ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011224
Parties:
| Complainant | Respondent |
Anonymised Parties | A Warehouse Operative | A Courier Firm |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00014898-001 | 09/10/2017 |
Date of Adjudication Hearing: 08/03/2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 9th October 2017, the complainant lodged a complaint to the Workplace Relations Commission. The adjudication was held on the 8th March 2018 and the complainant sought to amend the complaint form to include a complaint of sexual harassment and a breach of the Employment Equality Act. The parties made submissions on this issue at the adjudication and made written submissions following the hearing.
Much of the evidence related to an employee of the respondent who did not attend the adjudication. This report refers to him as the Colleague and it is against him that the allegation of sexual harassment is made.
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant worked for the respondent between March 2013 and the 9th May 2017. The complainant’s gross weekly wage was €538. He claims constructive dismissal following his allegation of sexual harassment against a colleague. The respondent denies the claim. |
Summary of Complainant’s Case:
The complainant outlined that he resigned because of the failure of the respondent to address his complaint of bullying and harassment. This was a claim of constructive dismissal and the harassment gave rise to discrimination and a breach of the Employment Equality Act. That discrimination arguably amounted to discriminatory dismissal, but the complainant was advancing the dismissal claim via the Unfair Dismissals Act. The complainant accepted that only one box was ticked on the complaint form and this related to constructive dismissal. The narrative in the text box, however, referred to sexual harassment.
In evidence, the complainant said that the harassment included the colleague persistently grabbing the complainant’s genitalia. The colleague was a referee of a named sport and made very offensive comments in the workplace about the private parts of the young people he refereed. The colleague’s language was atrocious, and he would say sexual profanities. This included asking the complainant whether he had masturbated. The complainant was not comfortable and asked the colleague to stop. He did not initially report the sexual harassment out of embarrassment. He had previously worked on building sites and he knew what banter was. This was not banter.
The complainant and the colleague had an argument on the 5th August 2016 after a cup was left on a palette. The colleague was abusive and called the complainant a “w*nker” and a “pr*ck”. They had another row later that day. The complainant accepted that he had said “I am going to kill you”, but these were only words. The complainant said he apologised to female colleagues who witnessed this interaction.
While the complainant worked between two warehouses, he was dropped off at the warehouse where the colleague worked. He started using public transport before July 2016 and this avoided contact with the colleague. He commented that the last incident occurred on the 5th August 2016. The last occasion of harassment occurred in July 2016, a month before he submitted his complaints.
The complainant raised the issue of harassment and the respondent set up an investigation. He met the first investigator, who approached him and said, “I am your HR”, gesticulating inverted commas. The investigator commented that the complainant’s actions were more “sackable” as he had threatened the colleague. The complainant outlined that he was not happy with the outcome of the first investigation. His solicitor then complained. This led to the second investigation.
The complainant said he had sought CCTV from the respondent to support his claim. He asked the Transport Manager about viewing CCTV and requested this on two further occasions. The second investigator later amended the minutes of the third meeting to refer to the complainant asking for CCTV.
The complainant told the second investigator that he was not happy talking to him as he was a director of the respondent. During the second investigation, the complainant continued to ask why the investigation was taking so long. He commented that the investigation report had referred to one staff member stating that there were no sexual overtones, but also referring to the colleague grabbing this staff member’s backside.
The complainant was expected to answer messages or emails from the colleague during this time. When he refused to do so, the complainant was told that he would have to leave the job. While he got on with his line manager, he was putting the complainant under pressure to answer calls from the colleague. They would be in contact as there were palettes in the other warehouse. There was one occasion when the manager placed his phone on the table in front of the complainant. The phone then rang and it was the colleague calling. The manager told the complainant to answer the call.
Several co-workers had agreed with the complainant’s view. He did not want to get anyone sacked by putting their names forward. It was up to them to come forward. The complainant said that he then decided to walk away. He had no choice but to leave. He went out sick and rang the respondent on the 9th May 2017 to say that he would not be back. He later received his P45. The complainant has since looked for work and was completing an Intereo course to drive a digger. This was his first time working in logistics and he would not work in the sector again. The complainant did not want to be at a WRC hearing and had wanted to keep his job.
