EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-058
PARTIES
A Worker
(represented by John M. Joy & Co. Solicitors)
V
A Fast Food Outlet
(represented by IBEC)
File reference: EE/2014/043
Date: 31st March 2016
1. The Claim
1.1 This claim concerns a claim by the Complainant that she was discriminated against by being subjected to regular occurrences of harassment and sexual harassment by her Manager (hereinafter the “Respondent”) which resulted in her discrimination, harassment and subsequent pregnancy related dismissal contrary to Section 14A (1) of Employment Equality Act 1998 and 2004 (hereinafter the “Acts”) on the grounds of gender. The family status claim was withdrawn on the day of the hearing.
1.2 The Complainant referred her claim to the Director of the Equality Tribunal on 5th February 2014 under the Acts.
1.3 On the 30th December 2015, in accordance with his powers under Section 75 of the Acts, the Director General of the Workplace Relations Commission delegated the case to me, Caroline McEnery, an Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Submissions were received from both sides.
1.4 In accordance with Section 79 (1) of the Acts and as part of my investigation both parties attended a hearing on the 5th February 2016.
1.5 The Complainant and the Respondent attended the hearing along with their representatives.
1.6 This decision is issued by me following the establishment of the Workplace Relations Commission, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with Section 84 (3) of the Workplace Relations Act 2015.
2. Complainant’s Submission
Gender Discrimination & Sexual Harassment
2.1 The Complainant stated she started working for the Respondent on the 11 November 2013. The Complainant states that at various times during the course of her employment she was subjected to unwanted sexual advances by her Manager.
2.2 The Complainant states during the course of her employment with the Respondent she was subjected to harassment, sexual harassment, gender bias, comments of sexual innuendo, intimidation, bullying, discrimination and endeavors on the part of her Manager to derogate the Complainant as a woman to undermine her confidence at work. Specifically, her Manager subjected her to unwanted sexual advances. These advances commenced approximately two weeks after the Complainant started her employment with the Respondent and progressively developed to occur regularly.
2.3 The Complainant states that she is of the belief that her Manager would check the CCTV and establish that she was alone and would then make approaches on her.
2.4 The Complainant states that one of the first events occurred around the 30 November 2013 between 8pm and 9pm and she believes she worked late that night. The Complainant states her Manager said ‘you have no transport I will take you home’ and the Complainant accepted his lift home. The Complainant states that on the way her Manager said to her ‘be careful I don’t want anyone to see you in my car’ and as the car was going around a roundabout they saw a work colleague who worked with the Respondent also. The Complainant states her Manager said ‘I was planning to bring you home to stay the night but I think these girls saw us. I’d better bring you home…’ The Complainant states her Manager drove her home and passed by her home and she said ‘it’s here’ and he pulled up at the Playschool. Outside the playschool the Complainant her Manager suggested he buy her a drink and go to his house to which she replied no. The Complainant stated that her brother then phoned her and asked her to pick him up at the Garda Station at Carrick on Suir and the Complainant told her Manager she had to collect her brother. Her Manager drove to the Garda Station and on the way allegedly told the Complainant ‘now I can’t kiss you, I can’t say goodbye.’ The Complainant states that since that event she had been unhappy going to work and told her parents and boyfriend what had occurred.
2.5 The Complainant states on another occasion her Manager offered to drop her home and she told him she had arranged transport. The Complainant states her Manager told her ‘cancel it, I will drop you home’ to which she refused.
2.6 The Complainant states that her Manager told her that she got the job because she was so pretty.
2.7 The Complainant states that she told her Manager that she had a boyfriend in mid-December. The Complainant states that her Manager started acting differently after this. The Complainant states she was given more night work and she is of the belief that he wanted to get rid of her. The Complainant states that at the time she was working maximum hours, more than most of the other employees. She notes that she asked for the morning shifts and that her Manager would say ‘no put her on the evening shift’. The Complainant states that she believed this was done as her Manager did not want her to meet her boyfriend in the evenings. At the end of each shift employees are entitled to free food but the Complainant, for fear of her her Manager’s unwanted advance, would either eat her food in her car or at the back of the building where she knew there was a CCTV camera.
2.8 On at least 10 occasion during the on the month of December alone the Manager made unwanted advances of a sexual nature towards her. The Complainant felt intimidated and dominated by her Manager. The Complainant felt very uncomfortable around him and felt incapable of asserting herself in an appropriate manner throughout the period complained of.
