DEC-E2016-029

EMPLOYMENT EQUALITY ACTS

DECISION NO. DEC-E2016-029

PARTIES

A Female Employee

(Represented by Business & Commercial Solicitors)

AND

A Café Owner

(Represented by Patrick P. O’Sullivan & Co. Solicitors)

File Reference: EE/2014/001

Date of Issue: 12th February 2016

1. DISPUTE

1.1 This dispute concerns a claim by the Complainant that she was subjected to harassment and/or sexual harassment in the course of her employment with the Respondent contrary to Section 14A of the Employment Equality Acts (hereinafter also referred to as ‘the Acts’), before she was summarily dismissed by the Respondent as a reaction to making a complaint of discrimination under the Acts.

1.2 Through her Solicitors, the Complainant referred a complaint under the Acts to the Director of the Equality Tribunal, received on 6th January 2014. On 12th August 2015, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Aideen Collard, an Adjudication / 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 had been sought and received from the Parties. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 27th August 2015. Both Parties were represented and in attendance along with a number of witnesses. All written and oral evidence and submissions presented to the Tribunal including documentation submitted before and during the hearing have been taken into consideration when coming to this decision. I also indicated that I would be relying upon the key statutory provisions and case law relating to harassment, sexual harassment and victimisatory dismissal.

1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with Section 83(3) of the Workplace Relations Act 2015.

2. SUMMARY OF THE COMPLAINANT'S SUBMISSIONS & EVIDENCE

2.1 The Complainant is a Polish national who has been residing in Ireland for a number of years. She was employed as a Catering Assistant in a small family run Café located near Dublin City Centre, owned and run by the Respondent and his wife. The Complainant commenced employment on 22nd July 2013 and worked part-time at the Café for approximately five months before the termination of her employment on 20th December 2013. She had been furnished with a written ‘part-time temporary’ contract providing for a three month probationary period. The Complainant contends that the Café was busy, she had been performing well in her position, and no issue regarding her performance had ever been raised by the Respondent. On Monday 9th December 2013 and before the sequence of events leading to her dismissal, she had been advised that the Respondent was opening a second Café which he wanted her to manage. This would amount to a promotion, bringing with it additional responsibility and an increase in pay.

2.2 The Complainant gave evidence that she worked in a small space alongside a number of other female employees and the Respondent’s wife in the Café. She alleged that the Respondent was always making sexual jokes and engaging in sexual innuendo with the female staff. In particular, she alleged that he had made comments with reference to what she did with her husband. Also alleged in her submission was that the Respondent was constantly looking at her in an inappropriate and lascivious or lustful manner and was touchy-feely around her. As the Respondent was “Bulgarian and married”, she never took his jokes seriously. Also as his wife was almost always present in the Café, there were cameras in the Café, and her husband knew the Respondent, she said she never felt unsafe owing to his conduct. However she disliked his jokes but needed the work and so accepted the situation. She never made a complaint in relation to this treatment but had indicated to another waitress called M that she felt uncomfortable around the Respondent, and queried whether he treated all the other female staff similarly. She also complained that her privacy had been violated as the Respondent had searched her bag in the staff room.

2.3 On Friday 13th December 2013, the Respondent held a Christmas party for his staff including a meal followed by drinks at a City Centre disco. The atmosphere was good and the group consisting of the Respondent, his wife, the Complainant and a number of other female staff enjoyed a few drinks and went dancing before going home at 2am, apparently all on good terms. The Complainant gave evidence that photos were taken during the course of the evening, primarily by the Respondent and his wife.

2.4 The staff were in good spirits the following Monday 16th December 2013 and there was talk about the new café. At the end of her shift, the Complainant asked the Respondent to see the photos from the Christmas party on his phone. He initially said he had deleted them but then showed her approximately ten photos of her dancing and one or two of the other staff. It was submitted that the photos taken depicted the Complainant in dance moves which were embarrassing and which she felt were taken by the Respondent for his sexual gratification. Specifically she said that it felt strange to see photos of her in a miniskirt and felt uncomfortable that a strange man and not her husband had taken so many photos of her. The Complainant spoke to her husband and the following day, she requested the Respondent’s wife “woman to woman” to ask the Respondent to delete the photos but she replied that it was his private business. She then asked the Respondent to delete them. He went mad and said he might have stored them. He threw the phone down at her before taking it back and deleting all of the photos of the party.

