ADJ-00008580

Complainant

Respondent

Anonymised Parties

A Bartender/Waitress

A Kerry based Hotel

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00011213-001

09/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00011213-002

09/05/2017

This dispute involves a claim by the complainant against the respondent that she was discriminated against and harassed on grounds of gender and family status in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015, and that she was subjected to a discriminatory dismissal.   The complainant had also submitted a claim of Unfair Dismissal but opted to pursue the Discriminatory Dismissal claim and did not pursue the claim of Unfair Dismissal. The complaint form also referred to a claim of victimization which the complainant advised the hearing was not being pursued. The complainant referred complaints against the above respondent under the Employment Equality Acts 1998 to 2015, to the Workplace Relations Commission on the 9^th of May, 2017.

In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts.   As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 2^nd of November, 2017.   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.

It is submitted that:

the complainant was employed by the respondent from 22nd of February, 2016 to 26th of March 2017 as a Waitress/Bartender on a part time basis,

the complainant was unable to attend work on 25th of March, 2017 due to her child being sick,

she advised the respondent that she could not attend work on the night in question,

the complainant was not rostered to work after the 25th of March, 2017,

the complainant questioned her manager Mr. C regarding why she was not rostered and was told that by Mr. C she had been on her last chance and reference was made to the night of 25th of March when she did not show up for work, Mr. C also told her that he would give her a reference,

the complainant was dismissed on grounds of family status,

the complainant during her employment was harassed by Mr. C on grounds of gender and was regularly subjected to name calling, a practice which was not inflicted on male members of staff,

a male employee who was hired after the complainant was rostered for work when the complainant was not.

It is submitted that:

the complainant was employed by the respondent as a waitress/bartender on a part time basis from 22^nd of February, 2016 to end March 2017,

The complainant did not show up for work on 25^th of March, 2017, one of the busiest nights of the year during which there was a dance competition being held in the hotel,

The complainant was not rostered the following week as there were no hours available,

The complainant left the respondent employment and requested her p45 on the 7^th of April, 2017 as she had found another job.

The issue for decision by me now is, whether or not, the respondent discriminated against the complainant, on grounds of family status in terms of Section 6 and contrary to Section 8 of the Employment Equality Acts, 1998 to 2015, in relation to her dismissal and whether she was harassed by the respondent on grounds of gender.   In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.  

Discrimination

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".

Section 6(1) of the Employment Equality Acts, 1998 to 2015 provides that discrimination shall be taken to occur where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2)…..” Sections 6(2)(a) and (c) of the Acts define the discriminatory grounds of gender and family status as follows – “as between any 2 persons, ...

(a) that one is a woman and the other is a man,..

(c) that one has family status and the other does not,...

Complainant re Discriminatory dismissal

The complainant advised the hearing, that she had been unable to attend work on Saturday 25^th of March 2017 due to the fact that her child was sick and states that she as a single mother could not leave him with a babysitter to go to work. The complainant told the hearing that she had brought her son to the emergency doctor during the night of the 24^th of March 2017 as he had a persistent cough. The complainant submitted evidence of her sons visit to the out of hours doctor service on the night in question.   She advised the hearing that she was due to work the next night at 8 pm but states that she was unable to go to work as she could not leave her child with a babysitter due to the fact that he was unwell.   The complainant advised the hearing that she notified the respondent that she could not come in to work a number of hours before she was due to start.

The complainant advised the hearing that she was unable to phone the respondent directly to let them know she could not come in to work as her phone had been stolen a few days previously a fact which she said her manager Mr. G was aware of. The respondent at the hearing did not deny or dispute this. The complainant stated that in the absence of her own phone she had the use of a phone with internet only capabilities without a sim card so she could not make phone calls. The complainant told the hearing that she messaged a work colleague Ms. N at 3pm on Saturday to ask her to pass a message on to her manager Mr. G that she could not come in to work that night due to her child being sick.   The complainant submitted in evidence copies of the messages between her and her colleague Ms. N.   The messaging took place between 3 and 3.30 pm on the date in question and Ms. N’s replies indicated that she advised Mr. G that the complainant could not come into work that night.