2.9 On regular occasions, her Manager would follow her into the staff locker room when she left her post for a bathroom break and harass her. He would say things like ‘forget about your boyfriend’ and several times told the Complainant that she should leave her boyfriend, remarks that were uninvited and unwelcome. These advances were made when the Complainant was alone and out of sight of other employees.
2.10 The Complainant states that she was the only Slovakian in the workplace other than her Manager and that her English was not good. She states she was embarrassed by what was happening and she was only 18 years of age at the time. Her Manager was the Complainants most senior Manager on site and she had no contact from the head office or HR.
2.11 The Complainant states she got on well with all of her work colleagues. She states she was never given a written policy about bullying or grievance nor was she given a copy of the Company Handbook. The Complainant stated that she was not good at reading English either and that she did not receive any documents in Slovakian, her native language. Her contract of employment was provided in English only.
2.12 The Complainant is of the belief that she was dismissed as she was pregnant and because she rejected the advances of her Manager.
Unfair/ Discriminatory Dismissal on Grounds of Pregnancy
2.13 On the 9th January 2013 the Complainant states that she carried out a pregnancy test which was positive. She attended the Doctor on the 10th January 2014 at 10am. She telephoned the store on the 9th January 2014 to state she would not be in on time Friday as she had a medical appointment. The Complainant states that a female Manager took her call and said she would leave a message in the office. She was scheduled to work at 11am on Friday 10th January 2013. Friday 10th January 2014 the Complainant again telephoned and stated she was going to the Doctor. The Complainant was seen by her Doctor at 11.30am and did not have a note from the Doctor.
2.14 At 12.30 the Complainant went to work and met her Manager. The Complainant stated to her Manager that she was at the Doctors, did not have a note and that she was pregnant. The Complainant stated as per the company policy on absence from work a medical certificate is only required after 2 days of illness. The Complainant stated that her Manager asked her for a note from the Doctor and the Complainant stated she would get one.
2.15 The Complainant stated that she worked on Saturday 11th and Sunday 12th January 2014 and her Manager suggested she be suspended for a week and that he would be talking to his bosses in Limerick. The Complainant stated he said that the reason for the suspension was due to not having a note from the Doctor. The Complainant again stated she would bring the note on the Monday.
2.16 On Monday 13th January 2014 the Complainant attended the Doctors surgery and obtained two certificates from her Doctor. The Complainant drove to her place of work with her brother and handed her Manager the absence note. One certificate confirmed her attendance at the medical appointment of 10th January 2014 and one confirmed her pregnancy. The Complainant stated that when she handed over the certificates that her Manager gave the second certificate back [confirming her pregnancy] to her as he didn’t require it he said.
2.17 Later that same evening the Complainant states that her Manager called her stating she was sacked and to come in the following day if she wanted to know why she was sacked.
2.18 The Complainant stated she went to her workplace at 6pm on the 14th January 2014 to collect her shoes and personal items from her locker. She stated she went upstairs and sat at a table with her Manager. Her Manager referred to an incident which occurred in early January 2014 with a customer and a formal complaint. Her Manager had a printout of an order and asked the Complainant ‘do you remember this order?’ The Complainant stated that her Manager continued on to state that the customer did not receive her fish in her order. He stated that the customer complained to head office. The customer had not received her fish nor had been charged for it. The Complainant states that from her memory the customer had a number of children with her and it was a large order. There was a pizza, a mighty mac and after a while the customer complained and said ‘where is my fish?’ The Complainant replied to the customer and called out the order and stated there was no fish in the order. The customer then replied that it was ok and this was resolved at the time. The Complainant states this meeting with her Manager was the first time the issue had been brought to her attention and she was informed of a formal complaint regarding the order and confirmed her colleague processed the payment for this order for her.
2.19 The Complainant states she did not have any other disciplinary problems while she was in employment with the Respondent. The Complainant states there was a league table on the fridge, within the workplace, showing the person who had sold the most and taken the most order. The Complainant states she was very often at the top of this league table.
2.20 There was no formal process of complaint available to the Complainant she alleged. She was not aware of the company grievance procedure nor was she informed by her Manager that such a procedure existed and she was entitled to avail of it. She believed this limited her avenue of appeal, particularly in circumstances where the matters complained of concerned her direct line manager.