2.5 After lunch on Wednesday 18th December 2013, the Respondent informed the Complainant that he was letting her go at the end of the week and she would receive a letter. The Complainant returned to work at the Café the following morning of Thursday 19th December 2013 and asked to speak to the Respondent about the reasons for her dismissal. She said that she covertly recorded this conversation on her mobile phone and this recording was not proffered in evidence. She questioned what had happened to make the Respondent dismiss her when she was such a good worker and had the expectation of a promotion as a manager of the new café. The Respondent replied that there had been a breakdown in trust, that she was not part of the team and he was letting her go for personal reasons. The conversation became heated and he told her to go home and get her “papers”. The Complainant went home but returned to the Café again on Friday 20th December 2013, when the Respondent gave her a letter of the same date stating: “Due to a down turn in business, you were the last employee to enter the business. We are informing you that your contract of employment will be terminated as and from the 20th December 2013. The statutory rules of termination will apply and one weeks notice will be discharged.” She read the letter outside before challenging the Respondent again regarding the reason for her dismissal. He became very angry and threatened to call the Gardaí. She had been told that she would be paid for the Christmas period including pay in lieu of notice. However, it was only when she submitted a claim to the Rights Commissioner and sometime later that she received her outstanding pay and P 45.

2.6 In cross-examination, the Solicitor for the Respondent put to the Complainant, a number of what he perceived were credibility issues regarding her previous employment, her employment with the Respondent and the circumstances of her dismissal. When asked why she had never made a complaint, she responded that she felt safe and secure as she had her husband and matters only became clear when the Respondent had taken the photos of her. It was put to her that in her complaint form she had indicated that she felt uncomfortable about being photographed during the Christmas party and that the photos were taken without her permission. This was in conflict with her direct evidence, where she stated that she only became uncomfortable when looking at the photos the following Monday in work. It was also put to her that the Respondent had not understood why she had asked him to delete the photos and had said that he would be deleting them anyway as they were not very clear. She accepted that photos were taken throughout the course of the evening including photos of other people in the group. When put to her, she also accepted that the Respondent’s wife had taken photos of her including one of her standing behind the Respondent with her arms wrapped round his shoulders as produced at the hearing. In response, she said that they were drunk and people were having fun. It was also put to her that she had approached the Respondent in a belligerent manner and that he had not thrown the phone at her but had handed her the phone for her to delete the photos. Overall, it was put to her that he had never been inappropriate in his conduct towards her and the allegations were made in an attempt to extract money with a view to setting up her own tanning business. Finally, it was put to her that recording her conversation/s with the Respondent was a breach of fidelity and she was let go as it was quiet in January.

2.7 The former female member of staff, M referred to above, gave evidence on behalf of the Complainant and confirmed that general banter, sexual innuendo and gossip went on in the kitchen amongst the staff. The Respondent may have paid more attention to the Complainant but she not think she had a particular problem with him. She confirmed that the Complainant had asked her whether his habit of touching his staff was normal and she had replied that it was his way. When questioned by Solicitor for the Respondent, she confirmed that she had never seen the photos of the Complainant and also that she had told the Respondent that the Complainant had been recording him. M had resigned in December 2014.

2.8 Overall, it was submitted on behalf of the Complainant, that arising from the conduct outlined in evidence, she was specifically targeted by the Respondent in an entirely inappropriate and sexual manner in the course of her employment constituting harassment and/or sexual harassment within the meaning of the Acts. The photos taken by the Respondent portrayed the Complainant in a sexual way and she was more than just embarrassed. She was harassed, and in this respect a subjective test had to be applied. Upon raising a legitimate complaint of harassment, she was ostracised, vilified and intimidated by the Respondent. Furthermore, the Respondent’s dismissal of the Complainant the day after making her complaint was clearly indicative of victimisation and amounted to a victimisatory dismissal.