Witness for the respondent Mr. G at the hearing initially denied that he had been told by Ms. N that the complainant would not be coming in to work that night due to her sick child but he later stated that Ms. N had mentioned something to him in passing at about 5, 6 or 7 o clock but definitely not as early as 3.30pm which is the time indicated in the messages between the complainant and Ms. N.

Witness for the respondent Mr. G also initially stated that he did not know why the complainant had not shown up for work but in a later exchange of text messages with the complainant referred to the fact that she did not have a babysitter on the night in question.   Mr. G also told the hearing that he had heard a hint of something the previous night from another member of staff which led him to believe that the complainant was unable to get a babysitter for the following night and so would not be coming into work.

The complainant advised the hearing that she had booked a weeks holidays on the week after the incident so was not rostered to work that week but that she expected to be rostered as usual the following week. The complainant told the hearing that she was surprised to find that she was not rostered for any hours the next week either.   The complainant Ms. S advised the hearing that she had then messaged her manager Mr. G to ask what her hours were for the following week and was told by Mr. G that she had no hours that week. She then asked why she had no hours that week having had between 20 and 40 hours a week prior to that, she also told Mr. G that she had bills to pay and no income.   The complainant states that Mr. G replied “you were on your last chance you knew during the week you couldn’t get a babysitter and told me through a fb message to a colleague….I told you that week you were on last chance…I cant do anything and completely out of my hands sorry….I’ll give you a reference if you need one”. The complainant submitted copies of these text messages in evidence in support of her submissions. The exchange of text messages took place on the 10^th of April, 2017.

1. ^th of March 2017, she knew she had been dismissed and so she began looking for another job as she had bills to pay.   Ms. S stated that it was after this that she went to the respondent to ask for her P45 as she needed it for another job.  

The respondent submits that the complainant was not dismissed but that she resigned her employment by requesting her P45 on the 7^th of April, 2017.     The complainant agrees that she did request her P45 but states that it was much later than the 7^th of April 2017 and states that she only requested it after her exchange with her manager Mr. G during which it became clear to her that she was dismissed due to her failure to show up for work om the 25^th of March 2017.     Ms. S told the hearing that she gone to the respondent’s premises and her place of work sometime during mid to late April and had asked at reception for her p45. Ms. S stated that she was told she had to put the request in writing so she stated that she quickly wrote a note on a sheet a paper asking for her p45. Ms. S stated that she had not dated the piece of paper but that the respondent must have later date stamped the piece of paper with the date of the 7th of April, which was not correct. The respondent at the hearing did not offer any explanation as to how the date of the 7th of April was stamped with the hotel stamp on the note from Ms. S and did not deny her submission that an incorrect date was inserted by the respondent. The complainant in advancing this assertion provided copies of the exchange of messages between herself and her manager Mr. G which took place on 10^th of April 2017 thus supporting the complainant’s assertion that the date of 7^th of April was incorrect and was inserted by the respondent.   Ms. S stated that she did not know on 7^th of April that she had been dismissed as she only became aware after failing to be rostered for any hours and after the exchange of messages with her manager Mr. G on the 10^th of April, 2017.

The complainant submits that her dismissal amounts to discrimination on grounds of family status. The respondent in its initial submissions asserts that the complainant was not dismissed but that she was not rostered as there were no hours available and that she had then requested her p45 without any dismissal or action on the part of the respondent.   In addition, witness for the respondent Mr. G told the hearing that he had prepared the roster for the following week but stated that he did not roster the complainant as he didn’t know if she was available for work given that she had not shown up for work on the 25^th of March, 2017. Mr. G did not provide any reason for his assumption that the complainant might not have been available for work.

It is clear from the evidence adduced and from the exchange of messages between the complainant and her manager Mr. G that he considered her employment to be terminated following her failure to show up for work on the 25^th of March, 2017.   In addition, the fact that Mr. G in his messages clearly refers to the fact that he was aware of the complainant’s family status and made reference to the fact that she could not get a babysitter on the night of the 25^th of March establishes a clear nexus between the dismissal and the complainant’s family status.  