2.21 The Complainant claims that when her Manager confirmed her pregnancy that her dismissal occurred immediately after this.
2.22 The Complainant states that she has been discriminated in that she was unlawfully discriminated against by reason of her gender as a result of her Manager, an employee of the Respondent, who sexually harassed her.
2.23 The Complainant also states that an unfair discriminatory dismissal occurred against her reason of her gender as a result of the Complainant informing her Manager of her pregnancy.
3 Respondent’s Submission
3.1 The Respondent states that the Complainant was not dismissed because of her gender or family status but rather owing to her unsatisfactory performance during her probationary period.
3.2 The Respondent states the Complainant has not confirmed a prima facie case under the Employment Equality Acts as is required.
3.3 The Respondent states the Complainant has not identified any comparator in relation to whom she was less favourably treated. Furthermore the Respondent states that the Complainant has not submitted any supporting or corroborative evidence to her personal testimony / statement, parts of which are demonstrably false and clearly defamatory to her Manager.
3.4 The Respondent states that the Complainant sometimes showed a lack of friendliness and enthusiasm and the main issues of her dismissal refer to her poor attendance and two customer complaints and her inflexibility. It is stated that the Complainant worked for less than two month and was under probation when dismissed.
3.5 The Respondent presented several diary entries relating to the poor attendance of the employee and failure to notify the company.
3.6 On Sunday 15th December 2013 the Complainant was due to work from 1pm to 10pm. She never attended for work nor did she phone to say she would not be coming in as required.
3.7 On Wednesday 18th December 2013 her Manager spoke to the Complainant about not coming to work on the 15th December 2013 and not having phoned to inform the Company. It is stated that he told the Complainant that it was no good enough and that he had also raised issues he had with her service to customers and told her she must improve or he could not keep her in employment. It is stated his issues were with her lack of interest in her job, lack of interest in interacting with customers and general attitude to customers. The Complainant did provide a medical certificate stating she had a viral infection was uncertified fit for the 15th and 16th December 2013.
3.8 On Sunday 22nd December 2013 the Complainant rang in sick at 11.45am and was rostered to work from 1pm to 10pm. The Complainant spoke to a Manager on duty and this Manager told her to ring back and tell them when she would be fit to work again as Christmas time was busy and they needed to finalise the roster to get other people to cover her shifts.
3.9 On Monday 23rd December 2013 the Complainant did not attend for work nor did she phone in. She was rostered to work from 12pm to 10pm. When she did not attend for work a Manager called her mobile and spoke to a man, who is assumed to be a relative of the Complainant. The Manager asked the man to pass on information to the Complainant to have her call and let the Company know when she thought she would be back to work. It is stated the Complainant did not call back.
3.10 On Tuesday 24th December 2013 the Complainant did not attend for work nor did she phone in. A Supervisor called but got no answer from her phone.
3.11 On Friday 27th December 2013 the Complainant returned to work for her shift. She worked from 11am to 8pm and she gave her medical certificate to her Manager stating she has Gastroenteritis and was unable to work from the 22nd to 25th December 2013. Her Manager noted to her that he was surprised that she did not answer her phone when the shop tried to contact her and again told her he was not happy with this. It is stated he advised her she was still on probation and if there was any other issue he would let her go.
3.12 On Monday 30th December 2013 the Complainant was working from 1pm to 10pm approximately and during the course of that day the Complainant took an order for €55. The customer paid by credit card but this transaction did not go through. The Company received no payment. The Complainant did not notice and the customer walked out with €55 worth of food which the Company could not process payment for. The mistake was not noticed until the end of the night when the Manager was cashing up for the day. On the 31st December 2013 the Complainant was working from 1pm to 9pm and her Manager asked her about the transaction and the Complainant acted like she was unaware and did not really care too much about the incident either. Her Manager made it very clear to the Complainant that this was an issue and that he did not want to see any other mistakes like this and reminded her that things were not going well and she needed to improve.
3.13 On the 6th January 2013 the Complainant came to her Manager and said she could not work after 6pm anymore nor could she work on Sundays as she needed to study. Her Manager was unhappy with this as she was hired as a full time employee who was available for all shifts. This request reduced her availability. He asked her for something from the college to verify she was studying and he would consider this.
