ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00007607

Parties:

Anonymised PartiesA WorkerAn Entertainment Company

Complaint(s):

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00010268-001 16/03/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 CA-00010268-002 16/03/2017 Date of Adjudication Hearing: 22/09/2017 Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) received by the Workplace Relations Commission (WRC) on 16TH March 2017 and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).I proceeded to a hearing on 22nd September 2017. Both the Complainant and Respondent were legally represented at the hearing. All written and oral evidence presented to the WRC including the detailed complaint form and documentation submitted on behalf of the Respondent at the hearing have been taken into consideration when coming to this decision.

Background:

The complainant commenced employment with the Respondent company on 13th July 2015. He was employed as a Customer Service Representative. In or about April/May 2016, when on vacation, the complainant received a telephone call from a work colleague informing him that compromising photographs of him had been loaded onto the internet and that employees of the respondent were viewing these photographs around the workplace and that he was the topic of conversation by many in the workplace. During the next 10 months, the complainant alleges that he was subjected to harassment, sexual harassment and victimisation whilst at work and that the Respondent’s management failed to address the situation in a proper manner or at all. The Complainant felt that the only possible course of action left open to him was to resign, this he done in March 2017.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

The complainant commenced employment on 13th July 2015. On 7th June 2016, the complainant was issued with a First Written Warning pursuant to the respondent’s Conduct Policy for sending an inappropriate e-mail via the company system to a colleague. The complainant commenced sick leave on 20th September 2016. On 3rd November 2016, the complainant submitted a grievance letter. The grievance pertained to compromising photographs of the complainant which had been posted on- line and come to the knowledge of the complainant’s colleagues. The complainant alleged that these pictures had come to the knowledge of his colleagues and derogatory remarks were made to him in the workplace about these photographs. Two members of the respondent’s HR team were assigned to investigate his grievance in accordance with the respondent’s Grievance Policy. An initial meeting was held with the Complainant on 10 November 2016. The investigators also met with a number of witnesses named by the Complainant. However, the Complainant was unable to provide the names of persons who he claimed had directly made derogatory or insulting remarks to him, nor were there any witnesses who were able to corroborate that derogatory remarks were made to him. Accordingly, his grievance was only partially upheld. The outcome was communicated to him on 15 December 2015. Critically, the investigators did find that while there was non-specific evidence regarding individual employees or witnesses, the Complainant’s colleagues overall had acknowledged the existence of the pictures, and confirmed that discussions about the pictures did occur. The Respondent was extremely concerned that any of its employees would consider conversations of this nature appropriate in the workplace. The Respondent has a Discrimination, Harassment, and Victimisation Guide which is available to all employees, the existence and location of which is confirmed during induction. Also, the Respondent’s Guide on Bullying in the Workplace is specifically reviewed as part of its induction process with new employees. Immediate steps were taken, and the managers in the Customer Service teams were reminded of their duties in ensuring that conversations of this nature did not take place in the workplace. The Complainant appealed the outcome of the grievance to the Head of HR. In particular, he was critical of the investigators and claimed that they had not interviewed three people who were relevant to the investigation, and had made derogatory remarks to him. It transpired that he had not given these names to the investigators during the investigation, so they could not have interviewed them. Accordingly, this specific aspect of his appeal, and other matters on which he based his appeal were not upheld. He was however advised that if he wished to raise a new grievance against these individuals specifically, this was open to him. The outcome of the appeal was communicated to the Complainant on 16 January 2017.He did not raise any new grievance or complaint after this date. The Complainant returned to work on 24 January 2017. He had been working part-time by agreement with the Respondent, as he wished to spend more time training to compete in world kick-boxing championships. On the third day after his return to work, the Complainant was absent without leave. He failed to come to work, and failed to contact his supervisor to explain the reason for his absence. This