The respondent prior to the hearing had submitted that the complainant was not dismissed but that she was not rostered to work as there were no hours available for her.   The complainant disputed this and stated that another person Mr. R was taken on and given full time hours at the time when there were allegedly no hours available to give to the complainant. Witness for the respondent Mr. G in his evidence made reference to the fact that this was not the first time the complainant had failed to show up for work and stated that it had happened on one or two previous occasions when she was also unable to get a babysitter.   The complainant at the hearing did not deny this.   Mr. G in his messages of 10^th of April 2017 also referred to the fact that the complainant was unable to get a babysitter and made this reference in direct reply to her question as to why she was not rostered for any hours that week.

I am satisfied from the totality of the evidence adduced that the complainant did not show up for work on the night of the 25^th of March 2017 which the respondent submits was one of the busiest nights of the year. I am satisfied that the reason for this was due to the fact that the complainant’s child was sick and she could not leave him to go to work.   I am also satisfied that the respondent was notified that the complainant would not be attending work on the night in question, albeit not directly but through a colleague of the complainant, Ms. N. I am also satisfied that the respondent was aware that the reason for the complainant’s non-attendance was due to the fact that she could not leave her sick child with a babysitter and related to her status as a single mother.     I am satisfied that her manager Mr. G was aware of this reason due to the fact that he referred to it in the text messages of 10^th of April, 2017.

1. ^th of March 2017, again this was referred to by Mr. G in his text messages to the complainant.     I am thus satisfied that the complainant was dismissed, due to the references in Mr. G s text messages which conclude with him offering to provide the complainant with a reference.     I am satisfied that there is a clear nexus between the dismissal and the complainant’s family status, as the reason given by Mr. G for not rostering the complainant was, according to him, due to the fact that she “knew (she) could not get a babysitter”, and told him that day “through a face book message to a work colleague” clearly referring to her family status and referring to the night of 25^th of March when she had not shown up for work due to her child being sick.    

The complainant submits that she notified the respondent that she would not be attending work and the reason for same, however she also states that this notification was done through a friend Ms., N via a face book message. The complainant submits that the reason for this is due to the fact that her own phone had been stolen. This was not an ideal method of notifying her employer that she was unable to attend work on one of the busiest nights of the year.   The complainant during the hearing referred to the fact that her mother and the child’s father both shared babysitting responsibilities while the complainant went to work, so it is clear that the complainant must have had some arrangement in place for her child to be looked after on the 25^th of March 2017 and that this arrangement must have been made and later cancelled via some form of contact with either her mother or the child’s father. The complainant could in the circumstances have made a call from someone else’s phone and given that the night in question was such a busy night for the respondent, a reasonable person would have ensured that they made direct contact with their employer to explain that they would not be able to go to work and the reasons for same. In addition, had such direct contact been made and with enough notice the respondent may have been in a position to call someone else in to cover the complainant’s shift on the night in question. Accordingly, I find that the complainant contributed to her own dismissal by her behavior and I am not satisfied that she made every effort to find a phone or access a phone in order to notify the respondent directly that she could not come to work.  

I am satisfied from the totality of the evidence adduced that the complainant has established a prima facie case of discrimination on grounds of family status in relation to her dismissal which the respondent has failed to rebut.   I am thus satisfied that the complainant was discriminated against by the respondent on the grounds of family status in respect of her dismissal.

Harassment

Harassment is defined in Section 14A(7) of the Acts 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. 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 14A (2) provides a defence for an employer if it can prove that it took reasonably practicable steps to prevent the person from harassing the victim, or any class of person which includes the victim, and to prevent the victim from being treated differently in the workplace, and, if and so far as any such treatment has occurred, to reverse its effects [my emphasis].