3.14 Her Manager was conscious that the Complainant was from Slovakia, like him, and did not want staff to feel she was getting special treatment because of this. The Respondent states her Manager deliberately spoke English to her during the working time.
3.15 The Respondent states there was never any complaints from customers or staff about her ability to speak and converse in English. In addition, her Manager noted that he found the Complainant spoke English perfectly well. Finally, the Respondent notes that the Complainant would not have been hired in the first place if she could not speak/converse in English the same as anyone else serving customers and from her application she stated that she had very good English.
3.16 On Friday 10th January 2014 the Complainant was late for work again and was due to start at 11am. She had advised the day before that she would be a little late as she had a Doctor’s appointment but she was over an hour and a half late arriving at 12.35pm. Her Manager asked her where she was and asked her to bring proof she was at the Doctors. It is stated that she had not brought any proof of her college requirements to study and asked her to bring this in also so he could consider her request.
3.17 On Saturday 11th January 2014 the Complainant was working from 12pm to 8pm and at the end of her shift her Manager asked her for proof from her Doctor and her college and the Complainant said she would bring them next week. Her Manager states that this was not good enough and that he could not put her on any rota any more. It is stated earlier that day her Manager received a customer complaint regarding a customer’s order the previous day. It is stated that on Friday 10th January 2014 the Complainant forgot half of a customer’s order which included pizza. It is stated the customer was very angry and said she had waited ages for pizza and when she enquired about it the Complainant realised she had never put it on for her. The customer was trying to keep 3 lively children under control and did not appreciate the extra 15 to 20 minute wait. It is stated that the customer was most annoyed with the attitude and lack of any apology from the Complainant. It is stated the her Manager said to the Complainant it was not working out and that the next day Sunday 12th January 2014 would be her last shift to work. It is stated this conversation was non-confrontational and she agreed that she did not really like the job. It is stated that they agreed that this work was not for her. On Sunday 12th January 2014 the Complainant worked her last shift.
3.18 On 13th January 2014 the Complainant called into the store. It is stated she wanted to let him have the papers she did not bring the previous Saturday. It is stated that at this point she informed her Manager of her pregnancy and this was the first time he was informed of this. It is stated that her Manager was busy sorting something else out in the shop and did not have time at this stage to talk to her but would chat to her again.
3.19 On the 14th January 2014 her Manager phoned the Complainant as he felt unhappy that he hadn’t had the time to talk to her when she called in on Monday 13th January 2014. He informed her that he was working the next day and if she wished to call into the shop. It is stated she called in later that same day and he had a chat with her for an hour.
3.20 It is stated that this meeting is recorded on CCTV and is the two of them present and alone two days after she was informed she was dismissed. This meeting was an hour in length. It is stated by the Respondent that this is hardly the position a female ex-employee would allow herself to volunteer for if, as she alleged, this was a meeting with a man who allegedly sexually harassed her and allegedly, as her claim stated subjected her to verbal and non-verbal conduct of a sexual nature, harassed and intimidated her and on a number of occasions approached her when alone in the shop to make suggestions of a sexual nature since she started work.
3.21 It is stated the Complainant never made a complaint to anyone in the Company. It is stated the first time the Respondent was aware of these allegations was in the Complainants Solicitors letter of the 24th January 2014.
3.22 The Complainant took her items from her locker and they allegedly spoke in relation to what she was going to do now and wished each other well. CCTV was submitted to confirm this conversation lasted some time and seemed very amicable.
3.23 It is stated that the Complainants P45 states her finish date as the 19th January 2014. This is as a result of her receiving the balance of her holiday pay in the week ending the 19th January 2014. It is stated she had no earnings that week. It is stated that it is clear from her rota and payslip that no work was done or expected to be done on Monday 13th January 2014.
3.24 The Respondent states that her Manager completely denies any wrongdoing either regarding her dismissal or the allegations of sexual harassment or gender related to pregnancy.
3.25 It is stated the Complainant signed the employee handbook and signed a declaration stating that she confirms she read and accepted the guidelines. It is noted that the handbook includes the grievance procedure.
3.26 L.H., the Assistant Manager, conformed there were no issues between the parties and that the Complainant raised no grievance with her.
4 Findings And Conclusions
4.1 In reaching my decision I have taken into account all of the submissions, oral and written, made to me in the course of the investigation as well as the evidence presented at the hearing.