3. SUMMARY OF THE RESPONDENT’S SUBMISSIONS & EVIDENCE

3.1 The Respondent confirmed that he had employed the Complainant at the request of her husband whom she had referred to as her boyfriend. He said that in his six years in Ireland running a Café and employing staff of all ages, he has never had any issues or similar allegations made against him. There are twelve staff employed at the Café with three-five on duty at any time. His wife had been present for most of the period in question as he was away trying to open a new café which never materialised. He vigorously denied the Complainant’s allegations and in particular, that he ever touched her inappropriately, looked at her in a sexual manner or took photos of her for his own sexual gratification.

3.2 The Respondent confirmed that during the night of the Christmas party various members of the group were taking photos, and his wife took most of the photos including the aforementioned photo of the Complainant with her arms wrapped around him. He personally took approximately ten photos which included pictures of everyone attending the party and denies singling out the Complainant in any way. When the Complainant had demanded that he delete the photos of her from the party, which he said occurred on Monday 16th December 2013, he was unaware of her reason for so asking but had said they were not great anyway so he would delete them. The Complainant confronted him again the following day demanding that he delete all of the photos of her including the group photos. The Respondent confirmed that he had handed her the phone and told her to go ahead and delete them before taking it back and deleting all of the photos of her including group photos. The same day, M had informed the Respondent that the Complainant had been covertly recording her conversations with him and he did not see any reason why she would do this and took it personally. He confirmed that as the Complainant had been the last person in, he terminated her contract owing to the downturn in business and she was not replaced. He said he had to let someone go but when questioned, admitted that her conduct had helped him with his decision. He was not entirely clear as to the timeline but said that he had informed her that her last day of work was Wednesday 18th December 2013 and she would be paid for the rest of the week. When the Complainant came back to the Café later that week, she was confrontational and angry at her dismissal and Gardaí had to be called. He also confirmed that the Complainant and been dancing with him during the Christmas party and she had never made any complaint to him about his conduct.

3.3 The Respondent’s wife gave evidence on his behalf stating that he was a great man, that they had been married for a considerable period and had two children together. They had come to Ireland from Bulgaria to make a better future for the family. She had never noticed anything inappropriate in his conduct towards the Complainant either during the course of her work in the Café or at the Christmas party in question, and she said he would never have behaved in such a manner. She confirmed that the Complainant had never said why she wanted the photos from the Christmas party deleted. She felt that the allegations were being made against the Respondent to extract money and had greatly affected the family. She said that the only reason given by the Complainant for wanting the photos deleted was that she was not happy with them. She confirmed that she had taken photos of her husband dancing with the Complainant including the photo proffered in evidence at the hearing. She agreed that in addition to the downturn in business the decision to dismiss the Complainant also arose from a breakdown in trust.

3.4 P, a current female member of staff also gave evidence on behalf of the Respondent confirming that she had never witnessed any inappropriate behaviour on his part in the workplace. Nor had the Complainant ever mentioned feeling harassed and/or sexually harassed to her. She also confirmed that she had not attended the Christmas party in the belief that as the Complainant was much better at her job, the Respondent was going to let her (P) go at the end of that week. She was aware that there had been a dispute between the Parties over the photos from the party, culminating in the Complainant’s dismissal.

3.5 Overall, the Respondent submitted that the Complainant had not proffered any evidence of harassment, sexual harassment, victimisation and/or discrimination on the grounds of gender within the meaning of the Acts. Furthermore, there was no evidence that she had ever made any complaint that she was being harassed and/or sexually harassed by the Respondent. Accordingly, she had not made out a prima facie case of harassment and/or sexual harassment or discrimination on the grounds of gender. It was also submitted that the ‘victimisation’ box had not been ticked on the claim form and the complaint of victimisation was not raised until the Complainant’s written submission of 10th March 2015, some fifteen months later. The claim of victimisation was therefore out of time and/or any possible extension of time. Furthermore the Complainant had not provided any evidence to support her contention that she was dismissed from her employment for a discriminatory reason or as a result of making a complaint under the Acts. It was also submitted that the claim of sexual harassment is a separate claim to one of discrimination based on gender and the Complainant’s submissions were misconceived in this respect.

