DEC-E2016-136

EMPLOYMENT EQUALITY ACTS 1998-2015

DECISION NO. DEC-E2016-136

PARTIES

An Employee

(Represented by Brendan Savage BL, instructed by Ennis & Associates Solicitors)

v

An Employer

(Represented by IBEC)

File reference: et-149676-ee-14

Date of issue: 28 September 2016

1. CLAIM

This dispute involves a claim by the complainant that she was (i) sexually harassed in the course of her employment (ii) discriminated against by the respondent in respect of her race in relation to her working conditions as she alleges she was not provided with documentation in a language she could understand and (iii) victimised by the respondent in relation to her dismissal from the company as a result of making a complaint about her treatment.

2.1 The complainant referred a complaint under the Employment Equality Acts to the Director of the Equality Tribunal on 14 October 2014. In accordance with his powers under the Acts the Director General of the Workplace Relations Commission delegated the complaint to me - Valerie Murtagh, an Adjudication Officer/Equality Officer on 2 December 2015, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Employment Equality Acts. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 18 April, 2016. Final documentation relating to the case was received on 8 August, 2016. This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.

3. SUMMARY OF COMPLAINANT’S CASE

3.1 The complainant, who is a Latvian national, commenced employment with the respondent as a cleaner on a part-time basis on 24 March 2014. The complainant states that she was employed to clean the premises at the head office of Location A. She states that she worked circa 6.5 hours 5 days a week at a rate of €9.50 per hour. She submits that when she initially took up the job offer, she was advised that while there was not a permanent position available at that time, such a position may become available at a later date. The complainant states that in the course of her employment on the morning of 29 April, 2014 another employee of the respondent E who the complainant says she knew as she shared a house with him and it was he who encouraged her to apply for the job approached the complainant and said that the supervisor G had advised that a full-time position was available and told her to take it up and cancel her holiday plans. The complainant states that she was told that an immediate answer was needed. The complainant explained that she had holidays booked to go home to Latvia and that she would not be in a position to take up full-time work until after her holidays. The complainant states that while she was cleaning the ladies toilets, E tried to convince her to cancel her holiday plans and take up the full-time position. When she moved into the men’s toilets to clean same, E followed her in. The complainant states that E continued to pressure her until she began crying. He offered her some water but she requested to be left alone. The complainant states that he then proceeded to unzip his trousers and then placed a door stopper in his trousers and made a sexual comment towards her stating that his head felt sorry for her but his lower half thought she looked sexy when she cried. The complainant states that she was extremely upset and disturbed but managed to send E away.

3.2 The complainant states that the next day she approached her supervisor G and indicated to her that she would shorten her holidays for the purposes of taking up the full-time position. The complainant submits that G was very pleased and indicated that she was delighted that complainant would take up the full-time position. The complainant then reported the incident that occurred with E the previous day. G told the complainant she would speak to E regarding same. The complainant contends that G asked her if she wished to report it but the complainant states that at the time, she was extremely scared and anxious and indicated that she did not know. The complainant stated that G got back to the complainant throughout the day and advised her that if E approached her again to inform her. The complainant submits that she also told G that E had told her he found the complainant very sexual. The complainant submits that later that day, G advised her that there was no longer any work available for her and there was no need to finish out her shift. The complainant also states that G took her entry pass and she was advised to proceed to head office. The complainant states that she attended at head office but the receptionist knew nothing about her being sent there and sent her home. The complainant contends that following on from her summary dismissal, she tried on 5/6 occasions to obtain her P45 by attending at the respondent’s head office without success. The complainant states that on 7 May 2014, she received a text message from the respondent in error requesting her to confirm that she no longer wanted to do summer work because she had plans to take long holidays. The complainant states that she did not reply to the text because it was simply untrue but instead she attended head office that day. The complainant met with W, the HR manager. The complainant’s friend also attended as the complainant states that she does not have a good level of English and the friend was required to act as an interpreter. The HR manager informed the complainant that she was still on the books and could not understand why she would not continue to work. The complainant states that she informed her of the incident that occurred with E. The HR manager asked her if she wanted to report it and the complainant replied that she did. The complainant states that she was given a copy of the disciplinary process and grievance procedure in English and informed that the HR manager would investigate the matter and revert to her. The complainant states that she reiterated her language difficulties and that there would be need for her to contact her friend. She states that no policy on sexual harassment was provided to her.