4.2 Section 85 [A] of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies in a claim of discrimination.
85A.—(1) Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.
4.3 In deciding on this complaint, I must first consider whether the existence of a prima facie case has been established by the complainant. 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. The Complainant has presented evidence through her written and oral submissions which constitute a prima facie case and it is the opinion of this Adjudicator that the Complainant has established the burden of proof in regards to his complaint.
4.4 Harassment and Sexual Harassment
In line with Section 14 A[1] of the Employment Equality Act, 1998 as amended by the Equality Act, 2004 states that:
14A.—
(1) For the purposes of this Act, where—
(a) an employee (in this section referred to as ‘‘the victim’’) is harassed or sexually harassed either at a place where the employee is employed (in this section referred to as ‘‘the workplace’’) or otherwise in the course of his or her employment by a person who is—
(i) employed at that place or by the same employer,
(ii) the victim’s employer, or
(iii) a client, customer, or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it, or
(b) without prejudice to the generality of paragraph (a)—
(i) such harassment has occurred, and
(ii) either— (I) 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, or (II) it could reasonably be anticipated that he or she would be so treated, the harassment or sexual harassment constitutes discrimination by the victim’s employer in relation to the victim’s conditions of employment.
Section 14A (7)(a(ii) defines sexual harassment as:
(7) (a) In this section—
(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and
(ii) references to ‘‘sexual harassment’’ are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,
Section 14A (7)(b) expands on the definition and states:
Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material.
Whether conduct constitutes sexual harassment or not is dependent on how the conduct was regarded by the recipient. In this case, the Complainant has stated she found the behaviour inappropriate and unwelcome irrespective of the views of others. It is clear in the circumstances presented above by the Complainant that as an employee of the Respondent deemed herself being harassed by another employee of the Respondent who was her direct line manager at the time.
The Complainant stated that she was not good at reading English and that she did not receive any documents in Slovakian, her native language. Her contract of employment was provided in English only. There was no request from the employee for her contract of employment or other documents to be provided in another language during the course of her employment. I am of the opinion that she had sufficient English to secure a job and to work in a retail, fast food, customer focused environment. Therefore, I am taking into account that the Complainant did not raise a grievance under the Company policies that she has signed she reviewed and understood. The Company also gave her an opportunity to have her complaint addressed as soon as she notified them of the matter via her solicitor, however, she did not raise this grievance before her employment ended.
Furthermore the Complainant has not submitted any supporting or corroborative evidence to her personal testimony. The evidence presented is conflicting between the Complainant and the Respondent in particular regarding the occurrence of gestures and spoken words. The respondent presented CCTV evidence which showed the complainant and respondent conversing for nearly one hour which I would not expect based on her claim if it were well founded. It is my findings that the Complainant was not subject to harassment and sexual harassment under the acts as she has not presented a prima facia case.
4.5 Discrimination
The Complainant claims to have been dismissed as a direct result of informing her Manager that she was pregnant. This refers to Section 2(1) (a) and Section 6(2) (f) of the Unfair Dismissals Acts 1977 to 2007 and/or the discriminatory dismissal pursuant to the Employment Equality Acts, 1998 to 2008.
· On the 9th January 2013 the Complainant states that she carried out a pregnancy test which was positive. She attended the Doctor on the 10th January 2014 at 10am. She telephoned the store on the 9th January 2014 to state she would not be in on time Friday as she had a medical appointment. The Complainant states that a female Manager took her call and said she would leave a message in the office. She was scheduled to work at 11am on Friday 10th January 2013. Friday 10th January 2014 the Complainant again telephoned and stated she was going to the Doctor. The Complainant was seen by her Doctor at 11.30am and did not have a note from the Doctor. At 12.30 the Complainant went to work and met her Manager. The Complainant stated to her Manager that she was at the Doctors, did not have a note and that she was pregnant. The Complainant stated that this appears to have been ignored by her Manager. As per the company policy on absence from work a medical certificate is only required after 2 days of illness. The Complainant stated that her Manager asked her for a note from the Doctor and the Complainant stated she would get one. The Respondent states that on Friday 10th January 2014 the Complainant was late for work again and was due to start at 11am. She had advised the day before that she would be a little late as she had a Doctor’s appointment but she was over an hour and a half late arriving at 12.35pm. Her Manager asked her where she was and asked her to bring proof she was at the Doctors. It is stated that she had not brought any proof of her college requirements to study and asked her to bring this in also so he could consider her request.
