Complainant

Respondent

Anonymised Parties

A Receptionist

Car Parts Company

Representatives

Clondalkin and Lucan Citizens Information Centre

Ray Motherway B.L. instructed by Robert Emmet Bourke & Co Solicitors.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00012836-001

28/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00012836-002

28/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012836-003

28/07/2017

The complainant was employed by the respondent from the 6th of October 2016 until the 13th of April 2017. She is claiming she was sexually harassed during the course of her employment and that she was dismissed for rejecting the treatment.

The complainant said that she had been working as an assistant in a petrol station where she got to know a number of regular customers who worked in a nearby business. One day the Managing Director of the respondent business informed her that he had a position as a receptionist available in the company and asked if she was interested. The MD returned with the owner of the company and asked her to an interview. She attended an interview with the MD and the owner (Mr. A). She said that they did not ask her for any information about her experience or qualifications. They just offered her the job.

She started work on 7th October 2016 and received a contract the following month. The contract was dated 13th October 2016. She worked a 6 day week Monday-Saturday, working 48 hours and was paid €411.75 per week. She said that she was very happy with the job at the beginning because she believed that there were prospects for development.

The complainant said that the first incident of sexual harassment occurred at the Christmas party which was held in Kilkenny on the 10th of December 2016. The party was held in a hotel and she was sitting at one of the tables with the other employees when the owner of the company, Mr. A, asked her to come up to the bar to have a shot. She said that she went to the bar and he asked her to sit down because he wanted to talk to her. He told her that she was doing a good job. He then commented on her looks saying that she was gorgeous and suggested that she could have any of the men at the party pointing at the other employees. She explained that she was not interested in any of them. After that he began to make unwanted advances to her and asking her if she wanted to have sex with him. He then proceeded to make a vulgar and inappropriate comment to her. She said that she felt very uncomfortable. Mr. A then gave her directions to his bedroom and he walked off towards it. The complainant told her work colleague (Ms. B) about the incident. She said that she felt intimidated and worried about her job and the fact that the owner of the company wanted to have sex with her.   Ms. B brought her to the toilet to calm her down.

The complainant said that she was on the dance floor dancing with some of the other employees and Mr. A approached her again. He started dancing behind her and he touched her inappropriately. She was very upset by this behaviour and left the dance floor and went outside. Mr. A followed her and asked her to come back inside. She said that she felt very vulnerable at that moment but another person came outside and that gave her a chance to get away. She returned to her room and did not see Mr. A again that night. She encountered Mr. A again the next morning and he made further comments of a sexual nature to her. She and three other employees including the MD got a lift home and during that trip comments of a sexual nature were directed at her.

She said that she decided that the behaviour at the Christmas party was probably a once off incident with Mr. A and she returned to work as normal the following Monday. The complainant said that on Monday, Mr. A did not come in and next day he walked past the reception without saying anything to her and after that he resumed saying hello to her. A couple of weeks after the Christmas party a customer dropped in a tow bar for repair and Mr. A picked it up and directed a comment of a sexual nature at her.

During the following month or two, the owner was not around much because they were about to open another branch and he was involved in the preparatory work there. After the new branch opened, the complainant was asked to work there for 3 days a week and to work 3 days in the first store. She said that the new store was 27km away and thus her travel time and travel costs increased significantly, she agreed to do it because she wanted to show her commitment to the job.

The complainant said that as part of the job, she was responsible for answering questions from customers via the Live chat on the company website. Initially it was the complainant, a female colleague and Mr. A, the owner, who were set up to answer the live chat queries. Later the Managing Director was added so that he could answer inquiries also. She said she was keen

to improve her knowledge, so she read over the transcripts of the live chats carried out by the others

to learn the best way to answer particular questions. One day in February, she was looking through the archived transcripts when she came across a conversation which had been answered by the Managing Director. The question posed requested a particular sexual favour ("I need a blow job”) and the Managing Director responded that it could not be provided because the complainant was not in that day. The complainant was very shocked, upset and humiliated when she read this and she immediately got in touch with the MD. He denied that he had written it.