matter was investigated, and on the basis, that the written warning issued to him in June 2016 was still extant, the Complainant was issued with a Final Written Warning in respect of his failure to attend for work without leave or explanation. This warning was issued to him on 23rd February and he did not appeal this warning. The Complainant was on annual leave thereafter and resigned by way of text message on 11 March 2017 without giving any notice. At that point, he had worked only 15 days since returning from sick leave in January. The Law. The Complainant has claimed that he was unfairly dismissed. In fact, the Complainant resigned and such resignation does not fall within the definition of “dismissal” under the UD Acts. Based on the facts the Complainant was not entitled, nor was it reasonable for him to terminate his employment without notice. As such, he was not dismissed within the meaning of the UD Acts and has no claim thereunder. Gender Discrimination. The complainant also claims that he was discriminated against by reason of his gender. He has failed to name a comparator, or clarify in what way he has been treated differently to someone of the opposite gender. Victimisation. The Complainant has also claimed that he has been victimised under the Employment Equality Acts. Section 74 (2) of the EEA provides as follows: (2) 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 (b) any proceedings by a complainant (c) an employee having represented or otherwise supported a complainant (d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act (e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment. (f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or (g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs. The complainant has failed to give full details of the manner in which it is claimed that he has been victimised. Harassment/Sexual Harassment. The Complainant has claimed that he has been harassed or sexually harassed in the workplace. He specifically states that despite having made complaints in this regard to the Respondent, “no action was taken by the Company and/or its agents to address this and the behaviour was allowed to continue without any repercussion” Section 14 A (7) of the EEA defines harassment/sexual harassment as follows: “(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, (b) 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. (c) 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 14 A (2) provides as follows: “If harassment or sexual harassment of the victim by a person other than his or her employer would, but for this subsection, be regarded as discrimination by the employer under subsection (1), it is a defence for the employer to prove that the employer took such steps as are reasonably practicable— (a) in a case where subsection (1)(a) applies (whether or not subsection (1)(b) also applies), to prevent the person from harassing or sexually harassing the victim or any class of persons which includes the victim, and (b) in a case where subsection (1)(b) applies, to prevent the victim from being treated differently in the workplace or otherwise in the course of the victim's employment and, if and so far as any such treatment has occurred, to reverse its effects.” As stated above, the Respondent has a Discrimination, Harassment and Victimisation Guide for employees. It specifically provides that displaying offensive pictures, posters or flags is an example of harassment. It also advises employees that if they want to start formal action, to make a formal complaint pursuant to its Grievance Policy. The Complainant was on sick leave for approximately 6 weeks before he initiated his grievance. Once the Respondent was put on notice of the Complainant’s grievance, it took immediate action to investigate same, and appropriate remedial action to address the issues raised. It is the Respondent’s respectful submission that the matter was dealt with promptly, objectively and fairly. As such, it had both taken steps to prevent the Complainant from being harassed or sexually harassed, but also took such immediate steps as were reasonably practicable to address all matters raised by the Complainant, and to reverse any effects of his alleged treatment and ensure that such behaviour as was discovered to have taken place, would not be repeated. It is respectfully submitted that the Complainant’s claim in this regard should fail. 3. Conclusion The Complainant was not dismissed within the meaning of the UD Acts and such claim should be dismissed. The Complainant has failed to provide evidence of discrimination on the gender ground and/or victimisation under the EEA. Such claims should also be dismissed. Insofar as the Complainant alleges that he was harassed or sexually harassed within the meaning of the EEA, the Respondent had policies within the workplace making it clear that any behaviour which constituted harassment would not be tolerated. It investigated his complaints as quickly as possible, and insofar as any parts of his complaint were upheld, took such action as was reasonable and necessary to ensure that such treatment would not, so far as possible, reoccur.

Findings and Conclusions:

