ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001718

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 09/05/2016

Workplace Relations Commission Adjudication Officer: Ray Flaherty

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998 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.

The Respondent did not attend the Hearing.

Complainant’s Submission and Presentation:

In addition to the detail provided in her complaint form, the Complainant submitted significant additional, supporting evidence, both oral and documentary, at the Hearing.

The Complainant stated that she was first subjected to sexual harassment by Mr A from, in or about, May 2014, by which time she had been working for the Respondent for a little over two years.

According to the Complainant's evidence the harassment took the form of unwelcome sexualised comments, repeated unwelcome sexualised propositioning, sexual assault (in the form of smacking her bottom, feeling her breasts and poking her, squeezing her and gyrating against her bottom and otherwise manhandling her), sending unwelcome sexualised and offensive texts, including propositions and lewd pornographic imagery, most of which was outside of working hours.

The Complainant stated that this behaviour took place despite having made it clear that she had no interest in engaging in a relationship or sexual conduct with Mr A and/or having rejecting his unwanted advances.

The Complainant provided detailed and comprehensive examples of the unwanted sexual harassment as set out above. The examples provided included six dated and detailed accounts of specific incidents/events which she found offensive. In addition, the Complainant presented detail of other incidents, for which she was not in a position to provide precise dates.

The Hearing was also provided with the series of screenshots of highly sexualised text messages covering a period from 4 March 2015 to 26 July 2015. These text messages involved exchanges between the Complainant and Mr A. The screenshots included some particularly lewd and offensive pornographic images. In one particular instance the image was accessed through a link which was contained in a seemingly innocuous text message about the sale of a motor vehicle.

In concluding submission on behalf of the Complainant, her legal representative contended that Mr A, who was described as a significant and successful businessman, is a very domineering and intimidating character. It was further contended on the Complainant's behalf that in smaller employments where the harasser is the employee’s boss or manager it may not be practical to avail of the grievance/anti harassment policy/procedures.

It was further contended on behalf of the Complainant that Mr A's conduct meets the statutory definition of sexual harassment and bears a striking and unsettling similarity to conduct that has consistently and universally been impugned by the Equality Tribunal, the Labour Court and the ordinary courts.

It was also stated that there have been frequent and repeated unwanted physical contact in the form of sexualised assaults and highly sexualised/pornographic texting and imaging. It is further contended that the Complainant found the behaviours to be intimidating, grossly demeaning and unpleasant. It was stated that her attempt to repel Mr A's persistent sexual advances were laughed off and ultimately ignored.

It was further submitted on the Complainant's behalf that while she is nominally an employee of the Respondent, she cannot see herself being in a position to return to employment with that company and in such circumstances is likely to suffer the effective loss of her employment as a consequence of Mr A's appalling behaviour.

Respondent’s Submission and Presentation:

The Respondent did not attend the Hearing or provide a response/evidence in any other format.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.

Issues for Decision:

The issue for decision was whether or not the Complainant was subjected to sexual harassment in the manner alleged.

Legislation involved and requirements of legislation:

The relevant legislation in this case is the Employment Equality Act, 1998 – 2015.

Decision:

The Complainant had originally submitted three separate complaints, pertaining to the same set of allegations, against three different Respondents. Having carefully considered the evidence presented by the Complainant, I believe that the Respondents, nominated under this particular complaint reference (ADJ 1718), are the Complainant's employers for the purpose of the hearing of the complaint. Consequently the substantive case and supporting evidence was taken in regard to this Respondent.

The Complainant claims that she was subjected to sexual harassment in line with the provisions of Section 14 A (7) (a) of the Acts which defines sexual harassment as:

"Any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person"

Section (b) further 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."

Section 85A of the Acts sets out the burden of proof which applies to claims of discrimination. It requires the Complainant to establish, in the first instance, facts from which discrimination may be inferred.

The evidence presented by and on behalf of the Complainant leaves little room for doubt that she was subjected to the most offensive and degrading behaviour from, based on the evidence submitted, the most senior person in the Respondent's organisational structure. It is also abundantly clear from the evidence presented that this behaviour was both unwanted, unwelcome and created a most intimidating and hostile work environment for the Complainant. This was particularly so given the harasser’s position in the business. This clearly created a most difficult and unenviable position for the Complainant.

Consequently, I am satisfied, on the basis of the evidence presented, that the Complainant has established strong and powerful case from which the acts of discrimination can be readily inferred.

As a result of the above finding, the burden of proof shifts to the Respondent to rebut the inference of discrimination as raised by the Complainant. However, as the Respondent failed to attend the Hearing or provide any response, the required rebuttal did not materialise.

On the basis of the strong evidence presented by and on behalf of the Complainant and in the absence of any evidence from the Respondent, I find that the Complainant has been discriminated against in the form of sexual harassment of the most offensive and flagrant nature.

Consequently, based on the above finding I hereby order, that the Respondent pay the Complainant the sum of €40,000 in compensation for the effects of the discrimination. This figure represents compensation for infringement of her rights under the employment equality legislation in relation to discrimination and does not include any element relating to remuneration.

Dated:   1^st September 2016