· The Complainant stated that she worked on Saturday 11th and Sunday 12th January 2014 and her Manager suggested she be suspended for a week and that he would be talking to his bosses in Limerick. The Complainant stated he said that the reason for the suspension was due to not having a note from the Doctor. The Complainant again stated she would bring the note on the Monday. On Saturday 11th January 2014 the Complainant was working from 12pm to 8pm and at the end of her shift her Manager asked her for proof from her Doctor and her college and the Complainant said she would bring them next week. Her Manager states that this was not good enough and that he could not put her on any rota any more.
· On Monday 13th January 2014 the Complainant attended the Doctors surgery and obtained two certificates from her Doctor. The Complainant drove to her place of work with her brother and handed her Manager the absence note. One certificate confirmed her attendance at the medical appointment of 10th January 2014 and one confirmed her pregnancy. The Complainant stated that when she handed over the certificates that her Manager gave the second certificate back [confirming her pregnancy] to her as he didn’t require it. On 13th January 2014 the Complainant called into the store. It is stated she wanted to let him have the papers she did not bring the previous Saturday. It is stated that at this point she informed her Manager of her pregnancy and this was the first time he was informed of this. It is stated that her Manager was busy sorting something else out in the shop and did not have time at this stage to talk to her but would chat to her again. The Respondent states the certificate was not accepted as she was not an employee of the Company at that time.
· On Monday 13th January 2014, later that same evening the Complainant states that her Manager called her stating she was sacked and to come in the following day if she wanted to know why she was sacked. On Saturday 11th January 2014 it is stated the her Manager said to the Complainant it was not working out and that the next day Sunday 12th January 2014 would be her last shift to work. It is stated this conversation was non-confrontational and she agreed that she did not really like the job. It is stated that they agreed that this work was not for her. On Sunday 12th January 2014 the Complainant worked her last shift. On 13th January 2014 the Complainant called into the store. It is stated she wanted to let him have the papers she did not bring the previous Saturday. It is stated that at this point she informed her Manager of her pregnancy and this was the first time he was informed of this. It is stated that her Manager was busy sorting something else out in the shop and did not have time at this stage to talk to her but would chat to her again.
· The Complainant stated she went to her workplace at 6pm on Tuesday 14th January 2014 to collect her shoes and personal items from her locker. She stated she went upstairs and sat at a table with her Manager. On the 14th January 2014 her Manager phoned the Complainant as he felt unhappy that he hadn’t had the time to talk to her when she called in on Monday 13th January 2014. He informed her that he was working the next day and if she wished to call into the shop. It is stated she called in later that same day and he had a chat with her for an hour. It is stated she called in later that same day and he had a chat with her for an hour. It is stated that this meeting is recorded on CCV and is the two of them present and alone two days after she was informed she was dismissed. This meeting was an hour in length. It is stated by the Respondent that this is hardly the position a female ex-employee would allow herself to volunteer for if, as she alleged, this was a meeting with a man who allegedly sexually harassed her and allegedly, as her claim stated subjected her to verbal and non-verbal conduct of a sexual nature, harassed and intimidated her and on a number of occasions approached her when alone in the shop to make suggestions of a sexual nature since she started work.
· Her Manager referred to an incident which occurred in early January 2014 with a customer and a formal complaint. Her Manager had a printout of an order and asked the Complainant ‘do you remember this order?’ The Complainant stated that her Manager continued on to state that the customer did not receive her fish in her order. He stated that the customer complained to head office. The customer had not received her fish nor had been charged for it. The Complainant states that from her memory the customer had a number of children with her and it was a large order. There was a pizza, a mighty mac and after a while the customer complained and said ‘where is my fish?’ The Complainant replied to the customer and called out the order and stated there was no fish in the order. The customer then replied that it was ok and this was resolved at the time. The Complainant states this meeting with her Manager was the first time the issue had been brought to her attention and she was informed of a formal complaint regarding the order. The Complainant offered to pay the 55 back and informed her Manager that there was a problem with the card machine and another colleague had helped her do the transaction under her name. It is stated earlier of Saturday 11th January 2014 that day her Manager received a customer complaint regarding a customer’s order the previous day. It is stated that on Friday 10th January 2014 the Complainant forgot half of a customer’s order which included pizza. It is stated the customer was very angry and said she had waited ages for pizza and when she enquired about it the Complainant realised she had never put it on for her. The customer was trying to keep 3 lively children under control and did not appreciate the extra 15 to 20 minute wait. It is stated that the customer was most annoyed with the attitude and lack of any apology from the Complainant.