4. FINDINGS AND CONCLUSIONS OF THE ADJUDICATION / EQUALITY OFFICER

4.1 The issues for decision are whether or not the Complainant was subjected to harassment and/or sexual harassment in the course of her employment with the Respondent and whether her dismissal by the Respondent was in reaction to the Complainant making a complaint of discrimination under the Acts.

4.2 Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination and as well-established by the Equality Tribunal and Labour Court, requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred. 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. When investigating a complaint, the role of the Tribunal includes undertaking an examination of any conflicts of fact in the evidence presented by the Parties to arrive at reasoned findings. I propose dealing with the claim of harassment/sexual harassment and victimisatory dismissal in turn as follows:

Claim of Harassment/Sexual Harassment

Section 14(A) of the Acts broadly provide that harassment is any “unwanted conduct related to any of the discriminatory grounds”, whilst sexual harassment is any “form of unwanted verbal, non-verbal or physical conduct of a sexual nature.” This unwanted conduct must have the “purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person” and may “consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.” In Nail Zone Ltd -v- A WorkerEDA1023, the Labour Court defined harassment as follows: "The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts." Relevant to the matters raised in this complaint, Section 14A(3) also provides that: “A person’s rejection of, or submission to, harassment or sexual harassment may not be used by an employer as a basis for a decision affecting that person.” The Employment Equality (Code of Practice) (Harassment) Order 2012 confirms that although it must occur within the course of employment, harassment and sexual harassment can occur outside the workplace and “…may also extend to work-related social events” such as a Christmas party in the instant case, and no issue was raised by the Respondent in this respect.

4.3 I must firstly consider on the balance of probabilities whether the Complainant has established that she was either harassed and/or sexually harassed. On the evidence provided, I am satisfied that the Respondent and his wife ran the Café in a casual manner which did not adhere to the formalities one would expect in the workplace and encouraged a culture of banter including some sexual innuendo and gossip amongst the staff who were all female. I am also satisfied that the Respondent adopted an informal, tactile manner with his staff as borne out by the photo of him with the Complainant which was produced in evidence. This intrusion into personal space was also amplified by the tight working area in the Café. I also note that the Respondent had no employment equality policy in place or procedures for dealing with any grievances including complaints of harassment and/or sexual harassment.

4.4 Whilst such conduct is never permissible in any workplace and in certain circumstances could constitute sexual harassment, I am also satisfied on the balance of probabilities that the Complainant has not established that she was harassed or sexually harassed by the Respondent for the following reasons:

· Although I am prepared to afford the Complainant the benefit of the doubt in relation to the inconsistencies between her claim form, submissions and the evidence presented at the hearing, particularly as these were prepared on her behalf, I generally found her evidence inconsistent.

· Specifically her allegations of harassment/sexual harassment against the Respondent in the run up to the Christmas party were very general in nature and related more to his general demeanour rather than providing any detail including examples of particular incidents, acts, gestures or words spoken.

· Although understandable that the Complainant would not complain directly to the Respondent as the alleged perpetrator and also her boss, if she had felt as uncomfortable with his conduct as she asserted, I believe that she would have expressed more concern to the other staff. In her own evidence, she confirmed that never took his jokes seriously and that she never felt unsafe. Even applying a subjective test to her reaction to the conduct complained of, at its height, it falls far short of violating her “...dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment…”. Neither do I find that she was specifically targeted by the Respondent on the grounds of gender and/or was treated any differently from any of the other members of staff.

· I also find that the Complainant acquiesced with the conduct complained of and in this respect, her behaviour is entirely inconsistent with her complaint that she was harassed and/or sexually harassed by the Respondent. Aside from partaking in the general banter and gossip in the workplace, the Complainant admitted to dancing with the Respondent at the Christmas party and having her photo taken by his wife with her wrapped around his shoulders as produced at the hearing. This is not the behaviour that one would expect from someone who was being harassed and/or sexually harassed.