The complainant said after that telephone call, the owner came in to the office and when she showed him what was on the screen he just laughed. She put it to him that she believed that he wrote it and he denied it saying that it was the MD. She was very upset and she took photos of the transcript. She said that there was nobody to complain to and she had not been made aware of any grievance procedure or policy on the prevention of sexual harassment. Several days later the MD spoke to her and told her that it was the owner Mr A who was responsible for the live chat content.

On the 22nd March, the owner, Mr. A, asked her to come to the head office to drop off some paperwork. On that day, she was not wearing any make-up. As soon as she arrived, the owner said "Did you lose your make-up?" She felt very self-conscious and embarrassed at the comment because she suffers from bad skin and is very conscious about it. He then went on to make a comment about anti-spot juice being sold in a particular juice bar. She said that she was humiliated by these comments and after that she made sure that she always wore makeup. The next day the owner commented that he was glad she had found her makeup again.

The complainant said that as a consequence of these incidents of sexual harassment, she felt increasingly uncomfortable in the workplace and suffered high levels of stress and anxiety. It was submitted that she was never been given a copy of any company grievance procedure, and to her knowledge there was no company policy relating to the prevention of sexual harassment. In any case, as the problems related to the owner of the company, she felt unable to complain without risking her job. She said that she did not want to lose her job because she saw it as a good job in which she was gaining a lot of experience. Therefore, she continued to work but sought help in relation to her high stress level and attended acupuncture sessions to help her to cope with it better.

On the morning of the 13th April, the complainant decided to ask the Managing Director about a pay rise. She had been there for over 6 months and at the interview she was told she could ask for a pay rise after 3 months. She felt that she deserved to be receiving more than €411.75, especially since she now had the extra travel time and costs associated with travelling to the new branch. The Managing Director told her he would think about it. He called her in to the office later that day and told her he was not giving her a pay rise and that he had decided to let her go. The complainant said that she was shocked. She asked for the reason and he told her that it was because the owner said he could not talk to her anymore. She then asked for the reason in writing. MD also said that she was acting differently than when she was working in the petrol station. At this point the complainant said that she became visibly upset and she told the MD about Mr. A. sexually harassing her.

After she was dismissed, the complainant e-mailed the MD seeking a letter outlining the reasons for her dismissal, her p45 and a reference. She did not receive them. The following week she went to the office accompanied by her father and asked for a letter stating the exact reasons for the dismissal. The MD asked her what she wanted written in the letter of dismissal and she told him that she did not know. After that she received a letter dated 24th April from the respondent’s solicitors, which stated that she had been on a 6 month fixed term contract and that the company had decided not to renew it. The complainant said that she was shocked as no-one had ever mentioned that she was on a fixed term contract. Nor had this reason ever been mentioned at the time she was let go. She submitted that this was not the real reason for her dismissal. The complainant rejected the respondent’s contention that she made numerous mistakes and that she was let go because she did not pass her probation. She said that there had never been any issues with her work. She believes that the real reason for dismissal is the fact that she had not accepted the owner's advances towards her. It was submitted that the dismissal was discriminatory and contrary to S. 14A of the Employment Equality Acts 1998-2015.

The complainant was employed by the respondent from the 6th of October 2016 until the 13th of April 2017. Her continuing employment with the respondent company was subject to the successful completion of a standard 6 month probationary period outlined in the employment contract. The expected performance improvements were communicated to the complainant at a meeting on 6th December 2016. Her Line Manager the MD assessed her overall performance over the following months and, in his view, she had not improved to meet general professional standards, therefore he informed the complainant that she had not successfully passed the 6 month probation period at a review meeting on 13th April 2017.

The claimant’s allegations surrounding the company’s Christmas Party on Saturday 10th December 2016 are completely denied by the owner, Mr. A. He categorically stated that nothing inappropriate occurred. He is emphatic that the alleged proposition outlined by the complainant absolutely did not happen. He said that these allegations are malicious and without foundation.