· The Complainant states she did not have any other disciplinary problems while she was in employment with the Respondent. The Complainant states there was a league table on the fridge, within the workplace, showing the person who had sold the most and taken the most order. The Complainant states she was very often at the top of this league table.The Respondent states that the Complainant sometimes showed a lack of friendliness and enthusiasm and the main issues of her dismissal refer to her poor attendance and two customer complaints and her inflexibility. It is stated that the Complainant worked for less than two month and was under probation when dismissed. The Respondent presented several diary entries relating to the poor attendance of the employee and failure to notify the company. On Sunday 15th December 2013 the Complainant was due to work and never attended for work nor did she phone. On Wednesday 18th December 2013 her Manager spoke to the Complainant about not coming to work on the 15th December 2013 and not having phoned to inform the Company. It is stated that he told the Complainant that it was no good enough and that he had also raised issues he had with her service to customers and told her she must improve or he could not keep her in employment. The Complainant did provide a medical certificate stating she had a viral infection was uncertified fit for the 15th and 16th December 2013. On Sunday 22nd December 2013 the Complainant rang in sick at 11.45am. The Complainant spoke to a Manager on duty and this Manager told her to ring back and tell them when she would be fit to work again as Christmas time was busy and they needed to finalise the roster to get other people to cover her shifts. On Monday 23rd December 2013 the Complainant did not attend for work nor did she phone in. When she did not attend for work a Manager called her mobile and spoke to a man, who is assumed to be a relative of the Complainant. The Manager asked the man to pass on information to the Complainant to have her call and let the Company know when she thought she would be back to work. It is stated the Complainant did not call back. On Tuesday 24th December 2013 the Complainant did not attend for work nor did she phone in. A Manager called but got no answer from her phone. On Friday 27th December 2013 the Complainant returned to work for her shift. She worked from 11am to 8pm and she gave her medical certificate to her Manager stating she has Gastroenteritis and was unable to work from the 22nd to 25th December 2013. Her Manager noted to her that he was surprised that she did not answer her phone when the shop tried to contact her and again told her he was not happy with this. It is stated he advised her she was still on probation and if there was any other issue he would let her go.
· There was no formal process of complaint available to the Complainant. She was not aware of the company grievance procedure nor was she informed by her Manager that such a procedure existed and she was entitled to avail of it. She believed this limited her avenue of appeal, particularly in circumstances where the matters complained of concerned her direct line manager.The Respondent denies this. It is stated the Complainant never made a complaint to anyone in authority. It is stated the first time the Respondent was aware of these allegations was in the Complainants Solicitors letter of the 24th January 2014. It is stated the Complainant signed the employee handbook and signed a declaration stating that she confirms she read and accepted the guidelines. It is noted that the handbook includes the grievance procedure.
· The Complainant claims that when her Manager heard of her pregnancy that her dismissal occurred almost immediately after this. The Respondent denies this and states it was as per the probation clause. The Respondent states the Complainant has not disclosed a prima facie case under the Employment Equality Acts as is required. It is stated that the Complainants P45 states her finish date as the 19th January 2014. This is as a result of her receiving the balance of her holiday pay in the week ending the 19th January 2014. It is stated she had no earnings that week. It is stated that it is clear from her rota and payslip that no work was done or expected to be done on Monday 13th January 2014. The Respondent states that her Manager completely denies any wrongdoing either regarding her dismissal or the allegations of sexual harassment / misconduct. It is stated her Manager was well aware of her nationality and behaved no differently to her than anyone else.
· The Complainant also states that an unfair/discriminatory dismissal occurred specifically that the Complaint was unfairly dismissed and unlawfully discriminated against by reason of her gender as a result of the Complainant informing her Manager of her pregnancy.The Respondent denies this and states it was as per the probation clause. The Respondent states that the Complainant was not dismissed because of her gender or family status but rather owing to her unsatisfactory performance during her probationary period. The Respondent states the Complainant has not disclosed a prima facie case under the Employment Equality Acts as is required.