3.3 The complainant submits that despite the HR manager’s assurance that she would investigate the matter, she received no contact from her. The complainant states that by letter dated 4 June 2014 sent by registered post, she wrote to the HR manager about the matter. The complainant subsequently attended with her GP and was certified sick on the basis of “stress at work”. The complainant attended with her GP on ten occasions as well as seeking specialist help in Latvia. On 24 June, 2014 the complainant received a letter from the respondent noting that the complainant had been certified absent and that they had suspended the grievance process until she was deemed fit to return to work. On 29 July, the complainant again attended the offices of the respondent delivering a medical certificate indicating she was fit to return to work and was available to return to work. By letter dated 31 July 2014, the complainant’s solicitors wrote to the respondent calling upon it to reinstate the complainant, to confirm that she would not be required to work with the employee who subjected her to sexual harassment and that her complaint would be properly investigated. This was replied to by an undated letter from the respondent received by the complainant in August 2014. The complainant maintains that in this letter the respondent made reference to a letter dated 24 June and spurious claims made by her and concluded by stating that once the complainant was fit to return to work, an investigation would commence into her grievance. The complainant contends that despite the fact that she was fit to return to work from 29 July, the respondent has never since contacted her or commenced an investigation into the sexual harassment complaint. The complainant states that as a consequence of this, it is clear that the respondent had in fact dismissed her on 30 April because of her complaint about the incident on 29 April 2014. The complainant also maintains that she was discriminated against on grounds or race in relation to the non-provision of documentation in a language she could understand.

3.4 The complainant has cited the following case law to support her claim regarding sexual harassment; An Office Worker v A Security Company DEC-E-2010-002, An Employee v A Call Centre, EE 2010-832 and Ms. A v A Retail Chain, EE 2010/110. In relation to the issue of the duty of an employer to investigate the complaint of sexual harassment, the complainant cites the Labour Court cases of An Employer v A Worker EDA 0916 and A Boys’ Secondary School v A Female Teacher of Religions EED022. In relation to the claim of discrimination on the race ground, the complainant highlights the cases regarding A complainant v The Health Board DEC-E2004-010, Ahmad v Amnesty International [2009] I.R.L.R 884 andComplainants v Goode Concrete Ltd DEC-2008-020. With regard to the claim of victimisation/ victimisatory dismissal, the complainant cites case law from the Labour Court case in Department of Defence v Barrett EDA1019, A Female Teacher v A Board of Management of a Secondary School DEC-E2012-103 andAn Employee v A Broadcasting Company EE 2011-195.

4. SUMMARY OF RESPONDENT’S CASE

4.1 The respondent states thatthe complainant was employed on a ‘0’ hours contract as a cleaner. It states that the type of work the complainant was hired and agreed to do was cover work for when the respondent needed additional cover for periods of annual leave or unexpected leave. The respondent held a cleaning contract with Employer A to clean its premises on an ongoing basis. The complainant commenced employment with the respondent on 24 March 2014. The respondent states that the complainant was not offered a permanent contract at any point as the respondent only required a cover contract. The respondent states at the time in question, no full-time employees were contracted into Employer A’s site for over a two year period. The respondent contends that the employment relationship was one of covering work when shortfalls in availability of staff occurred. It categorically states that the complainant was not offered a permanent role. The respondent submits that the complainant shared a house with E who was employed by the respondent as a cleaner. E informed the respondent that the complainant was seeking employment and would be perfect for the role. The respondent claims that E assisted the complainant in doing up her CV and she went to meet G for an interview. The respondent states that after a few weeks in the job, the complainant stated to her supervisor that she had booked a 6 week holiday and would need time off. The complainant had not informed her supervisor of this during her interview for the position. The respondent states that the request was not feasible as her work was that of a covering role and if she was to head off for 6 weeks holidays, she was not in a position to cover the very essence of her contract. The supervisor G rejected her request.

4.2 The respondent maintains on that same day 29 April 2014 that as a result of the rejection of the complainant’s holiday request, she stated to E that she was going to quit the job. The respondent contends that E was distressed as he had introduced her to the respondent and felt that if she did walk out on the job that this may impact negatively on him. The respondent maintains that E went to talk to the complainant who was distressed following the holiday request refusal. E saw a yellow cleaning sign outside one of the toilets the complainant was cleaning and entered. As he entered, he saw the complainant was crying. Both of them started talking and E tried to convince the complainant not to quit and see out the week and not leave the respondent in the lurch. E left the toilets and went to get the complainant some tissues and a drink of water. She accepted both from E and he tried to cheer her up. E refutes in the strongest of terms that he sexually harassed the complainant and denies that he unzipped his trousers and made sexual comments to the complainant. The respondent states that E and the complainant went home together on the bus that evening and both arrived the following morning after getting the bus. E was totally unaware that the complainant had made an allegation against him, in this regard, on the morning of 30 April 2014 the day after the alleged incident, the complainant approached G making an allegation of sexual harassment about E. G asked the complainant if she wanted to make a formal complaint on the matter to which complainant replied she did not know. The respondent contends that the complainant submitted a sick certificate to the respondent detailing workplace stress and went on sick leave. The respondent met with E to discuss the allegations and E completely refuted same. On 7 May, the complainant and her friend met with Ms. W of Human Resources. Ms. W gave the complainant a copy of the grievance and disciplinary procedures. The complainant wrote to the respondent on 4 June 2014 stating that she had not heard anything from the employer since she went out on sick leave. The respondent states that it wrote to the complainant on 24 June 2014 outlining that it had suspended the grievance process until she was deemed fit to return to work by her doctor and to engage in the process. At that juncture, the complainant was still submitting sick certificates to the respondent.