In questioning, it was put to the complainant that he had stated that there was little interaction with the colleague after his complaint; he replied that the only interaction was the apology. In respect of his solicitor’s letter, the complainant said that this was the day the colleague was roaring and shouting at him and would not go away. He reported this to the Transport Manager. He told the colleague that he had gone overboard, who then wagged his finger at the complainant. There were no issues with the colleague after that. The complainant said that his reference to “ongoing” was because the colleague approached him after he complained about him. The complainant was also asked to answer calls and messages from the colleague. He said that the emails and messages were work-related, and he was told to copy the colleague. This occurred two or three times per week, or else once every couple of weeks. He did not answer them because the investigation was ongoing. The complainant did not supply dates on which CCTV should be supplied as he did not know the exact dates. He commented that the respondent had CCTV all over the place. He expected the respondent to check the CCTV footage. The complainant accepted that he participated in the investigation after his resignation as he wanted it completed. |
Summary of Respondent’s Case:
The respondent denied the claim of constructive dismissal. It submitted that the complainant could have appealed the investigation finding. The colleague was based in a different warehouse and there was little contact between them after August 2016.
The first investigator outlined that the colleague had accepted that some of his comments were not appropriate but did not say which ones. The complainant had signed off on the process and accepted that there was no contact with the colleague after August 2016. The first investigator said that the allegation of physical harassment was unfounded as he could not find evidence or anyone to corroborate this. He had spoken to warehouse staff and drivers. In respect of the conflicting statements, one was from a driver who was only on site for one hour per day. The other was from a staff member who worked with the colleague, so this statement was of greater evidential value. The first investigator said that the comments the colleague made about young people was not raised in his investigation.
In questioning, the first investigator accepted that the right to appeal was not stated in his letter, although this referred to the complainant raising the issue again with the respondent. It was put to the first investigator that his reference to “locker room” talk showed that the respondent’s subjective view was that the complainant did not suffer sexual harassment and this was not what one witness later said; he replied that the statement was made in April and he used the phrase as the colleague had used these words to him. The first investigator accepted that the complainant and the colleague might have different subjective opinions. The first investigator did not accept that the complainant had suffered sexual harassment as there was no evidence of inappropriate contact. He placed more weight on the one witness’ statement over the other. The first investigator said that he was not impressed by what the colleague described as locker room talk. He said that if there was anything, as soon as this was brought to the respondent’s attention, the issue ceased. His memory was that the complainant was out sick and emailed to say he was leaving the respondent. The first investigator said that the initial contact related to the incident of the 5th August and the written complaint of sexual harassment was made in late August. The CCTV was written over after 2.5 weeks so was not then accessible.
The second investigator outlined that he attended board meetings of the respondent. He was asked to investigate the complaints. He met the complainant and explained the process and the terms of reference. He interviewed the complainant, the colleague and witnesses. There was a serious allegation of physical contact and this took time to investigate. He could not rely on the original investigation and it was frustrating for the complainant to have to repeat his evidence. He sought to recover the CCTV. The complainant made it clear that there were no repeat incidents after the August incident. He was aware of the complainant’s resignation on the 19th June. The second investigator sent the complainant the final report on the 7th July 2017 and asked him to come back with any changes.