In or about April/May 2016, when on vacation, the complainant received a telephone call from a work colleague informing him that compromising photographs of him had been loaded onto the internet and that employees of the respondent were viewing these photographs around the workplace and that he was the topic of conversation by many in the workplace. I find it strange that he did not formally report the incident to the Human Resources Department, he eventually reported the incident on 3rd November 2016. The complainant alleges that he was subjected to numerous derogatory remarks from his colleagues and this would be followed by sniggering and laughter. Colleagues also made derogatory and inappropriate hand gestures as he was walking through the work area. Between the time of the notification by a colleague to November 2016 I believe the complainant made some efforts to address the situation on his own in the belief that he was acting in line with company policy. In his letter dated 3rd November he states: “It recently came to my attention that compromising photographs ……………….”. This was some seven months after being informed of such photographs, can this be described asrecently? When (in September) the complainant spoke to his Team Leader (TL 1) informally and in accordance with the respondent company Grievance Procedure he explained that his behaviour was unacceptable and it had caused him huge distress. Initially TL 1 denied any knowledge but then later “fobbed it off by telling me that it was old news”. Is this the way Team Leaders should be behaving? The complainant then spoke to a more senior manager (MGR) to make a formal complaint regarding the harassment and bullying. He alleges that MGR suggested to him that he ‘takes it on the chin’. I note from the investigation notes that this phrase was used during this conversation but is being quoted out of context by the complainant. What I believe was said at this meeting was that if the complainant was unwilling to furnish names to MGR (which he done on two occasions during this discussion) . The following is taken directly from the interview with MGR: “I asked him if he wanted me to go out onto the floor and address the issue and he said no. I then said I don’t really know what else I could do unless he would tell me who was involved. He would either have to bring the names to me or HR. I then said that if he would not do that he would need to take it on the chin”.The Investigation. Having received the letter of complaint dated 3rd November 2016 the respondent HR team commenced the investigation 10th November 2016. The first interview was with the complainant during which he verbally outlined his grievance and answered any questions put to him by the Chairperson. I note that he had a workplace colleague present as his Companion as per the respondent’s policy. During this interview the complainant claims that a load of his colleagues contacted him informing him of the photographs. Sometime after he came back to work one female colleague informed him of who had found the photographs of him on the internet and had brought them into work. The complainant also claims that another female colleague had informed him that a team leader, TL1, was showing the pictures in the canteen, the complainant had his discussion with TL1 in September 2016. The complainant also informed the Chairperson that he was currently under the care of his GP and a therapist. The Chairperson thanked the complainant for attending the interview and informed him that it may be necessary for them to interview him a second time. The next interview was with TL1 and took place on 15th November 2016.During this interview TL 1 informed the investigators that he had been shown the photos but did not want to say who had shown him the photos. The Chairperson of the investigation then put a question to TL 1 when TL 1 claimed that he had absolutely did not have the photos on his phone – “We have somebody else other than the complainant saying that you did. What happened that day in the canteen? “There are no notes in the respondent’s submission that would indicate an interview prior to 15th November, the only person (per the submission) to be interviewed prior to TL1 was the complainant. The next interview (also on 15th November 2016) as part of the investigation was with the more senior manager (MGR). MGR appeared to know nothing about photos being shown prior to being approached by the complainant early in September. MGR asked the complainant who was showing the pictures around and the complainant refused to say. MGR informed the investigators that he had spoken to TL1 and had established that TL1 was aware that photos were being shown but not by him. MGR asked TL1 again had he been showing the photographs, in reply TL1 said absolutely not. Mgr then spoke to the complainant once more and asked him what he wanted him to do. In reply the complainant said he did not really know. MGR then suggested that he either bring the names to him or the Human Resources Department, failing this he would have to take it on the chin. The next interviewee was an adviser (ADV) - 23rd November 2016 ADV appears to quite sure of what she remembered of the incident. It only lasted about one week and she was shown the photos by TL1, there were other people present at the time but she could not remember exactly who they were. ADV then went onto explain to the Chairperson that someone else was also doing the same thing, TL2. She also informed the Chairperson that the complainant had sent compromising pictures of another female employee to TL2, he (the complainant) had done something similar. ADV appears to be 100% certain that TL1 was showing the photos and TL2 was “going hard with the slagging”. The next interview was with TL2 - 7th December 2016 TL2 informed the Chairperson that he was aware of the photos but had not seen them nor did he discuss them with anyone else. As far as he was aware nobody from his team was involved and this is the reason he did not become involved. If anyone from his team was involved, he would have become more involved to address the situation. TL2 did not report this to management or Human Resources, he was only a TL for a short time and was not sure of the process or procedure. TL2 did offer the opinion “The word I would use to call the chat from everyone is toxic”. The final interview (as per submission) took place on 8th December 2016 and was with the complainant, the reason given for the second interview was to go over some items raised during the course of the investigation. A number of questions