The Complainant advised the hearing that she was regularly subjected to name calling by her manager Mr. G.   The complainant told the hearing that Mr. G often called her “fat” “useless” “stupid” and referred to her as a “rehab”. The complainant submits that this amounts to harassment on grounds of gender. The complainant went on to state that it was only female members of staff who were subjected to this name calling by Mr. G and stated that male members of staff were not so treated.   Witness for the complainant Mr. R advised the hearing that he had worked with the complainant and had witnessed the complainant and other female staff members being called names such as “fat” “useless” “stupid” and “rehab”.   Mr. R told the hearing that he was not called names by Mr. G.

Witness for the respondent Mr. G who was visibly upset by the allegations told the hearing that he never used those words to any member of staff and added that this is the first time this has come up.  

Both parties have given conflicting accounts of the alleged name calling, however in ascertaining which account I prefer, I note that the complainant in her evidence has been clear and consistent throughout the hearing. By contrast, Mr. G contradicted himself on a number of occasions during the hearing and I have found a number of inconsistencies in his evidence. Having regard to the foregoing I prefer the evidence of the complainant in this matter.

Other witnesses for the respondent, when questioned on this matter told the hearing that the respondent has a HR manager who deals with issues of bullying.     The respondent stated that it has procedures in place, though it did not provide any details in respect of such procedures, and that the HR manager is available in cases of conflict.     The respondent suggested that the complainant could have approached the HR person if she felt she was being subjected to bullying.   The complainant Ms. S told the hearing that the person the respondent had named as the HR person was rarely around and stated that this had been the complainant’s first job and that she did not even know what HR meant let alone that she could or should have gone to her to complain about her manager. The complainant stated that she had not known know what to do.   The named HR person was not present at the hearing.

I am satisfied from the totality of the evidence adduced that the complainant has raised a case of harassment on grounds of her gender. The Employment Equality Acts provide that an employer can avail of the Section 14(2) defence where it can show that it took reasonably practicable steps to prevent the harassment and to reverse its effects”.   No evidence was adduced at the hearing to show that the respondent took any steps to prevent the harassment of the complainant or to reverse its effects. No details were provided in respect of policies or practices in place or how a staff member can/could invoke such policies and the steps involved except to state that the respondent had procedures and a HR manager who is available in cases of conflict. I thus satisfied from the totality of the evidence adduced that the respondent failed to take reasonable steps to prevent the harassment of the complainant and to reverse the effects of such harassment and thus cannot avail of the Section 14 (2) defence.     Accordingly I am satisfied from the totality of the evidence adduced that the complainant was harassed on grounds of gender contrary to Section 14 (a) of the Acts.

I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find –

(i)                  that the complainant was discriminated against by the respondent on grounds of family status in terms of section 6(2) of the Employment Equality Acts, 1998 -2015 and contrary to section 8 of those Acts in respect of her dismissal, and

(ii)                that the complainant was harassed by the respondent on grounds of gender contrary to Section 14A of the Employment Equality Acts, 1998 -2015.

In making my award, I must ensure that the award is effective, proportionate and dissuasive.   I am satisfied from the totality of the evidence adduced in this case that the complainant was dismissed for reasons connected to her family status and that she was harassed on the ground of gender.   However, I am also satisfied that the complainant in this case contributed to her own dismissal by failing to personally and directly notify the respondent with sufficient advance notice that she could not come to work on the night in question and the circumstances behind her non-attendance, instead relying on a friend/colleague to pass on the message and I must bear this in mind in making my award. In addition, had the complainant personally notified the respondent in sufficient time of the fact that she could not come to work and the reasons for same, the respondent may have been able to arrange cover for what was one of the busiest nights of the year, these facts are taken into account in the redress awarded     Bearing this in mind and having regard to the circumstances of the instant case, I consider an award of compensation in the sum of €8,000 to be just and equitable in the present case.  

In accordance with my powers under section 82 of the Employment Equality Acts, 1998-2015 I hereby order that the respondent pay the complainant that sum by way of compensation for the distress suffered by her as a result of the discrimination.   This award is not in the form of remuneration and is therefore not subject to the PAYE/PRSI Code.

The Unfair Dismissals complaint was not pursued at the hearing as the complainant opted instead to pursue her complaint of Discriminatory Dismissal.