In questioning, the second investigator outlined that the complainant had not mentioned the ongoing contact with the colleague. The second investigator was told that there was no contact. There was a typo in his conclusion and it should read “bullying or harassment”. He refuted that his conclusions were flawed and said that they were balanced and fair and based on the information before him. It was put to the second investigator that he concluded that this was locker room talk; he replied that he concluded that the colleague had engaged in general inappropriate comments of a sexual nature. He concluded that there was insufficient evidence to support the allegation of physical contact. The colleague and a co-worker had said it had not happened, one witness said it might have happened and the complainant said it had occurred. He struggled to see why the complainant would accept lifts from someone who he described as engaging in significant sexual abuse. There was conflicting evidence and it was inconclusive. The second investigator said that the last contact from the complainant was to acknowledge receipt of the report. The complaints policy was supplied to the complainant and the policy refers to an appeal. The complainant did not lodge an appeal. |
Findings and Conclusions:
The complainant worked for the respondent between March 2013 until the date of his resignation on the 9th May 2017. The complaint was referred to the Workplace Relations Commission on the 9th October 2017. The complaint form was completed by hand and the complainant ticked the box “I had to leave my job due to the conduct of my employer or others at work and I have at least 12 months service (Unfair Dismissals Act)”. In the narrative, the complainant says, “I was the victim of ongoing sexual harassment / sexual assault carried out by a [the colleague] – a work superior in my place of work.” The issue of sexual harassment was raised in correspondence between the parties and the subject of two investigations.
The complainant set out a strong case in submissions that the complaint form should be amended to include an additional complaint of a contravention of the Employment Equality Act. Applying the High Court and Supreme Court decisions in County Louth VEC v Equality Tribunal and Galway-Mayo Institute of Technology v EAT [2007] IEHC 2010, there is no question of the respondent being surprised or prejudiced by the complaint of sexual harassment. This was front and centre of the complaint to the Workplace Relations Commission and front and centre of the issues raised by the complainant with the respondent and subject of the two investigations.
The respondent submitted that any complaint of sexual harassment is significantly outside the limitation period provided in the Employment Equality Act. The evidence is that there was no incident after August 2016; the complaint was referred on the 9th October 2017. There must be a discriminatory act within the limitation period for a finding that this is part of a “regime” or a “continuum” of discrimination. Any complaint of a breach of the Employment Equality Act would be significantly out-of-time and I have, therefore, not amended the complaint form.
CA-00014898-001 This is a complaint pursuant to the Unfair Dismissals Act. The complainant resigned on the 9th May 2017. His resignation followed alleged incidents of sexual harassment at the hands of the colleague. This led to the altercation between the complainant and the colleague of the 5th August 2016. The complainant later apologised for what he said. The respondent referred the matter to “informal” investigation, which concluded on the 10th October 2016. This concluded “In the unlikely event of you being unhappy or uncomfortable with the behaviour of another staff member, at any time in the future, then the response expected from you by the company is to alert a supervisor at the time of the incident so that the situation to be dealt with in an appropriate and balanced manner. I trust that you accept that the company has dealt with this manner appropriately, that your points been taken seriously and that you have been treated fairly during the process.”
By letter of the 9th December 2016, the complainant indicated his unhappiness with the outcome. His solicitors wrote “We ask you to take full and meaningful measures to protect our client against the unacceptable threat and acts of intimidation being carried out against him by [the Colleague] and to adequately compensate him for the wrongdoing caused. We ask in particular that full steps be taken to ensure against a reoccurrence of the issues which are the subject matter of this letter.”
The respondent established a formal investigation and included in the terms of reference are “The investigators shall prepare a full report, attaching all relevant documentation. This report may include recommendations. The report shall contain findings which will confirm in respect of each of the alleged perpetrators if the complaint is (a) founded (b) unfounded (c) inconclusive or (d) unfounded and malicious.”
The investigator held eight meetings with witnesses, including two with the complainant and one with the colleague. There was a significant conflict between two witnesses: a former employee said that the colleague would “grab the arse” of fellow employees and engage in “sexual banter”, while another witness denied that there was any inappropriate behaviour. The colleague accepted that he used sexualised language, including the offensive reference to genitalia (although denied that this was said in respect of the young people he refereed). The investigator concluded that the complaint of verbal sexual complaint was founded while the complaints of physical harassment and ongoing bullying and harassment were not founded. The report is titled “draft for review prior to finalisation.” The terms of reference state that parties may comment on the findings and the investigator will decide if any further action is required prior to formally concluding the investigation. This report was issued after the complainant’s resignation.