Mr. A, denies treating the complainant any differently after the Christmas Party. The complainant reported to the MD, and Mr. A said that he had very little day to day dealing with her. The respondent categorically denied that the complainant was treated differently to any other employee. In relation to the Christmas party, Mr. A said that he noticed that the complainant was upset and he asked her if she would like a drink and she ordered a shot. They sat at a table close to the bar and there were other people there also. He asked what was wrong with her and she complained about being chased by 2 male employees. He said that he did not dance alone with her or make any inappropriate personal contact with her.

He said that the company is aware that an unacceptable comment was made on the internal Live chat at the time the system was being developed internally. The MD was the only user name under which you could get into the system. Any member of staff could have used the system under MD’s name. The live chat content went unnoticed for some time until the complainant drew attention to it in February 2017.   Mr. A said that he walked into the office and the complainant showed it to him. He said that the complainant was not upset about it and he believed she laughed at it. The complainant asked him if he had written the comments and he denied it.   He said that no complaint was made about it and he left it to the MD to follow it up. He accepts that the content of the live chat was offensive to the complainant. He understands that the complainant specifically requested the MD not to investigate the matter officially saying she’d prefer to let it go. In any event, MD did make changes to safeguard the system, allocating specific user IDs to each employee, and addressed the staff regarding proper use of same.

Mr. A recalled one occasion, when the complainant was drinking a health drink and she informed him it was a detox to try and clear her skin. He told her he used to drink it to help his skin. He said that this was a friendly conversation.

In response to the complainant’s allegation that her work environment caused her stress and that she had to get help and obtained acupuncture to relieve this alleged stress, the respondent states that it was never brought to their attention. The company can confirm that no stress was ever notified to them and the first they became aware of this was when complaint form was furnished to the company.

Mr. A said that the complainant was frequently emotional and this started to happen about 2 weeks into the employment. He said that she was weak in the position and she made a number of mistakes. He said he is busy and did not have time to deal with staff issues and he has delegated this function to the MD. The MD came to him and suggested terminating the complainant’s employment for general failure in carrying out her duties, and he agreed with the decision. He heard of the allegations about sexual harassment on the day her employment was terminated.

The MD said that he was the complainant’s direct line manager and responsible for all the staff and the daily running of the business. He noticed from early on that there were problems with the complainant’s work, for example she was not taking telephone messages properly, not sending e-mails, missing digits from the telephone messages, incorrect pricing. She had difficulties handling irate customers and he arranged a meeting with her and the other receptionist (Ms. B) on the 6th of October 2016 and he went through all aspects of the job with her.

He said that he received no report from the complainant of any inappropriate behaviour at the Christmas party. He was a passenger in the car, with 4 other staff including the complainant, on the way back from Kilkenny the day after the Christmas party and it was the complainant who initiated the sexually explicit comments about another person with whom she had a relationship.

He spoke to the complainant about the live chat content after it was brought to his attention and assured her he was not responsible for it. She accepted his word and said that she believed it was Mr. A. She began to get upset and he left her for a minute to compose herself. He then asked her what she wanted to do about it and she said nothing and then said to forget about it. He said that he got the impression that she did not want it broadcast around. He said that he did not investigate to find who was responsible nor did he issue any warning to the staff about putting up offensive online content. In hindsight, he said he should have carried out a more thorough investigation. He said that he did not bring the grievance procedure or the company policy on the prevention of harassment and sexual harassment to her attention. He was not aware that the live chat incident constituted sexual harassment.

On the 13th of April 2017, the MD said that the complainant approached him and said that she was due a review and said that she wanted a pay rise. He arranged to meet her later that day. In the meantime, he spoke to Mr. A and advised him that her probation was up. He said that he told Mr. A that he was letting her go because he felt she was not cut out for the job. The complainant attended the meeting and asked him for a pay rise. He informed her that he was letting her go. She got very upset and said that she was being let go because she had rejected Mr. A’s sexual advances at the Christmas party.

The respondent submitted that no complaint or allegation was raised or flagged by the complainant until after the complainant was informed that her probation was unsuccessful.

The respondent denies the claimant’s version of events and furthermore contends that the company could not engage with their procedures as they were not notified of any grievances or allegations from the complainant.