4.3 The respondent submits that it received a letter from the complainant’s solicitor on 31 July 2014 stating that the respondent had failed to carry out an investigation into the matter and seeking the complainant’s re-instatement. The respondent replied advising that it was unable to investigate the matter as the complainant remained on sick leave since the time of the allegation. In this regard, the respondent had written to the complainant on 24 June 2014 stating same to which it received no response. The letter again reiterated that the complainant was on a ‘0’ hours contract and was hired specifically to carry out cover for the Summer period. The complainant had confirmed to the respondent that she was unable to carry out the relief hours as she had requested leave for a period of about one month. The respondent detailed in its response that it had previously advised when she was available to work to let them know so that should relief work arise, the company may be in a position to offer this work to her. The respondent states that the complainant specifically requested she be dismissed so that she could claim social welfare entitlements which the respondent refused to do. The respondent states that it again reiterated that once the complainant was fit to return to work or indeed fit to attend a meeting with the company, an investigation would commence to progress the matter to a conclusion.

4.4 The respondent states that while the complainant contends she was dismissed from her employment immediately following her grievance being raised, it is illogical for her to put forward the argument that she had been dismissed in April 2014 yet she continued to submit sick certificates to the respondent for a further four months. The respondent submits that in the instant case, the complainant cannot under any circumstances argue she had been dismissed yet she consciously continued to attend her doctor and submit sick certificates. The respondent states that it is clear that the complainant knew she had not been dismissed. The respondent also states that social welfare forms were also forwarded to respondent to complete which it duly did and yet another argument to back up the respondent’s assertion that the complainant knew she had not been dismissed. The respondent submits that it wrote to the complainant on 18 August 2014 as a result of the complainant now being in a position to attend a meeting following her doctor’s certification. The complainant’s solicitor responded on 8 September and the respondent duly replied on 11 September 2014. The respondent states that it sought clarification if the complainant wished to proceed with her grievance and if so it would schedule a meeting with her. The complainant’s solicitor had stated in a letter that she was unable to attend a meeting between 18 September and 1 October due to annual leave arrangements. As a result the respondent informed the complainant that a meeting was being scheduled for 2 October 2014. The respondent submits that the complainant failed to attend the meeting or notify it of any difficulties in attending. The respondent states that it heard nothing more from the complainant until receipt of her complaint under the Employment Equality Acts.

4.5 In summary, the respondent argues that due to it denying the complainant’s request to take circa one month’s leave for a holiday (while only recently having commenced employment) which she had already booked; the complainant was aggrieved by same and so manufactured the sexual harassment complaint against the respondent. The respondent states that it is remarkable that the complainant went out on sick leave yet her representative states she was in fact dismissed. It also submits that despite alleging that the respondent dismissed her, the complainant submitted sick certificates for over four months thereafter. The respondent states that it was willing to engage with her and arranged a meeting for 2 October 2014 to process her grievance but the complainant never attended or made any contact with the respondent whatsoever. The respondent denies the allegation of discrimination and submits that the complainant has adduced no evidence to establish a prima facie case of discriminatory treatment on the grounds of race and/or gender. The respondent refutes the allegation of victimisatory dismissal and submits that no evidence has been adduced by the complainant to substantiate such a complaint.

5. CONCLUSIONS OF EQUALITY OFFICER

Conditions of Employment

5.5 The issues for decision are whether or not the complainant (i) was subjected to sexual harassment in the course of her employment with the respondent (ii) was discriminated against on grounds of race in her conditions of employment and (iii) whether her dismissal was in reaction to the complainant making a complaint about sexual harassment. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court elaborated on the interpretation of section 85A in Melbury v. Valpeters EDA/0917 where it stated that 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".

5.6 Section 14A of the Acts defines sexual harassment as 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 persons’ 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.” Section 14A (2) of the Acts gives an employer a defence against harassment/sexual harassment if it can prove that it took such reasonable steps as are practicable to prevent the harassment or to reverse its effects where it has taken place.