· The Complainant states she got on well with all of her work colleagues. She states she was never given a written policy about bullying or grievance nor was she given a copy of the Company Handbook. The Complainant stated that she was not good at reading English either and that she did not receive any documents in Slovakian, her native language. Her contract of employment was provided in English only. The Respondent states that the Complainant signed the employee handbook and signed a declaration stating that she confirms she read and accepted the guidelines. It is noted that the handbook includes the grievance procedure. In addition the Respondent states that her Manager’s opinion is that theComplainant was good at reading English. The Respondent states this is not true and that the Complainants English was good as she was hired as a service representative. In addition her CV also stated her English level was good.
4.6 In regards to evidence I have been supplied with a contract. The Complainant stated that she was not good at reading English and that she did not receive any documents in Slovakian, her native language. Her contract of employment was provided in English only. There was no request from the employee for her contract of employment or other documents to be provided in another language during the course of her employment. I am of the opinion that she had sufficient English to secure a job and to work in a retail, fast food, customer focused environment.
4.7 I have been supplied a P45 and notes from a store diary which details the Complainants absences and conversations regarding her probation. During the hearing when asked to review the diary in full there were no other inserts in any other page other than those reverting to the Complainant in December 2013. It is my opinion as an Adjudicator, I question the validity of these entries.
4.8 The Complainant has referred to Assico Assembly Limited v Corcoran where it states ‘Where the employee is dismissed while pregnant or on maternity leave both legislation and case law states that the employer must show that the dismissal was on exceptional grounds not associated with her pregnancy and such grounds it he case of dismissal, as a matter of law and in the case of discrimination as a matter of good practise, should be set out in writing.’ I am in agreement with this case law. I have not been provided any evidence which supports the Respondents claim that the Complainant’s employment was terminated on the basis of probation. This process, was not documented. There is a clause within the contract, page 1, which notifies the Complainant of the probation period. However, at the minimum there should be a paper trail showing where the employee was made aware of the performance issues and give an opportunity to improve or confirm she had failed her probation and then if no improvement occurred a termination letter should have been provided to the Complainant stating the reason for her dismissal. The Respondent has failed to provide any substantial evidence showing that the Complainant was informed of the areas she needed to improve upon, offer support, offer retraining or gave her a set timeline in which to improve or her job would be at risk. However, I do believe the evidence that there were performance issues evident during her probation.
4.9 The Respondent has not provided evidence to substantiate their claims that her Manager repeatedly told the Complainant should her performance fail to improve that she was at risk of losing her job, despite claims within their submission and at the hearing that this was done.
4.10 The Respondent did not provide the Complainant with duly substantiated reasons for her dismissal in writing. The Complainant states that the termination of employment coming so soon after the Complainant informed her Manager of her pregnancy speaks for itself. The Complainant states that a conclusion of unfair dismissal and/or discriminatory dismissal can reasonably be inferred.
4.11 It is this Adjudicators conclusion that this complaint is upheld and that a discriminatory dismissal occurred.
4.12 I have considered that the Respondent stated the Complainant was told of her dismissal in the hallway which is wholly inappropriate. I confirm that date of dismissal as the 11th January 2014.
5 Conclusion/Decision
5.1 Section 85 [A] of the Employment Equality Acts 1998 and 2004 sets out the burden of proof which applies in a claim of discrimination. In accordance with the above mentioned legislation I conclude and issue the following decision that the Complainant has established a prima facie case.
5.2 I have considered the following to confirm if this claim meets the requirements of this Acts:
· The Complainant must establish that she is covered by the relevant discriminatory ground. I can confirm the Complainant has established that she is covered by the relevant discriminatory ground which is gender based on her pregnancy related dismissal.
· The Complainant must establish that the specific treatment alleged has actually occurred. I can confirm that the Complainant has established that the specific treatment alleged has actually occurred.
5.3 I find that the Complainant was dismissed in a discriminatory manner.
5.4 I find that the Respondent has not been subject to harassment and sexual harassment contrary to Section 14A(1) and 14A(7) of the Employment Equality Acts.
5.5 I am satisfied that the appropriate form of redress is an award of compensation. In measuring the quantum of compensation which is fair and equitable I order the Respondent to pay the Complainant a total of €7,000.00 in compensation. This figure represents compensation for infringement of his rights under the Acts and is not taxable.
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Caroline McEnery
Adjudication Officer/Equality Officer