The issues for decision by me is whether the respondent (i) sexually harassed the complainant contrary to section 14A of the Employment Equality Acts, 1998 as amended and (ii) dismissed her for having rejected the sexual harassment in circumstances constituting discrimination of her on grounds of gender contrary to the Acts. In reaching my decision I have taken into consideration all submissions, oral and written, made to me by the parties as well as the evidence given by the witnesses at the Hearing. Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary."

It requires the complainant to establish, in the first instance, a prima facie case of discrimination, that is, facts from which it can be established that she was sexually harassed and discriminated against on the gender ground in relation to her conditions of employment.  It is only when she has discharged this burden to the satisfaction of Adjudication Officer that the burden shifts to the respondent to rebut the prima facie case of discrimination raised.

Section 14A of the Acts defines sexual harassment as:

“any form of unwanted verbal, non-verbal or physical conduct of a sexual nature, being conduct 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.”

The Act goes on to give examples of unwanted conduct and states: (b) 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." 

The Labour Court in the case of Nail Zone Ltd and A Worker Determination No. EDA1023, defined the law in relation to harassment as follows:

“The essential characteristics of harassment within this statutory meaning is that the conduct is (a) unwanted and (b) that it has either the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. This suggests a subjective test and if the impugned conduct had the effect referred to at paragraph (b) of the subsection, whether or not that effect was intended, and whether or not the conduct would have produced the same result in a person of greater fortitude than the Complainant, it constitutes harassment for the purpose of the Acts.”

The complainant contends that Mr. A sexually harassed her on a number of different occasions as outlined above and that she was dismissed from the employment when she rejected the sexual harassment. The respondent rejects the allegations of sexual harassment and submits that she was dismissed because there were issues with her work during her 6 month probation period.

There are no witnesses to corroborate the evidence in relation to the allegations concerning the Christmas party or some of the other comments which the complainant found offensive, however, both parties accept that the live chat incident happened and screen shots were produced in evidence. I note, in evidence, the MD said that he was not aware that the content of the live could constitute sexual harassment of the complainant and for this reason he did not take it seriously and investigate the matter. It is very surprising that the owner of the company, Mr. A, did not make any attempt to investigate the source of the live chat, nor did he seem perturbed by the abuse of this facility. I also note that he made no attempt to remove the inappropriate content. There is no question but that the content of the live chat was anything other than a vile act of sexual innuendo directed at the complainant. In considering the essential characteristics of harassment as defined by the Labour Court in Nail Zone cited above there is no doubt that this content, which could be seen by many of the staff, constituted an intimidating, hostile, offensive degrading and humiliating work environment for the complainant. I note that the live chat remained on the system and the respondent had not taken any steps to have it removed even up to the date of this hearing.

As I have stated above, no witnesses gave evidence to corroborate the Christmas party allegations, but I have concluded in the light of the blasé attitude of the respondent towards a very serious incident of sexual harassment, that the complainant’s version of events in relation to this incident is the more accurate.   I note that Mr. A, in evidence, said that he noticed the complainant was upset during the party and I believe this provides corroboration of the complainant’s version of what happened that night. She said that she was upset during the party and confided in her work colleague about the sexual advances she was subjected to from Mr. A. I accept that the complainant was upset because of the inappropriate behaviour.

I find therefore, that Mr. A subjected the complainant during the course of her employment to the inappropriate treatment and to the inappropriate comments which she attributed to him and which she outlined in her evidence above.   I have found the above treatment falls within the definition of sexual harassment under section 14A of the Acts.  On the basis of the foregoing, I am satisfied that the complainant has established a prima facie case of sexual harassment contrary to section 14A of the Employment Equality Acts.

 I am not satisfied that the respondent has rebutted the prima facie case of sexual harassment established by the complainant.  I note that Section 14A(2) of the Employment Equality Acts, 1998 provides a statutory defence for the respondent in cases of sexual harassment. “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.”