were put to the complainant on the subject of him showing photos of female members of staff at parties etc., the complainant denies that he done this. I note that during this interview the complainant is informed by the investigators that they had spoken to six different people as part of the investigation. The submission contains notes from interviews with four members of staff. Were there interviews conducted with two others that were not included in the submission? Respondent Company – Policies and Procedures. The submission presented by the Respondent’s representative is very comprehensive and contained a very detailed and easy to follow index. Contained within the last section, Section E, there is a list of four policy documents: Conduct Policy Grievance Policy ROI Discrimination, Harassment & Victimisation Bullying Policy I note that the dates inserted against each policy are all after the Complainant left the employment of the Respondent. What policies, if any, were in place during the Complainant’s period of employment? The Law. Harassment and Sexual Harassment. Section 14A (7) of the Employment Equality Act describes 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, humiliating or offensive environment for the person. Many forms of behaviour, including spoken words, gestures or the display/circulation of words, pictures or other material, may constitute harassment. The same section of the Act describes sexual harassment as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. Victimisation – Employment Equality Act s74 (2). (2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith – (a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment) (b) opposed by lawful means an act which is unlawful under this act or which was unlawful under any such repealed enactment, (c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or (d) given notice of an intention to do anything within paragraphs (a) to (c). Unfair Dismissals Act, 1977. Section 1 of The Unfair Dismissals Act, 1997 defines Constructive Dismissal as follows: “The termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”. There are two tests contained in the statutory definition, either or both of which may be invoked by the employee. The first is the contract test where the employee argues ‘entitlement’ to terminate the contract. Secondly, the employee may allege that he satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment but it’s conduct may be none the less unreasonable. Contract Test. The breach of contract being alleged must be either a significant breach going to the root of the contract or one which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. In Higgins v Donnelly Mirrors Ltd (UD 104/1979) it was argued that a contract of service includes an implied obligation of mutual respect which might be broken by abusive or unreasonable treatment by the employer. The EAT rejected the employee’s claim of constructive dismissal, showing the heavy onus of proof borne by the complainant. The EAT said she had ‘painted a harrowing picture’ of various meetings. On the other hand, her employer had denied the meetings were as she described. In the EAT’s view ‘she was unduly sensitive and over-reacted’. Reasonable Test. In adjudicating in this instant case I should look at the conduct of both the complainant and the respondent. I accept the complainant utilised the respondent’s Grievance Procedure to a point. In relation to three names the complainant felt he had provided to the employer he was reminded that he could submit a new grievance or bullying and harassment complaint against the three individuals whom he now recalled as making derogatory comments and comments of a derogatory nature (ref letter to complainant from HR Manager dated 16/01/2017). I note that the complainant sent a text message to his Team Leader on 10th March 2017 looking for one more day of annual leave on 11th March 2017. When this was refused, he informed the Team Leader that he would not be coming into work on 11th March and that he wanted to leave. When he was asked to confirm this by email he refused but did confirm his intention to resign without working notice by ‘What’s App’. I believe that an employee should at the very least communicate his grievance before resigning.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. CA – 00010268 – 001 Unfair Dismissals Act,1977 – 2015. I do not believe that the complainant was left with no alternative but to resign. Once the complaint was made the respondent investigated the matter in a period of six weeks, the complainant did not return to work for a sufficient period thus preventing the respondent time to fully address the matter. The complainant waited for a period of almost six months before officially reporting the matter. For these reasons, I have decided that the complaint fails. CA – 00010268 – 002 Gender Discrimination The Complainant claims that he was discriminated against by reason of his gender. He failed to name a comparator or clarify in what way he has been treated differently to someone of the opposite gender. For this reason the complaint fails. CA – 00010268 – 002 Victimisation The Complainant failed to provide full details of the manner in which it is claimed that he has been victimised. For this reason the complaint fails. CA – 00010268 – 002 Harassment The treatment experienced by the complainant did violate his right to dignity at work and created an intimidating, hostile, degrading, humiliating and offensive environment for the Complainant. In these circumstances, I find compensation in the sum of €7,500 to be just and equitable and in accordance with my powers under the Acts I order that the Respondent pay the complainant that sum by way of compensation for the distress suffered by him as a result of the harassment he was subjected to. CA – 00010268 – 002 Sexual Harassment The treatment experienced by the complainant did violate his right to dignity at work and created an intimidating, hostile, degrading, humiliating and offensive environment for the Complainant. In these circumstances, I find compensation in the sum of €7,500 to be just and equitable and in accordance with my powers under the Acts I order that the Respondent pay the complainant that sum by way of compensation for the distress suffered by him as a result of the sexual harassment he was subjected to. Total compensation awarded €15,000 – this sum should be paid within 42 days of the date shown below. Dated: 16.11.17 Workplace Relations Commission Adjudication Officer: Jim Dolan Key Words:Harassment, Sexual Harassment