5.7 I must firstly consider on the balance of probabilities whether the complainant has established that she was sexually harassed. The complainant referred to an alleged incident which occurred on 29 April 2014 which she claims to have found offensive and humiliating. She states that on the following day she reported the issue to her supervisor. I note that on taking evidence from the alleged perpetrator, he refutes the allegation of sexual harassment and states that he was trying to calm the complainant down as she was hysterical and he got her a glass of water and some tissues. He states that he advised her to pull herself together and not to quit the job and leave the employer in the lurch as he felt a certain onus as he got her the job. I note that on the evening in question the complainant and E took the bus home together and also accompanied each other in to work on the bus the following morning. It was also stated at the hearing that they lived in the same accommodation for up to one year after the incident. Having taken testimony from both individuals, on balance, I prefer the testimony of E regarding this incident. I also note the demeanour of both on the day of hearing and I find the evidence of E more compelling and convincing. I am of the view that the complainant’s holiday request was refused and she, being very upset over same, threatened to quit the job but E feeling a sense of duty to the employer and having assisted the complainant in getting the job tried to get the complainant change her mind. The complainant states that on the following day she reported the matter to G but did state on the day of the hearing she was unsure as to whether to make a formal complaint about same. She states the employer dismissed her on this day. However, she continued to send in sick certificates for a four month period thereafter and social welfare forms for the respondent to complete.

5.8 I note from the documentation submitted to the Commission that each employee receives a starter pack on commencement with the respondent. This pack includes the employee handbook, grievance and disciplinary procedure, dignity at work and wellbeing booklet. These booklets are quite comprehensive in nature. The respondent submitted a copy of a form signed by the complainant stating that she understood said documents. In said form, I note that her position is referred to as casual worker and temporary cover only. At the hearing the complainant maintained that she did not have access to said documentation. However, I find that assertion lacking in credibility given the documentary evidence submitted by the respondent. I also note on the day of the hearing when the complainant was giving her testimony, she did have a good level of English comprehension. Overall, I find that the complainant has not established a prima facie case of discriminatory treatment in her conditions of employment on race grounds with regard to this matter.

5.9 Having carefully examined all the evidence adduced in relation to this complaint, I note that when the complainant spoke to G about the alleged incident on 29 April, G subsequently spoke to E regarding the matter and he refuted the allegation in the strongest of terms. G also advised E to not go near the complainant. G asked the complainant if she wanted to lodge a formal complaint but the complainant said she was unsure and did not know. Ms. W, HR manager met with the complainant and her friend on 7 May and the complainant was given a copy of the grievance and disciplinary procedure. Ms. W states that as the complainant was submitting sick certificates from her doctor at this juncture stating she was unfit for work and to engage and the grievance procedure was suspending pending her doctor certifying her fit to engage with the respondent. Having adduced the totality of the evidence on this matter, I am satisfied that the complainant has not demonstrated evidence that she sexually harassed in the course of her employment nor has she established a prima facie case of discrimination on grounds of her race in her conditions of employment.

Victimisatory Dismissal

5.10 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 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.”

Having adduced the totality of the evidence on this matter and considering the complete divergence and conflict regarding the evidence from the complainant and that of the respondent; I find the evidence of the respondent more cogent and convincing. Although the complainant stated she was dismissed she continued to send in sick certificates for a four month period thereafter. She also sent the employer the social welfare forms to complete. The respondent had stated that given the complainant was certified sick and unfit for work, it issued a letter to state that when she was fit to engage, it would carry out an investigation into the complaint. I am of the view that this is reasonable in the circumstances. When the complainant was certified fit by her doctor, the respondent wrote to her seeking clarification if she wished to proceed with her grievance and if so, it would schedule a meeting with her. The complainant’s solicitor had stated in a letter that she was unable to attend a meeting between 18 September and 1 October due to holiday arrangements. As a result the respondent informed the complainant that a meeting was being scheduled for 2 October 2014. While the complainant states she never received said letter, I take on board the bona fides of the respondent on this matter and while it would have been preferable if the letter had been sent by registered post as well as the ordinary post, in the instant case I am satisfied this letter was issued to the complainant. The complainant failed to attend the meeting on 2 October 2014 or notify it of any difficulties in attending. Having carefully examined all the evidence on this matter, the complainant’s case does not stack up for me and there are too many inconsistencies in her evidence. Accordingly from the totality of the evidence adduced on this matter, I am satisfied that the complainant was not subjected to a victimisatory dismissal in this case.

6. DECISION OF THE EQUALITY OFFICER

6.1 Having investigated the above complaint, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts, I find that:

(i) the complainant has failed to establish facts constituting sexual harassment in the course of her employment within the meaning of Section 14A of the Acts.

(ii) the complainant has failed to establish a prima facie case of discrimination on race grounds in her conditions of employment.

(iii) the complainant was not subjected to a victimisatory dismissal by the respondent.

Therefore, the complainant’s case fails.

_____________________

Valerie Murtagh

Adjudication Officer/Equality Officer

28 September, 2016