· I accept the Respondent’s evidence that there were many pictures of all of the staff including group and individual photos taken throughout the Christmas party by various member of the group. Although ill-judged, I do not accept that the Respondent specifically targeted the Complainant and took photos of her for his own sexual gratification. Based on her own evidence, I believe that the Complainant reacted as she did as she was embarrassed by the photos taken on the night in question.

Claim of Victimisatory Dismissal

4.5 From the contents of the claim form as supported by the submissions and evidence, I am satisfied that the Complainant intended to submit a claim for dismissal as a reaction to her prior complaint to the Respondent in relation to the photos taken of her at the Christmas party within the meaning of Section 74(2) of the Acts. Therefore, there is no question of a separate claim for victimisation being submitted at a late juncture requiring consideration of whether or not it is within time. Section 74(2) provides:

“For the purposes of this Part 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,…” A complaint relating to harassment/sexual harassment to an employer could constitute “a complaint of discrimination” within the meaning of this Section. In Department of Defence -v- Barrett EDA1017, the Labour Court set out the three components which must be present for a successful claim of victimisation under Section 74(2) of the Acts as follows:

“(1) The Complainant had taken an action of a type referred to at Section 74(2) of the Acts;

(2) The Complainant was subjected to adverse treatment by the Respondent, and;

(3) The adverse treatment was in reaction to the protected action having been taken by the Complainant.”

4.6 I must therefore firstly be satisfied that the Complainant had taken an action of a type referred to at Section 74(2) of the Acts before considering the second and third limbs of the test. Even if the complaint of discrimination (harassment/sexual harassment in the instant case) does not stand up as already determined, it is the making of such a complaint that triggers protection under this Section. In this respect, it is notable that taking the Complainant’s direct evidence at its height, at no stage in the course of her interactions with the Respondent, particularly in the days before her dismissal, did she ever refer to telling him that she felt ‘harassed’ and/or ‘sexually harassed’. I am satisfied that the Respondent took her complaint to mean that she did not like the photos from the Christmas party and wanted them deleted. I also have to consider whether this could have been construed as a complaint within the meaning of the Acts. This will depend on the surrounding factual circumstances and based on my findings above, I am not satisfied that this constituted such a complaint and is therefore not a protected act for the purposes of Section 74(2). It follows that it is not necessary to consider the second and third limbs of the test. I find it most likely that having acquiesced with the photograph taking and with the benefit of sobriety, the Complainant felt embarrassed by the photos and demanded that the Respondent delete them. This led to a complete breakdown in relations and trust, with the Respondent not understanding why the Complainant was taking such umbrage, and the situation deteriorating due to her covertly recording her conversation/s with him. I also believe that it was this breakdown in relations that influenced the decision as to which employee to let go owing to the expected downturn in business.

4.7 My role in this claim is to assess whether or not the Complainant was dismissed for a victimisatory reason in this case within the meaning of the Acts and the question of whether the dismissal was unfair for other reasons falls outside my remit as per Complainant -v- A Community Development Organisation DEC-E2012-187. In this respect, I find that the Complainant was not dismissed within the meaning of Section 74(2) of the Acts. For the sake of completeness, I do not consider that the Complainant either rejected or submitted to treatment amounting to harassment or sexual harassment within the meaning of Section 14A(3) of the Acts and therefore this was not used as the basis for the Respondent’s decision to dismiss her. This is not intended to in any way endorse the Respondent’s conduct which fell far short of what one would expect in any workplace including a small family business. Given the circumstances leading to the bringing of this claim, the Respondent would be well advised to review his employment equality policies and grievance procedures.

5. DECISION

5.1 I have concluded my investigation of the complaint herein and based on the aforementioned, I find that pursuant to Section 79(6) of the Act, the Complainant has not established facts constituting harassment and/or sexual harassment in the course of her employment with the Respondent, within the meaning of Section 14A of the Acts. I also find that her dismissal was not victimisatory within the meaning of the Acts. Therefore no onus shifts to the Respondent to rebut any inference and this complaint must fail.

5.2 Given the sensitivities in this case, I have exercised my discretion to anonymise this decision.

____________________

Aideen Collard

Adjudication / Equality Officer

12th February 2016