Complainant

Respondent

Anonymised Parties

A Store Manager

A Provider of pet products

Representatives

McKeever Taylor 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-00021102-001

12/08/2018

The complainant has submitted a claim of harassment, sexual harassment and victimisation on the ground of gender under Section 79 of the Employment Equality Acts, 1998 – 2015 against the respondent. Her claim was submitted on the 12th of August 2018 thus the cognisable period for this claim dates from the 13th of February 2018 to the 12th of August 2018.

This claim was heard along with other claims submitted by the complainant under Adj-00015108 which included an Unfair Dismissal claim.

While it is the policy of the WRC to name the parties to complaints under Employment Equality legislation, I have decided, given the sensitive nature of the complaint, to use my discretion and anonymise the parties in this decision

The complainant submits that

She commenced employment with the respondent on the 19th of March 2017 and was dismissed on the 16th of February 2018 with an effective date of the 26th of February 2018,

During her employment she was harassed and sexually harassed by Mr. A the respondent owner.

The respondent submits that

The complainant was not harassed or sexually harassed by the respondent,

The complaint is out of time as it was submitted on the 12th of August 2018 and the complainant was out on sick leave from 10th of February 2018 to the end of her employment on 16th of February 2018.

The issue for decision by me now is, whether or not, the complainant was harassed and sexually harassed on grounds of gender contrary to section 14 A of the Employment Equality Acts, 1998 to 2015.   There is also a claim of victimisation. 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.  

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."

In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:

"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.

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].

In addressing the complaint, it is necessary to consider the limitation periods provided in the Employment Equality Acts. Section 77 of the Employment Equality Acts provides a limitation period of six months within which claims must be made.  I am also mindful that no application for an extension of the time limit has been made despite the fact that the complainant was legally represented at the time of lodging her complaints and up to and including the first hearing of these matters.

The Applicable Law – Time Limits

Sections 77(5) and 77(6) A of the Employment Equality Act, 1998 to 2015 state as follows:

77(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General of the Workplace Relations Commissioner Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a)shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(6A) For the purposes of this section —

(a) discrimination or victimisation occurs —

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operates over a period, throughout the period,

The respondent submits that the complaint is out of time as it was submitted on the 12th of August 2018 and the complainant was out on sick leave from 10th of February 2018 to the end of her employment on 16th of February following issues with her performance.

The respondent at the hearing submitted that the complaints are out of time as the complaint was submitted on the 12th of August 2018 and the complainants last day in work was the 10th of February 2018.   Given the date of the complaint the cognisable period for this claim dates from the 13th of February 2018 to the 12th of August 2018.     The claimant in her claim form cited   the 14th of February as the most recent date of discrimination. The respondent at the hearing objected to the harassment/sexual harassment claim stating that it was out of time given that the complainant’s last day in work was on the 10th of February 2018. The respondent also referred to the fact that the claimant had lodged other earlier claims against the respondent with the first claim being lodged on the 31st of May 2018 and another claim lodged on the 4th of July 2018 which are encompassed in Adj-00015108. This claim was lodged in August.

The complainant told the hearing that the harassment and sexual harassment had been ongoing during her employment with the respondent with the most recent incident having occurred on the 14th of February 2018 when she received a bunch of flowers at her home from the respondent while out on sick leave from work.  

In deciding whether or not the claim relates to continuing or ongoing harassment and sexual harassment with the most recent incident taking place on the 14th of February 2018 I am guided by the Labour Court Determination EDA 179 Dunnes Stores v Breda Mulholland which states as follows:

“It is settled law that in order for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of a complaint”.

The Court also stated that:

“Only if such acts of discrimination are found to have occurred in that period, can the Court consider whether Acts outside the cognisable period can be considered as part of a continuum of discrimination.

Thus having regard to the above and the circumstances of this case I advised the parties at the hearing that I would look firstly at alleged incidents of harassment and sexual harassment alleged to have taken place within the cognisable six month period of the complaint and if I find that such incident/s amount to harassment or sexual harassment I would then be in a position to extend my investigation to include the investigation of allegations outside of the six month relevant period.

The complainant told the hearing that the harassment and sexual harassment had been ongoing during her employment with the respondent with the most recent incident having occurred on the 14th of February 2018 when she received a bunch of flowers at her home from the respondent while out on sick leave from work.   The complainant advised the hearing that she had been involved in a workplace accident on the 10th of February 2018 during which she slipped on a floor and injured her knee. The complainant stated that she had previously injured the same knee and so was concerned when she hurt it again. The complainant stated that she had tried to continue working that day despite her injury but that she eventually had to go home. The complainant told the hearing that she attended her GP a few days later and that she was advised to take two weeks off work due to her injury.