In a case of constructive dismissal, it falls on the employee to show that the respondent’s actions or omissions justified their resignation. Section 1(b) of the Unfair Dismissals Act states: “dismissal”, in relation to an employee, means— … “(b) 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.”
The classic formulation of the legal test in respect of constructive dismissal was set out in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27. This laid out two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ in the following terms: If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The ‘reasonableness test’ assesses the conduct of the employer and whether it “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”
In Berber v Dunnes Stores [2009] 20 E.L.R. 61, the Supreme Court stated that mutual trust and confidence is an implied term in every contract of employment. The Court held “There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.”
Moreover, the Supreme Court in Berber set out the following approach to assess whether a contractual term of mutual trust and confidence was repudiated or broken by an employer’s conduct: “1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at. 4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”
As opened by the respondent, the EAT in Conway v Ulster Bank (UD474/1981) held (by majority) that the employee in that case “did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the appellant did not use it.”
The complainant resigned. The issues complained of are very serious. The evidence conveys the colleague’s repeated and invasive sexualised comments. They related to the complainant, other staff and, most disturbingly, to young people participating in field sport. There was significant conflict in evidence regarding physical harassment. In assessing the evidence, I find as fact that the complainant correctly described the sexual harassment he was subjected to, both verbal and physical. I find that the respondent incorrectly assessed the evidence. It had conflicting evidence whether there was physical sexual harassment. It preferred the evidence of one witness over the other and did so because one worked in the warehouse, while the other was a driver who was only sometimes on site. I note that the colleague was a strong personality, who, taking only his evidence, was outspoken and uncouth (he accepts to publicly referring to female genitalia in an offensive manner). It would have taken a great deal from someone working with the colleague, day in, day out, to give a full account of his actions. The evidence of the person working alongside the colleague should have been treated with caution, in particular when contrasted with the complainant’s evidence and that of the other witness. The investigation finding is, therefore, unsound. I am also satisfied that the complainant expressed his unhappiness with having to deal with the colleague, even on the phone. For completeness, I agree with the respondent that the complainant ought to have specified dates on which to check the CCTV. It was unreasonable to ask the respondent to do a general trawl.
In assessing the claim of constructive dismissal under the contract test, the respondent reacted to the complaint of sexual harassment. It separated the complainant and the colleague into different warehouses. While I appreciate that the complainant was understandably unhappy with having to interact with the colleague by phone or email, this did not amount to repudiation of contract. The respondent instigated a second investigation and this process cannot be described as oppressive. The claim does not succeed on the contract test.
In assessing the complaint of constructive dismissal under the reasonableness test, the question is whether this was a situation where “the employee cannot fairly be expected to put up with [it] any longer.” The interviews took place in the first half of 2017. The complainant resigned in May without having the investigation report to hand. It was sent to him in July 2017. I note that the completed investigation was at point 13 of the 17 points set out in the terms of reference. This process had not finished and there was still opportunity for the complainant to submit why the investigation was deficient. He could also ask how he would be accommodated on a return to work given the finding made against the colleague. I also note that the respondent’s actions prevented the colleague from directly interacting with the complainant. The complainant declined to engage with the colleague and could have formally challenged any such requirement. Taking these factors together, the complainant has not satisfied the reasonableness test.
In a case of constructive dismissal, the legal onus falls on the claimant to satisfy the above legal tests and, for the reasons explained, the claim does not succeed. This does not take away from the odious and obnoxious behaviour the complainant was subjected to, or witnessed, at the hands of the colleague. I am, however, compelled to find that the complaint of constructive dismissal is not well founded. |
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.
CA-00014898-001 For the reasons set out above, I find that the complaint of constructive dismissal made pursuant to the Unfair Dismissals Act is not well founded.
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Dated: 14/03/19
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Unfair Dismissals Act / constructive dismissal Grievance investigation Sexual harassment / limitation period |