I will now examine the evidence in light of this Section of the Act. The respondent’s evidence is that the complainant did not complain about the alleged sexual harassment until she was dismissed.     This is factually incorrect as it was accepted in evidence that the complainant raised the content of the live chat with both Mr. A and the MD. The MD said that the company has a grievance procedure and a policy for dealing with incidents of sexual harassment. He said that an independent HR consultant looks after these matters. He accepted that he has not read the policies in any detail and that he did not bring them to the complainant’s attention when she complained about the live chat. The policies were not produced in evidence, but photographs of ring binders which purported to contain the policy on preventing sexual harassment was put in evidence. However, having heard the evidence from the MD, I am not convinced that the respondent has any policy or procedures in place to deal with complaints of sexual harassment. I note that the complainant complained to both Mr. A and the MD about the live chat. As Mr. A is the owner and employer of the complainant he was in a position of power over her and the defence under this section is not available to him. MD’s absolute failure to deal with the complaint of sexual harassment brought to his attention means that he cannot rely on the statutory defence available. Therefore, the respondent has failed to rebut the prima facie case of sexual harassment on the gender ground raised by the complainant.

The complainant submits she was dismissed because she rejected Mr. A’s sexual advances. The respondent submits that she was dismissed because her work was not up to standard and she did not pass her probation. The respondent said that he had a meeting with the complainant on the 6th of December 2016 to outline the improvements he expected in her performance. I note that the complainant was only two months in the employment at that stage and she had no experience as a receptionist when she was recruited, so this meeting could not have constituted anything other than a training session. The MD said that he had a number of chats with her subsequently but her performance did not improve. He accepted that he never gave her a warning about her performance. I note that the complainant was transferred to work for three days per week in the new branch when it opened in or around February/March 2017. I am of the opinion that if the complainant’s performance was so unsatisfactory she would not have been asked to work for 3 days per week away from the direct supervision of her line manager MD.

I note it was the complainant who initiated the meeting which led to her dismissal when she sought a pay rise from the MD. Likewise, I note that at the termination meeting MD told the complainant they needed to part company, but he did not tell her it was due to poor performance. The complainant said she was told she was being let go because Mr. A could not talk to her anymore. I believe that this was the real reason for the dismissal. I note that the complainant requested the reason for her dismissal in writing on two occasions and after the third request she received a letter from the respondent’s solicitor, which said her fixed term contract had expired. This was incorrect because the complainant’s contract was not a fixed term contract. If the complainant’s work performance was the real reason for the dismissal it is difficult to know why she was never warned about her performance, and informed of this reason in writing when she requested it. I find the complainant’s evidence regarding the termination meeting more convincing. I am satisfied that Mr. A dismissed the complainant because he could not talk to her since she had rejected the inappropriate treatment of her. Therefore, I find the dismissal is a discriminatory dismissal within the meaning of the Act.  

I find that the complainant was sexually harassed and dismissed for discriminatory reasons within the meaning of the Act.

Section 82-(i)(c) of the Act provides that I can make an order for the effects of the discrimination. The maximum award I can make under Section 82(4) is two years pay for discriminatory treatment and dismissal. According to the figures I was provided with by the respondent, the complainant’s correct weekly pay for a 48 hour week was €444 amounting to a yearly pay of €23,088. The EU Directives require sanctions for a breach of the principle of equal treatment to be effective, dissuasive and proportionate. This is a case where I believe that the maximum award is applicable, given the completely inappropriate behaviour, and the fact the complainant lost her job because of the rejection of such behaviour.

(i)   In accordance with Section 82 of the Act, I order the respondent pay the complainant €46,000 in compensation for the distress and the effects caused by the discriminatory treatment, sexual harassment and the discriminatory dismissal within 42 days of this decision.

The total award is redress for the infringement of the complainant’s statutory rights and, therefore, is not subject to income tax as per Section 192A of the Taxes Consolidation Act 1997 (as amended by Section 7 of the Finance Act 2004).

(ii)I order the respondent to develop a code of Practice on Harassment on all of the nine discriminatory grounds covered by the Employment Equality Acts, 1998-2015, which is modelled on the Employment Equality Act, 1998 (Code of Practice)(Harassment) Order, 2002 and that this Code should be in place within 3 months from the date of this decision; (iii) that a copy of this Code is given to all existing and new staff (on arrival) and that staff are fully acquainted with its contents;

(iv) that all staff who have staff management functions fully acquaint themselves with all aspects of the code.

Employment Equality Acts, sexual harassment, discriminatory dismissal.