FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : MITIE FACILITIES MANAGEMENT LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - DAIGA SPRANCE (REPRESENTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Adjudication Officer Decision No: DEC-E2016-136 et-149676-ee-14
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 2nd November 2016. A Labour Court hearing took place on the 24th May 2017. The following is then Court's Determination:
DETERMINATION:
This is an appeal by Ms Daiga Sprance (the Complainant/Appellant) against a decision of an adjudication officer ref number DEC-E-2016-136 issued on 28 September 2016 in which she decided that complaints madeby the complainant that she was (i) allegedly sexually harassed in the course of her employment; (ii) allegedly discriminated against by Mitie Facilities Management Ltd, the Respondent, in respect of her race in relation to her working conditions; and (iii) allegedly victimised by the respondent in relation to her dismissal from the company as a result of making a complaint about her treatment, were not well-founded.
The Complainant filed her appeal with the Labour Court on 2 November 2016. The case came on for hearing before the Court on 24 May 2017.
The Respondent operates a facilities services company. It employed the Complainant on a zero hours contract of employment to provide cover for permanent staff who were absent from work on annual leave, sick leave or otherwise. The Complainant was assigned to work in the premises of a client. While at work an alleged incident occurred that she claims amounted to harassment in the nature of sexual harassment by another employee. She complains that she reported the alleged incident to her manager and she claims that as a consequence she was dismissed from her employment which amounts to discriminatory dismissal within the meaning of the Act.
In the appeal forms submitted to the Court the Complainant confines her appeal to the complaints of sexual harassment and discriminatory dismissal.
Complaint of Sexual Harassment:
In her written submissions to the Court the Complainant states that she was harassed by a fellow employee and that she reported the incident to her employer through one of her managers. She submits that the respondent then failed to conduct an investigation or otherwise deal with her complaint.
The Respondent in evidence told the Court that the Complainant was asked at a meeting on 7 May 2014 if she wished to make a formal complaint regarding the alleged incident to which she replied "no". At that meeting the Complainant, whose first language is not English, was accompanied by a friend who provided her with translation services. Immediately after that meeting the Complainant went on sick leave and did not return to work thereafter. She did however submit medical certificates until end July 2014 and social welfare forms until August 2014.
The Respondent in evidence further stated that it wrote to the Complainant on June 24, August 18, August 25 and 11 September 2014 advising her that it was ready to proceed to investigate her complaint when she was certified fit to return to work or at least fit to participate in such an investigation.
The Respondent told the Court that she did not receive the letters of the 24 June or of 18 August or of 11 September but did receive the letter of 25 August. However, later in evidence she told the Court that she did receive those letters with the exception of the letter of 11th September.
Having considered the evidence before it the Court finds that the Complainant’s evidence was contradictory and unreliable. The evidence of the Respondent, by comparison, was clear and precise and consistent with the documentation before the Court.
On that basis the Court prefers the evidence of the Respondent over that of the Complainant.
The Court was also told that the alleged perpetrator completely denied that any act of harassment or of sexual harassment took place. In a statement he said that he had assisted the Complainant who was upset when management refused her request for extended annual leave. He further stated that he felt somewhat responsible for the situation as he had introduced the Complainant to the respondent and recommended her for employment.
The Court finds that the complainant’s evidence is not reliable and that as a consequence she has failed to establish facts from which an inference of discrimination may be drawn by the Court. Having failed so to do, the Court finds that the complaint has not been made out and affirms the Decision of the Adjudication Officer.
Determination.
The Court determines that the complaint is not well-founded. The Decision of the Adjudication Officer is affirmed. The Court so determines.
Discriminatory Dismissal
In her submissions to the Court she claims that she was dismissed from her employment on the 29 April 2014. However when the case came before the Court the Complainant, in evidence, stated that she was not dismissed from her employment as claimed.
Determination
On that basis the Court determines that this complaint is not well-founded and dismisses the appeal.
Signed on behalf of the Labour Court
Brendan Hayes
JD______________________
20 June 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.