ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001683

Complaint for Resolution:

At:    Workplace Relations Commission, Haddington Road, Dublin 4.

Date of Adjudication Hearing: 25/04/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, Section 79 of the Employment Equality Act, 1998, and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background

The Complainant was employed as a Sales Assistant in a shoe department of a major store by the Respondent from 1^st July 2014. The Complainant was paid €10.50 an hour and she worked full-time. The Complainant was provided with a written statement of her Terms and Conditions of Employment.

The Complainant referred a complaint to the Workplace Relations Commission on 1^st February 2016 alleging gender discrimination, harassment and sexual harassment. The Complainant stated the most recent incident occurred on 1^st September 2015.

Summary of Complainant’s Position.

The Complainant is employed as a Sales Assistant in a Concession in a major Department Store. The alleged person harassing and sexually harassing the Complainant works in another Concession next to the Complainant, again in the major Department Store.

The Complainant alleged that while employed between July and September 2015 she was subjected to a number of instances of unwanted contact, both verbal and physical, including harassment and harassment of a sexual nature by a named employee of another employer in the same Department Store. The Complainant was subjected to demeaning and offensive comments. She was subject to inappropriate comments. She was subject to verbal harassment and emotional stress. The Respondent allowed, permitted and failed to provide the Complainant was a safe place to carry out her employment. The Respondent also failed to provide appropriate supervision while employed.

The Respondent failed to have appropriate policies, procedures in place to deal with and prevent harassment at work. The unwanted contact had the effect of violating the Complainant’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the Complainant at work.

Summary of Respondent’s Position.

There were five employees, including the Manager, in the Concession in the Store. The employee who was allegedly harassing the Complainant had been working in another Concession in the same Department Store, had left and had returned as Assistant Manager. The Manager stated that she was not aware of any issues nor had the Complainant made her aware of the ongoing harassment. However the Manager witnessed an incident in relation to the Complainant towards the end of August 2015. The Manager spoke to the Manager of the alleged Harasser. This Manager spoke to the Complainant but the Complainant stated she did not want her, the Manager, to speak to the alleged harasser.

Subsequently the alleged harasser had made further comments on 7^th September 2015 as observed by the Complainant’s Manager. As the alleged Harasser’s Manager was on leave, the Complainant’s Manager spoke to the alleged harasser and instructed him to cease and stop his harassment of the Complainant.

The Manager of the alleged harasser requested written statements in relation to the incidents from 4 named individuals, including the Complainant. It was the Complainant’s Manager who typed up the Complainant’s statement in conjunction with the Complainant.

The Manager of the alleged harasser carried out an investigation resulting in the Harasser being suspended and informed he would not be returning to work in the major department store. This outcome was communicated to the Complainant.

The alleged Harasser has not worked in the Department Store since September 2015. Copies provided, of the statements taken by the Manager of the Concession where the alleged harasser worked, to the Hearing.

The Respondent also sent a letter to the Complainant dated 16^th September 2015 outlining their support for her.

The Manager confirmed at the Hearing that she had participated in a Training Course some 3.5 years ago in relation to dealing with complaints from employees.

Findings

Section 14 A (7) of the Employment Equality Act defines what constitutes harassment as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, intimidating or offensive environment for the person.

Statutory Instrument S.I. No. 208 of 2012 – Employment Equality Act, 1998 (Code of Practice) (Harassment) Order 2012 sets out in very clear terms what constitutes Harassment and Sexual Harassment. Part 4 and 5 of the Code sets out the core elements of a Policy and Complaints Procedures to be used by Employers. It also sets out how complaints against non-employees should be dealt with while recognising the difficulties that may arise if a non-employee does not wish to participate in an investigation.

I note that the Respondent does not have a Policy on Harassment and Sexual Harassment. However I also note that the Code does not impose any legal obligations in itself, nor is it an authorative statement of the law, rather the purpose of the Code is to encourage Employers and other bodies to follow the Recommendations that are appropriate to their employments.

On the basis of the evidence from both Parties I find as follows:

1. The Complainant asserts that she was harassed from July to September 2015. She also confirmed that she did not inform her Employer that she was being harassed by an employee of another Employer working near her in the same Department Store.

2. The Complainant’s Manager observed an incident at the end of August 2015 in which the alleged Harasser clearly was Harassing the Complainant. The Manager spoke to the Manager of the alleged Harasser, who in turn spoke to the Complainant. However the Complainant confirmed at the Hearing that she had requested the Harasser’s Manager not to speak to him. She gave no reason at the Hearing as to why she did not want the issue pursued.

3. However the Complainant’s Manager observed a further incident on 7^th September 2015. She approached the Harasser’s Manager, who decided to conduct an investigation in relation to her Employee. This Manager requested statements from all concerned, including the Complainant, and these were provided. The outcome was the Harasser was suspended and removed from the site.
4. The Complainant confirmed at the Hearing that there have been no incidents since.

Decision.

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

On the basis of the evidence and my findings above I declare the complaint is not well founded. The Complainant did not inform her Employer of the harassment by an employee of another Employer. The harassment of the Complainant was investigated by the Manager of the Harasser, resulting in his suspension and his removal from the site.

Date:     18^th July 2016