employment Equality Act, 1998 (Code of Practice), (Harassment) Order, 2002 (S.I. No. 78 of 2002), said code to be implemented within three months of this Determination.
Signed on behalf of the Labour Court
Caroline Jenkinson
23rd May, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.