The complainant advised the hearing that she had received a bunch of flowers from the respondent on the 13th of February 2018.  The complainant stated that the flowers were white lilies which she did not like and which she thought looked more like a funeral bouquet. The complainant stated that following receipt of the flowers she phoned the respondent and stated that the flowers would look better in the respondent’s shop rather than in the complainant’s home.     The complainant told the hearing that she returned the flowers to the respondents work premises.

The complainant told the hearing that she had then gone away to Paris overnight with her husband on the 14th of February and while at the airport she received a call from her daughter to tell her that another bunch of flowers had arrived at home for her and contained a card with the message “Hope you get better soon xx” attached. The complainant submits that these flowers were also sent to her by the respondent.  Witness for the respondent and co-owner Mrs. A confirmed to the hearing that she had sent the complainant flowers on the 13th of February as a get-well gesture as the complainant was off work at the time following a knee injury.  

The respondent advised the hearing that the second bunch of flowers received by the complainant on the 14th of February had been sent in error and had been a duplication of the order for the bunch of flowers sent the previous day on the 13th of February. The complainant disputes that the second flowers were sent in error and asserts that the second bunch of flowers sent to her by the respondent amount to evidence of sexual harassment by Mr. A (husband of Mrs. A).

It is agreed that 2 bouquets of flowers were delivered to the complainant and that both bouquets of flowers came from the respondent. It is also agreed that both bouquets of flowers were returned to the respondent by the complainant.

The respondent advised the hearing that the first bunch of flowers had been brought back to the shop by the complainant’s husband after the complainant had indicated to the respondent that she did not like lilies and the second bunch of flowers had been brought back to the shop by the complainant herself.   Witness for the respondent Ms. L who had worked with the complainant in the shop stated that the complainant had brought the second bunch of flowers into the shop herself and had told her that she thought Mrs. A had sent them to her to cause trouble in the complainant’s marriage.   The complainant at the hearing in response to this stated that she had brought the second bunch of flowers to the shop as she believed that they had been sent to her by Mr. A.

I note that the complainant had expressed dissatisfaction with the first bunch of flowers and had returned them to the respondent. She then received a second different bouquet of flowers from the respondent and returned them for a different reason.   I also note that the complainant’s former work colleague Ms. L told the hearing that the complainant upon returning the second bunch of flowers to the shop had told her that she believed that Mrs. A had sent the flowers to cause trouble in the complainant’s marriage.   The complainant at the hearing stated that she believed that the flowers were sent by Mr. A and amount to evidence of sexual harassment.

Having given this matter a great deal of consideration and given that the complainant was at the time off sick following an injury at work, during which she received a delivery of flowers from the respondent and after expressing her dissatisfaction with the first bunch of flowers then received a second delivery of different flowers I am not satisfied having regard to all of the circumstances that the delivery of the second bunch of flowers constitutes an act of harassment or sexual harassment.

I note that the complainant only submitted this complaint on the 12th of August 2018 despite the fact that her last day in work was on the 10th of February 2018. I also note that her employment was terminated on the 16th of February and that she submitted other complaints on the 31st of May and on the 4th of July 2018.   Accordingly given that this is the only alleged incident which took place inside of the cognisable 6 months prior to the submission of this complaint and on which the complainant is seeking to ground her case for harassment and sexual harassment I must conclude that in all of the circumstances of this complaint, I do not find that there were incidents of harassment/ sexual harassment within the cognisable period of the complaint.   Accordingly, I conclude that the complaint of harassment and sexual harassment is out of time.

Victimisation

The complainant submitted a claim of victimisation.

Section 74 of the Employment Equality Acts sets out the definition of Victimisation as follows

(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).

The Labour Court in Minister of Defence V Tom Barrett in a 2015 case EDA 1516, referred to the test for Victimisation as follows:

The employee had taken action of a type referred to at s.74(2) of the Acts (a protected act),

The employee was subjected to adverse treatment by the respondent, and,

The adverse treatment was in reaction to the protected action having been taken by the employee. (Dept. of Defence V Barrett) Bolger, Bruton and Kimber, 2012.

The complainant at the hearing did not provide any evidence of a protected Act followed by adverse treatment in reaction to that protected Act within the cognisable period for the purpose of grounding a claim of victimisation under the Employment Equality Acts. Accordingly, the claim of victimisation fails.

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 –

In all of the circumstances of this complaint, I do not find that there were incidents of harassment/ sexual harassment or victimisation within the cognisable period of the complaint.  Accordingly, I conclude that the complaint is out of time.